USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1059
UNITED STATES OF AMERICA,
Appellee,
v.
HAROLD L. DOLLOPH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Keeton,* District Judge.
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Thomas A. Zonay, by Appointment of the Court, with whom Carroll,
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George & Pratt was on briefs for appellant.
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Peter E. Papps, First Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for the United
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States.
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February 1, 1996
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*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. On July 21, 1994, Harold Dolloph
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pled guilty to one count of possessing child pornography,
four counts of transporting minors for purposes of engaging
in sexual activity, and one count of possessing a prohibited
firearm. 18 U.S.C. 2252(a)(4)(B), 2423; 26 U.S.C. 5861.
At the sentencing hearing on December 19, 1994, the district
judge departed upward two levels from the applicable
guideline range of 168 to 210 months and sentenced Dolloph to
240 months imprisonment. Dolloph now appeals from his
sentence, raising several different issues.
The facts, which we briefly summarize, are taken from
the presentence report, sentencing hearing transcript, and
submissions at sentencing. United States v. Egemonye, 62
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F.3d 425, 426 (1st Cir. 1995). At various times prior to
September 1993, Dolloph's four great-nieces--all children of
the same mother--stayed at Dolloph's home in Swanzey, New
Hampshire. In that month, their mother told her children
that they would be staying with Dolloph again while she moved
their household to a new residence. At that point two of her
daughters, aged eight ("TL8") and eleven ("TL11"), said that
Dolloph had sexually abused them on their prior visits.
Dolloph was then indicted by a federal grand jury. The
two girls, TL8 and TL11, told the police that while staying
with Dolloph in July 1993 he had engaged in sexual activity
with them; the activity they described potentially amounted
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to statutory rape, involved a variety of other practices
commonly described as unnatural or degrading, and included
the taking of lascivious photographs of the girls by Dolloph
as well as some of TL11 in handcuffs. As described by the
girls, the conduct had occurred in various forms on several
different occasions.
Based on these reports and some corroborating evidence,
the police obtained a search warrant and searched Dolloph's
apartment. What they found included sexually explicit
photographs of TL8 and TL11, video tape showing Dolloph in a
sexual encounter with TL8, and other tape and photographs
indicating that Dolloph had abused other young girls.
Dolloph was arrested. When questioned, he denied ever having
had sexual relations with his two nieces but he admitted to
lesser acts of abuse. The latter were, in any event,
documented by photos and video tape.
Dolloph was then indicted by a federal grand jury. In
the superseding indictment returned on January 20, 1994,
Dolloph was charged in 11 counts; 10 related to misconduct
involving the children and the last charged Dolloph with
unlawful possession of a sawed-off shotgun that the police
had found in their search of his apartment. After a
psychiatric examination found Dolloph competent to stand
trial, he pled guilty, on July 21, 1994, to the six counts
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described above, five relating to the children and one to the
weapon.
At a sentencing hearing on December 19, 1994, the
government presented a psychologist, Dr. Margaret Ward, who
testified that TL8 had suffered psychological damage "more
severely than most children that I have seen that have
experienced the nature and duration of what she experienced."
Dr. Ward said that this might well also be true of TL11.
Ultimately, the court calculated the offense level as 35 and
departed upward by two levels to level 37. The court
sentenced Dolloph to 240 months, somewhat above the midpoint
for level 37.
1. On this appeal, Dolloph's main attacks are upon this
upward departure. The presentence report identified as a
potential ground of departure U.S.S.G. 5K2.3, which permits
a court to depart upward "[i]f a victim or victims suffered
psychological injury much more serious than that normally
resulting from commission of the offense. . . ." The
government did not urge any other basis for a departure prior
to the hearing, and its expert witness--Dr. Ward--testified
in accord with section 5K2.3.
United States v. Burns, 501 U.S. 129, 138-39 (1991),
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says that the defendant must be given advance notice if the
district judge proposes to depart on any ground not
identified in the presentence report or by a government
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submission filed in advance of the hearing. Here, says
Dolloph, the district court violated this precept by relying,
in addition to psychological damage, upon other grounds for
departure not identified in advance. The argument has some
force but we think not quite enough.
That the departure rested primarily upon the damage to
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the two girls is patent. We construe de novo the district
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court's remarks at the sentencing hearing and his two page
written "departure explanation." Both stress, in
organization and emphasis, the court's finding that TL8 had
suffered "severe psychological injury of a nature beyond the
norm"; and the written explanation, contains an explicit
finding, by a preponderance of the evidence, that TL11
suffered in the same way. The district judge said that the
sentence "should reflect the nature of the injury that
[Dolloph] inflicted on these girls." Section 5K2.3 was cited
in the written explanation.
But--Dolloph points out--both at the hearing and in the
written explanation, the district court referred to the
particularly insulting and degrading sexual activity and the
fact that Dolloph had abused a relationship of trust that he
himself had cultivated. The judge also cited to U.S.S.G.
5K2.1; other record evidence indicates that the intent was to
refer instead to section 5K2.0, which is the catch-all
departure provision allowing departures for factors "of a
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kind, or to a degree, not adequately" accounted for in the
guidelines. Id. (quoting 18 U.S.C. 3553(b)).
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The unusually degrading nature of the conduct could be
an independent basis for departure under U.S.S.G. 5K2.8,
although no advance notice of this ground was provided.
Dolloph's relationship to the victims was considered in
fixing the offense levels, id. 2A3.1(b)(3), 2G2.1(b)(2),
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so his betrayal of the relationship might or might not be an
independent basis, depending on whether it was present "to a
degree substantially in excess of that which ordinarily is
involved in the offense." Id. 5K2.0. And, in any event,
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Burns' requirement of advance notice was apparently not met
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in either case.
It is unlikely that the references to egregious behavior
and breach of trust were intended by the trial judge as
independent grounds for the departure. In the written
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explanation, the judge spoke of the egregious conduct as
already described, and he followed it immediately by saying
that the victims, particularly the younger, suffered and
would likely continue to suffer well into the future. In
other words, the court was focusing on the conduct to explain
the extent of the damage it inflicted. See, e.g., United
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States v. Anderson, 5 F.3d 795, 805 (5th Cir. 1993), cert.
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denied, 114 S. Ct. 1118 (1994).
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Dr. Ward also related the damage suffered by TL8 to the
nature of Dolloph's behavior ("in the more severe part of the
continuum") and to his family relationship; as to the latter
relationship, Dr. Ward said that TL8's connection with the
defendant "allowed her to fear the loss of [their]
relationship." The suggestion may be that the betrayal of
trust enhanced the damage. Again, the district court's
written discussion of the fiduciary breach occurs in the
middle of an extensive discussion of the causes and evidence
of severe damage.
Finally, it was the prosecutor who suggested a departure
on account of damage to the victims, citing both guideline
sections (5K2.0 and 5K2.3). Thus, the court's reference to
the earlier section is easily explained. And the district
court's discussion of departure, from which isolated remarks
have been quoted, overlapped with the court's broader
explanation of why it was choosing the particular sentence
within the finally selected guideline range.
Faced with uncertainty, we have sometimes remanded or at
least asked the district court to clarify its sentencing
rationale. United States v. Quinones, 26 F.3d 213, 219-20
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(1st Cir. 1994). In deciding whether to remand or inquire,
the degree of uncertainty is the main element, but other
factors sometimes play a silent role: the extent of the
departure, objective ambiguity in the transcript, the nature
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of the possible mistake, and a realistic appraisal of whether
a different outcome on remand is possible.
Here, there is no realistic possibility of a different
result on remand. Dr. Ward's testimony, coupled with other
evidence, amply supported the departure based on damage
alone, and damage was certainly the district court's
principal theme. If the disputed references to degrading
conduct and betrayal were struck, we have no doubt whatever
that the district court would impose the same two level
enhancement--and 30 additional months--as before. If error
occurred, and we doubt it did, it was assuredly harmless.
See United States v. Ortiz, 23 F.3d 21, 28 (1994).
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There is no merit to Dolloph's other attacks on the
departure. Dr. Ward admitted that she had not interviewed
the children but had worked from interview transcripts and
other records; and she did not provide a detailed description
of what would constitute only "normal" damage. But these
matters went to the weight of the evidence. Dr. Ward was
qualified, subjected to cross-examination, and supported in
various respects by other evidence including one of Dolloph's
own videotapes, the presentence report, victim impact
statements, and medical information.
Dolloph also complains that as to TL11, Dr. Ward herself
was unable to say, "to a reasonable degree of medical
certainty," that the harm was abnormally severe; she said
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there was a "reasonable . . . indication" to that effect.
However, the district court itself made a finding of abnormal
damage under the preponderance standard. Given the evidence
available here, the defendant's conduct and the damage
ascribed to the children were within a layperson's ken.
Under the clear error standard, the court's finding is easily
sustained. United States v. Joyce, 70 F.3d 679, 681-82 (1st
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Cir. 1995).
2. We turn now to the remaining challenges to the
sentence, starting with Dolloph's two main objections. They
derive from the intent of the guidelines in certain respects
to sentence the defendant for the "real" conduct underlying
the offense. United States v. Dominguez, 951 F.2d 412, 415
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(1st Cir. 1991), cert. denied, 504 U.S. 917 (1992). This is
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done partly by cross-references that--on proof of aggravating
facts--cause a defendant convicted of a crime to be sentenced
under the more severe guideline pertaining to the aggravating
conduct.
In our case, the guidelines governing both of the sexual
offenses to which Dolloph pled--possession of pornography and
transportation of a minor--have base offense levels of "only"
13 and 16, respectively. U.S.S.G. 2G2.4, 2G1.2. Yet,
each contains a cross-reference that makes applicable a
considerably higher base offense level of 25, under U.S.S.G.
2G2.1, if the offense conduct included "causing [or]
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transporting . . . a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of
such conduct. . . ."
The presentence report found or indicated that as to
three of the counts Dolloph had caused the girls to engage in
such conduct (count 6) or transported them for that purpose
(counts 7 and 9), and the district court adopted the
findings. Dolloph contests this determination, arguing that
the evidence did not show that he invited the nieces to his
home for the purpose of photographing them; the photographs,
he says, showed that "the photographs were taken as a `mere
incident' of the trips." This claim is not supported by any
detailed factual argument.
Without a discussion by Dolloph of the pertinent
evidence, it is difficult to consider his contention.
Photographs, interview transcripts, and video tape evidence
were presented or available at the hearing, and the litigants
understood which child was involved in the various counts and
photographs and how the evidence related to each count and
sub-count (count six required several different photographs).
Very little of what the parties understood about specific
events can be easily reconstructed from the hearing
transcript itself.
There is some indication that Dolloph's argument rests
at least in part on a misconception. Both at the hearing and
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in his appeals brief, Dolloph's counsel relied primarily upon
language from United States v. Ellis, 935 F.2d 385 (1st
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Cir.), cert. denied, 502 U.S. 869 (1991). There, the trial
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court had instructed the jury that to violate the
transportation statute, having the child engage in sexual
activity must have been one of the purposes of the trip and
"not a mere incident of the trip." Id. at 389. This court
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upheld the charge, rejecting a claim that the illicit purpose
must be the "dominant" one. Id. at 390.
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Four of the cross-reference findings (pertaining to
count 6) involved "causing"--not transporting--so the Ellis
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language is irrelevant. The other two (counts 7 and 9)
apparently did rely on transporting; but since Dolloph tells
us little about the specific events, we have no basis for
concluding that the district court erred in accepting the
presentence report. How much weight should be given to the
presentence report is sometimes a matter of dispute; but in
this instance we have been given nothing to set against its
findings. See United States v. Gonzalez-Vazquez, 34 F.3d 19,
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25 (1st Cir. 1994).
Dolloph's second objection relates to a different cross-
reference. As to the other two counts involving transporting
a minor (counts 8 and 10), specifically TL8, the probation
report found, and the district court adopted the finding,
that Dolloph's conduct on those visits had involved "criminal
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sexual abuse." A cross-reference in the transportation
guideline, U.S.S.G. 2G1.2(c)(2), provides that in such a
case the sexual abuse guideline governs, and that guideline
provides a base offense level of 27. Id. 2A3.1. Broadly
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speaking, this latter guideline applies to conduct violating
18 U.S.C. 2241-42. U.S.S.G. 2A3.1, comment.(stat. provs.).
The cited code sections govern "sexual act[s]," as
defined by 18 U.S.C. 2245, which are made unlawful in
specified situations, of which the one most pertinent here
forbids sexual relations with children under twelve. 18
U.S.C. 2241(c). As Dolloph points out, the sexual abuse
chapter itself, id. 2241-45, is confined to conduct
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occurring in "the special maritime and territorial
jurisdiction of the United States or in a Federal prison."
E.g., 18 U.S.C. 2241(a). Because no such federal
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jurisdiction is asserted in this case, Dolloph objects to the
use of the cross-referenced guideline.
The argument is interesting but hopeless. Whatever the
offense plea, the defendant is ordinarily subject to
punishment for all "relevant conduct," including all acts and
omissions "that occurred during the commission of the offense
of conviction." U.S.S.G. 1B1.3(a)(1). Here, Dolloph does
not contest the principle. His present argument is that--
even assuming that his treatment of TL8 amounted to sexual
abuse as defined by the federal statutes--those statutes
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include a jurisdictional element not here satisfied.
Therefore, he concludes, the cross-reference is not
pertinent.
But the sexual abuse guideline is concerned with
identifying the proper penalty for the underlying sexual
conduct, here, the mistreatment of TL8. It is the plain
intent of the guidelines--specifically, the cross-reference
section that takes us to the sexual abuse guideline--to
punish Dolloph for that conduct. So long as the guidelines
so intend and the necessary proof is offered, a defendant may
ordinarily be punished for relevant conduct, whether or not
it includes conduct for which the court lacks independent
jurisdiction to try the defendant. United States v. Carroll,
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3 F.3d 98, 102-03 (4th Cir. 1993); United States v. Pollard,
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986 F.2d 44, 47 (3d Cir.), cert. denied, 113 S. Ct. 2457
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(1993).
Finally, Dolloph argues that the evidence did not
justify the district court finding that sexual acts were
performed against TL8. If one credits the statements of the
child, as the district court evidently did, there is no doubt
that Dolloph's conduct violated the sexual abuse statutes,
the jurisdictional element to one side. Dolloph demurs but a
comparison of what TL8 said happened with what the statute
forbids resolves the matter against him.
Affirmed.
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