ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Criminal No. 91-00210-01
Before: Mansmann and Nygaard, Circuit Judges and Dalzell, District Judge*fn*
Rodney Pollard appeals his conviction and sentence for several counts involving a conspiracy to kidnap or lure adolescent boys across a state line and commit sexual acts with them. Pollard's sole colorable contention on appeal was that it was improper for the district court to apply the criminal sexual abuse guideline because he was not charged with that offense. Because we conclude that there is no statutory or constitutional requirement that a defendant be charged with conduct before that conduct may be considered in sentencing, we will affirm.
Rodney Pollard and Dallas Craig were indicted on five counts of interstate transportation of a minor with intent to commit sex offenses in violation of 18 U.S.C. §§ 2422 and 2423, two counts of kidnapping for the purposes of engaging in sexual assault in violation of 18 U.S.C. § 1201, and one count of conspiracy to transport minors interstate for the commission of sex offenses in violation of 18 U.S.C. § 371. Craig entered a guilty plea to conspiracy and one count of interstate transportation of a minor with intent to commit sex offenses. A jury found Pollard guilty on all counts and the district court sentenced him to 262 months imprisonment pursuant to U.S.S.G. §§ 2A4.1 and 2A3.1.*fn1
The defendants' scheme, although shocking, was relatively simple. Pollard would approach boys in New York City, telling them that they had the physical appearance to become models and that he, as a talent agent, could help them. Through flattery and other inducements, such as promises of money and gifts, Pollard would lure boys to an apartment in New Jersey which he shared with Craig. When this technique failed, Pollard or Craig resorted to other measures, for example money in exchange for cleaning Craig's office. In one case, the method was more direct -- a blow to the head.
Once the boys were lured or kidnapped and brought to New Jersey, defendants would get friendly with them by allowing them to watch TV or play Nintendo. Defendants would then typically offer the boys drinks which had been surreptitiously laced with the tranquilizer benzodiazapine. After the boys became unconscious or drowsy, the appellant would sexually assault them.
The most serious crimes of which Pollard was convicted were the two kidnapping counts, 18 U.S.C. § 1201. Under the 1990 Sentencing Guidelines, U.S.S.G. § 2A4.1, kidnapping carries a base offense level of 24. The Guidelines, however, provide
if the victim was kidnapped, abducted, or unlawfully restrained to facilitate the commission of another offense: (A) increase by four levels; or (B) if the result of applying this guideline is less than that resulting from application of the guideline ...