United States v. Charles Pollock, Jr. , 757 F.3d 582 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2764
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES W. POLLOCK, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:11-cr-10082-JES-JAG-1 — James E. Shadid, Chief Judge.
____________________
ARGUED APRIL 8, 2014 — DECIDED JULY 1, 2014
____________________
POSNER and
Before TINDER, Circuit Judges, and
LAWRENCE, District Judge. *
LAWRENCE, District Judge. A jury found Charles Pollock,
Jr. guilty of unlawful possession of a firearm, unlawful pos-
session of ammunition, and attempted witness tampering,
and Pollock was sentenced to 240 months in prison. Pollock
* Of the Southern District of Indiana, sitting by designation.
2 No. 13-2764
appeals his conviction and seeks a new trial; in the alterna-
tive, he challenges his sentence. We affirm.
I. BACKGROUND
Pollock’s troubles began in 2009 after a relationship with
his then-girlfriend ended. Pollock was convicted of aggra-
vated stalking after he violated an order of protection by fol-
lowing and threatening his ex-girlfriend. This felony convic-
tion prohibited him from possessing any firearms and am-
munition.
Thereafter, in April 2010, Pollock began a personal, yet
tumultuous, fifteen-month relationship with Kim Bowyer.
In June 2011, Bowyer accompanied Pollock to his moth-
er’s home in Kewanee, Illinois to retrieve his guns. They left
with several gun cases and shoeboxes and placed them in
the trunk of Pollock’s car.
By July 2011, Pollock and Bowyer’s relationship had be-
come abusive. On the evening of July 16, 2011, Pollock ab-
ducted Bowyer from her home and drove her to his house.
She claimed that while there, he restrained, threatened, and
raped her. After he finished, he discussed all of the evidence
Bowyer had against him and suggested that they both com-
mit suicide with a .45 caliber pistol he kept in his garage.
Bowyer reported this incident to the police, 1 and the po-
lice began investigating Pollock. On July 20, 2011, Pollock’s
friend Todd Clayes visited Pollock at his home. The two men
drank numerous beers and smoked marijuana. At some
1
Pollock was charged with battery, aggravated kidnapping, and aggra-
vated sexual assault, among other charges. He was acquitted of all
counts after a jury trial in an Illinois state court.
No. 13-2764 3
point during the evening, Pollock showed Clayes a semiau-
tomatic pistol and then put it in the trunk of his car, which
already contained boxes. The next day, law enforcement of-
ficers executed a search warrant and searched Pollock’s
home. They found two high-capacity rifle magazines and
bullets in his dresser drawer. The police then arrested Pol-
lock.
While in jail, Pollock phoned Clayes and told him to re-
move the “stereo” from his car. Knowing this meant Pollock
wanted him to remove the guns that were located in his
trunk, Clayes went to Pollock’s home, destroyed the trunk
lock with a hammer, and removed the guns. Clayes took
them to Pollock’s mother’s home.
The police were monitoring Pollock’s jail phone conver-
sations and eventually questioned Clayes about the guns.
Clayes admitted that he retrieved the guns and told the po-
lice he took them to Pollock’s mother’s home. He eventually
turned over nine guns to the police.
Pollock was initially charged with unlawful possession of
a firearm and unlawful possession of ammunition. However,
a charge of attempted witness tampering was later added
because in the months leading up to trial Pollock wrote
Clayes a letter suggesting that he “disappear,” “hide,” or
“leave [the] state” so he would not be available to testify at
his trial.
The case proceeded to trial, and a jury found Pollock
guilty of all three counts. At the sentencing hearing, the dis-
trict court applied the cross-reference found in section 2K2.1
of the United States Sentencing Guidelines, finding that Pol-
lock committed the firearm offense in connection with ag-
4 No. 13-2764
gravated sexual abuse. The district court agreed with the
Government’s argument that Pollock’s threat of killing him-
self and Bowyer with the .45 caliber pistol after discussing
all of the evidence Bowyer might use against him—
essentially, threatening her so she would not report what
happened to the police—was enough to meet the “in connec-
tion with” requirement of the provision. With a criminal his-
tory category of IV, using the base offense level for the ag-
gravated sexual abuse, and applying several other enhance-
ments, Pollock’s advisory Guideline range was 360 to 480
months. The district court imposed a below-Guidelines sen-
tence, sentencing Pollock to 120 months imprisonment on
Counts One and Two, to run concurrently, and 120 months
imprisonment on Count Three, to run consecutively, for a
total sentence of 240 months.
II. DISCUSSION
On appeal, Pollock challenges an instruction given to the
jury, certain remarks made by the prosecutor, and his 240-
month sentence. We address each challenge in turn.
A. Jury Instruction
Pollock challenges the instruction the jury was given
with regard to Count I, the felon in possession charge. The
relevant instruction stated that the Government had to prove
that “the defendant knowingly possessed a firearm[.]” Pol-
lock argues that this instruction was given in error because it
did not instruct the jury that it must unanimously agree that
he possessed a specific firearm in order to convict him under
18 U.S.C. § 922(g).
As a preliminary matter, the Government argues that
Pollock waived any “specific firearm” challenge because he
No. 13-2764 5
did not object to the instruction below. See United States v.
Pree, 408 F.3d 855, 872 (7th Cir. 2005) (“‘The right to object to
jury instructions on appeal is waived if the record illustrates
that the defendant approved of the instructions at issue.’”)
(quoting United States v. Griffin, 84 F.3d 912, 924 (7th Cir.
1996)). Pollock did make some type of objection to the in-
struction at issue, 2 so his challenge is not waived. However,
nowhere does the record reflect that Pollock objected to the
instruction on the grounds that it lacked the “specific fire-
arm” language. Because he did not challenge the instruction
on the same grounds below, Pollock forfeited this challenge,
and our review is for plain error only. See United States v.
DiSantis, 565 F.3d 354, 362 (7th Cir. 2009) (“DiSantis’s objec-
tion at trial focused on the lack of a causation requirement,
while his objection on appeal focuses on the breadth of the
definition of bodily injury. Since DiSantis’s objections at trial
and on appeal are substantively different, we will limit our
review of the instruction for plain error.”).
Turning now to the merits of Pollock’s challenge, Pollock
insists that possession of a specific firearm is an element of
§ 922(g), and thus a jury must unanimously agree as to the
specific firearm he possessed. In support, Pollock directs us
to Richardson v. United States, which held that a federal crim-
inal jury must unanimously agree to all the elements of a
crime in order to convict, but need not agree on the underly-
ing brute facts that are merely the means used to satisfy an
element. 526 U.S. 813, 817 (1999). In Richardson, the Supreme
2
The objection appears to have been to instructing the jury at all on the
firearms charge, as Pollock moved for a directed verdict on Count I. His
motion was denied, and the district court gave the contested instruction
over his objection. See Trial Tr. at 432-37.
6 No. 13-2764
Court was tasked with deciding if a jury in a continuing
criminal enterprise case had to unanimously agree as to the
specific violations that made up the continuing series. It ex-
amined the language and tradition of the pertinent statute in
order to determine congressional intent and also examined
the potential unfairness that would befall defendants if the
predicate offenses were not deemed to be elements. Ulti-
mately, the Supreme Court held that each predicate violation
was an element of the offense, and therefore needed unani-
mous jury agreement. Id. at 820. Relying on Richardson,
therefore, Pollock argues that possession of a specific firearm
is an element of a felon in possession charge. We disagree.
The First Circuit examined this exact issue in United
States v. Verrecchia, and concluded that possession of a spe-
cific firearm was not an element of the offense. 196 F.3d 294,
301 (1st Cir. 1999). We find its reasoning persuasive. First, it
noted that “the plain language of the statute suggests that
the element of the crime is simply the possession of ‘any
firearm.’” Id. at 299. This is true; § 922(g) provides, “it shall
be unlawful for any person … who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year … to … possess in or affecting com-
merce, any firearm or ammunition[.]” (emphasis added). Fur-
ther, in looking at other provisions of § 922(g), it is clear that
“the emphasis … [is] on the categories of persons prohibited
from possessing firearms rather than the type of firearm
possessed.” United States v. DeJohn, 368 F.3d 533, 541 (6th Cir.
2004). Similarly, as the First Circuit noted, the legislative his-
tory of § 922(g) “demonstrate[s] that Congress’s emphasis
was again ‘on the person, not the firearm.’” Id. (quoting Ver-
recchia, 196 F.3d at 300). Thus, the language and history of
the statute reflects the desire of Congress to keep any firearm
No. 13-2764 7
out of the hand of convicted felons, regardless of the gun
type.
Turning to the other two Richardson factors, we concur
with the First Circuit’s conclusion that “we are not aware of
[] any legal tradition that sheds light on the question before
us.” Verrecchia, 196 F.3d at 301. Pollock argues that prior to
the enactment of § 922(g), Congress criminalized only specif-
ic weapons; however, as noted above, the legislative history
of § 922(g) itself reflects a conscious decision made by Con-
gress not to prohibit felons from possessing only certain fire-
arms, but rather any and all firearms. Finally, we disagree
with Pollock that there is “potential unfairness” in treating
the firearm as a brute fact and not an element. As the First
Circuit noted, “[e]ach possession of a firearm by a felon is of
equal seriousness, a fact that mitigates the significance of po-
tential juror disagreement about which firearms are pos-
sessed.” Id. Unlike Richardson, “[j]uror disagreement about
which gun was possessed would not mean that jurors be-
lieved the defendant to be guilty of different crimes of wild-
ly varying seriousness.” DeJohn, 368 F.3d at 541. If one juror
believed the defendant possessed a rifle, but a different juror
believed the defendant possessed a shotgun, both would still
be in agreement that the defendant possessed “any firearm.”
The statute clearly states that possession of any firearm
by a convicted felon is prohibited. Accordingly, “the particu-
lar firearm possessed is not an element of the crime under
section 922(g), but instead the means used to satisfy the ele-
ment of ‘any firearm.’” Id. at 542. We thus see no error, let
alone plain error, in the instruction the district court gave to
the jury.
8 No. 13-2764
B. The Government’s Improper Statements
Next, Pollock claims he was denied a fair trial and sen-
tencing hearing because the prosecutor mischaracterized cer-
tain pieces of evidence. Because Pollock did not object to
these alleged mischaracterizations below, our review is for
plain error only. United States v. Phillips, 745 F.3d 829, 834
(7th Cir. 2014).
When a defendant challenges certain statements made by
a prosecutor, we engage in a two part inquiry: first, we de-
termine if the statements were improper; and second, we de-
termine if the statements deprived the defendant of a fair
trial. United States v. Wolfe, 701 F.3d 1206, 1211 (7th Cir.
2012).
We consider five factors to determine whether the
remarks prejudiced the defendant: ‘(1) the nature and
seriousness of the misconduct; (2) the extent to which
the comments were invited by the defense; (3) the ex-
tent to which any prejudice was ameliorated by the
court’s instruction to the jury; (4) the defense’s oppor-
tunity to counter any prejudice; and (5) the weight of
the evidence supporting the conviction.’
Id. (quoting United States v. Adams, 628 F.3d 407, 418-19 (7th
Cir. 2010)).
We begin with the mischaracterization that the Govern-
ment concedes occurred six times during the trial. The pros-
ecutor repeatedly stated that Clayes saw a .45 caliber semiau-
tomatic pistol the night he was at Pollock’s home. This was
incorrect. Clayes’ actual testimony was that he saw “a pistol,
a semiautomatic pistol,” but he did not mention the caliber
No. 13-2764 9
or any other identifying characteristic. Despite this error, the
Government argues that the addition of the caliber was a
minor detail and did not deprive Pollock of a fair trial. We
agree.
Pollock does not dispute that Clayes’ unequivocal testi-
mony was that Pollock showed him “a pistol, a semiauto-
matic pistol.” The “.45 caliber” was a minor detail that the
prosecutor seemingly inadvertently added to this fact, and
his addition of this detail was not “serious misconduct.” Fur-
ther, during his closing argument, Pollock’s counsel pointed
out to the jury that Clayes never said he saw a .45 caliber
semiautomatic pistol, just that he saw a semiautomatic pis-
tol. He therefore had at least some opportunity to correct the
prosecutor’s error. Finally, the weight of the evidence
against Pollock cuts against his argument that the “.45 cali-
ber” addition deprived him of a fair trial. As the Govern-
ment notes, the fact that Pollock showed Clayes a semiauto-
matic pistol and then placed it in the trunk of his car, along
with other boxes that eventually revealed more guns, may
have led the jury to conclude that Pollock placed, and thus at
one time possessed, all of the guns in the trunk of his car.
Appellee’s Br. at 43. But, the fact that the gun was specifical-
ly a .45 caliber pistol adds little to that inference. Id.Of course, the prosecutor in this case should have been
more prudent in ensuring he accurately summarized Clayes’
testimony, but the misstatements certainly do not support
Pollock’s contention that he was denied a fair trial. Pollock
has failed to establish that “the outcome of the proceedings
would have been different” had the prosecutor correctly
stated that Clayes testified that he only knew the gun Pol-
lock showed him was a semiautomatic pistol. United States v.
10 No. 13-2764
Bowman, 353 F.3d 546, 550 (7th Cir. 2003) (quoting United
States v. Anderson, 303 F.3d 847, 854 (7th Cir. 2002)).
With regard to the sentencing hearing, Pollock argues
that the prosecutor mischaracterized Bowyer’s testimony.
Bowyer testified about the moments following her rape as
follows:
He [Pollock] says you’ve got one hell of an alimony
[sic]. He says, you got DNA. I’m sure that they will
fingerprint the truck. You got your daughter as a wit-
ness that he took me. He says, you got one alibi. He
says, we might just end it now … He says that we
should go out to the garage and he had a 45 hidden
out in the garage somewhere and put our heads to-
gether and blast our brains out, one shot.
Sentencing Tr. at 34. At sentencing, the Government summa-
rized this testimony as follows:
He made the comment, well, you have my DNA; you
could really get me in a lot of trouble. So he is trying
to convince her not to go to the authorities. He is
threatening her with the .35 [sic] and at that time the
kidnapping is still a continuing offense.
Id. at 89-90.
Pollock first objects to the insertion of the word “my” be-
fore “DNA,” arguing that the DNA Bowyer testified about
referred to DNA evidence on the truck, not Pollock’s semen.
We disagree. DNA evidence is not the same as fingerprint
evidence, and Pollock only referenced the truck with regard
to his fingerprints. However, assuming Pollock thought fin-
gerprints could leave DNA, Bowyer clearly testified that Pol-
lock discussed the evidence she “had” against him before
No. 13-2764 11
suggesting they kill themselves. Whether this evidence she
“had” against him came in the form of fingerprints or DNA
from the rape is not dispositive.
Pollock also argues that Bowyer’s testimony does not re-
flect that she felt Pollock was threatening her in order to
prevent her from reporting the incident to the police. Thus,
he argues that the prosecutor generally mischaracterized her
testimony. We disagree. A logical inference to be drawn
from Bowyer’s testimony is that Pollock threatened her to
prevent her from going to the authorities. Pollock may disa-
gree with the inference the Government drew from her tes-
timony, but this does not mean the prosecutor mischaracter-
ized it. 3
In short, the prosecutor did not mischaracterize Bowyer’s
testimony at the sentencing hearing, and his addition of such
a minor detail—the fact that the pistol was a .45 caliber—
during the trial did not deprive Pollock of a fair trial.
C. Pollock’s Sentence
Pollock’s final contention on appeal is that his sentence
should be vacated because it is procedurally and substan-
tively flawed. Because Pollock challenges both his sentence’s
procedural soundness and substantive reasonableness, we
employ two standards of review. “First, we conduct a de no-
vo review for any procedural error. If we determine that the
district court committed no procedural error, we review the
3
In fact, Pollock did disagree with this inference at the sentencing hear-
ing. He argued that “[t]here is no continuing abduction and there is no
attempt to conceal anything … these are words spoken by somebody
who is depressed as opposed to attempting to conceal any past crime.”
Sentencing Tr. at 90.
12 No. 13-2764
sentence for substantive reasonableness under an abuse-of-
discretion standard.” United States v. Marin-Castano, 688 F.3d
899, 902 (7th Cir. 2012) (internal citations omitted). We note
that Pollock received a below-Guidelines sentence which “is
presumed reasonable against a defendant’s challenge that it
is too high.” United States v. Poetz, 582 F.3d 835, 837 (7th Cir.
2009).
First, Pollock argues that the district court did not ade-
quately address the 18 U.S.C. § 3553(a) factors. With regard
to these factors, the district court noted the following:
Okay. The Court having considered the information
before it. The Presentence Report is prepared by pro-
bation which includes sentencing guideline calcula-
tions, the defendant’s commentary on sentencing fac-
tors, and the attachments, letters from individuals, the
government’s commentary, the arguments of counsel,
the statement of Mr. Pollock, the factors as set forth in
3553, which include the nature and circumstances of
the offense, the history and characteristics of the de-
fendant, the need for the sentence imposed to reflect
the seriousness of the offense to promote respect for
the law and provide just punishment for the offense,
to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defend-
ant, and to provide the defendant with educational or
vocational training, medical care or other correctional
treatment in the most effective manner. I believe that
after factoring all of these matters that this sentence is
sufficient but not greater than necessary to comply
with the purpose of the Act.
…
No. 13-2764 13
Now, as I said earlier, Mr. Pollock, you are—believe
that you are being singled out for everything because
of Kim Bowyer. The fact that you are being sentenced
for the guns, the ammunition, and for the tampering
with the witness has little to do with Kim Bowyer and
everything to do with you.
Sentencing Tr. at 124-25; 128. The Court then referenced par-
agraph 63 of the Presentence Investigation Report, which
concluded that Pollock suffered from narcissistic personality
disorder and noted that he “sees his conflicts with other
people as being created by them and therefore, he sees no
need to change.” The district court noted that these traits
were “abundantly clear by spending any amount of time
with you as we have.” Id. at 129.
Pollock argues that “[t]he district court’s cursory atten-
tion to the § 3553(a) factors provides this Court with no in-
formation as to why Pollock received a 20-year sentence and
therefore hinders meaningful appellate review.” Appellant
Br. at 33. We disagree. A “district court is not required to re-
cite and address each of the § 3553(a) sentencing factors, or
all of a defendant’s arguments for a lighter sentence.” United
States v. Lyons, 733 F.3d 777, 785 (7th Cir. 2013). “[T]he sen-
tencing judge can discuss the application of the statutory fac-
tors to the defendant not in checklist fashion but instead in
the form of an adequate statement of the judge’s reasons,
consistent with section 3553(a), for thinking the sentence that
he has selected is indeed appropriate for the particular de-
fendant.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.
2005). It is clear from reviewing the district court’s state-
ments—including those noted below—that it found the seri-
ous nature of Pollock’s crimes to be a key factor. He pos-
14 No. 13-2764
sessed guns and ammunition, which he was prohibited from
having, threatened Bowyer with one of those guns, and then
attempted to prevent a key witness from testifying against
him. The district court also factored in Pollock’s own history
and characteristics and the need to deter him from commit-
ting future crimes, especially in light of the finding that he
takes no responsibility for his actions, but rather, blames
others. Pollock’s cursory argument on appeal regarding the
§ 3553(a) factors does not direct us to anything specific that
the district court failed to consider or take into account, and,
in all we are satisfied with the district court’s reasoning. 4
Next, Pollock argues that the district court committed
several errors in imposing a consecutive ten-year sentence
for attempted witness tampering. The district court said the
following at sentencing:
Now 5K2.9 sets forth the criminal purpose: commit-
ted the offense in order to facilitate or conceal the
commission of another offense. I believe that’s the
case here. When the defendant was under federal in-
dictment for Count III – was under federal indictment
for Counts I and II when Count III was committed
and the enhancement for the level for obstruction of
justice, the two point enhancement, I don’t think ade-
quately accounts for the nature and circumstances of
the offense, so therefore a consecutive sentence, I be-
lieve, is necessary as to Count III.
4
While Pollock does not argue that the district court failed to consider
his arguments in mitigation, we note that the district court heard and
received evidence regarding Pollock’s church attendance and Bible
course completion.
No. 13-2764 15
Sentencing Tr. at 125-26. Pollock argues that the ten-year
sentence is procedurally flawed because the district court
did not adequately explain why such a sentence was neces-
sary. He also argues that the sentence is substantively unrea-
sonable because his “conduct was nothing more than gar-
den-variety attempted witness tampering[.]” Appellant’s Br.
at 34. We disagree. While Pollock may believe the letters he
sent to Clayes were mere “garden-variety” attempts to pre-
vent him from testifying, clearly the district court did not
agree, explaining that the mere two-level enhancement did
not adequately account for the serious nature of Pollock’s
actions. Throughout his brief, Pollock himself notes that
Clayes was the Government’s “star witness,” id. at 26, and
“the only witness in this felon-in-possession prosecution
who actually saw a firearm,” id. at 31. This cuts against his
attempt to classify his conduct as mere “garden-variety”
witness tampering. The district court felt that a more severe
punishment was warranted, and we are satisfied with both
its justification and length.
Finally, Pollock argues that the district court erred pro-
cedurally in applying the cross reference found in U.S.S.G.
§ 2K2.1(c). This section allows a district court to cross refer-
ence to a higher base offense level—in this case, the base of-
fense level for criminal sexual abuse found in § 2A3.1—if
“the defendant used or possessed any firearm or ammuni-
tion in connection with the commission … of another of-
fense[.] The Guidelines further define “in connection with”
as follows: “if the firearm or ammunition facilitated or had
the potential of facilitation, another felony offense or another
offense respectively.” § 2K2.1, cmt. 14(a). The district court
stated the following at the sentencing hearing with regard to
the application of the cross reference:
16 No. 13-2764
On the first issue of cross-referencing, in the calcula-
tions of the guideline levels as pursuant to that, I'm
going to find for the government and the probation's
position as follows: I’m aware that the defendant was
acquitted in state court. I’m also aware that this cross-
referencing can be applied, whether or not a convic-
tion was obtained. Now having said that, I am—I
would say “cautious” in making some determination
when there was a jury verdict on the issue, but I am
specifically referencing or referring here to then the
point in time where I believe—and I realize the stand-
ard is by preponderance of the evidence, whereas the
jury verdict would have been beyond a reasonable
doubt, and to establish a connection with the commis-
sion of or attempted commission of another offense.
I’m focusing solely on the issue of the .45 caliber
weapon. The mention of suicide and what, as my in-
terpretation actually, based on Miss Bowyer’s testi-
mony, would be that it would be a murder suicide is
what it would be because she wasn’t agreeable to tak-
ing her own life. I’m not sure frankly, Mr. Pollock
would have either, but there can be no question with
the belief of Miss Bowyer at that time was that Mr.
Pollock could and would do it; that he was capable of
doing it. The restraint of her movement continued
throughout this time and at the very least a reasona-
ble inference could be that letting her know what he
could do if she went to authorities. So I believe by a
preponderance of the evidence on that issue, the gov-
ernment has prevailed.
Sentencing Tr. at 98-99.
No. 13-2764 17
Before we address the district court’s use of the cross-
reference, Pollock makes several preliminary challenges to
its application. He argues
the district court failed to: 1) make the threshold find-
ing that the alleged sexual abuse occurred or explain
how it could so find by a preponderance of the evi-
dence; 2) state why it credited one of three incon-
sistent versions of the event that Bowyer gave in her
testimony; and 3) state why it credited Bowyer over
Pollock, given the many inconsistencies in her story
and the lack of inconsistency in his.
Appellant’s Br. at 37. We review these challenges to the fac-
tual findings made by the district court for clear error. United
States v. Mitchell, 635 F.3d 990, 993 (7th Cir. 2011).
Pollock quibbles that the district court’s findings were
not explicit enough. However, we have held that even “in
the fact of a paucity of explicit findings by the sentencing
judge” implicit findings will suffice as long as there is “suffi-
cient, objective evidence in the record” to support the find-
ings. United States v. Locke, 643 F.3d 235, 244-45 (7th Cir.
2011); see also United States v. Smith, 218 F.3d 777, 783 (7th
Cir. 2000) (“As we have said, these findings may be bare
bones and perhaps more could have been done by the court
to set forth its reasoning as clearly as possible, but the fact
that more could have been said does not compel us to vacate
Smith’s sentence.”). Further, all of the above arguments cen-
ter on the district court’s credibility determinations, which
are entitled to “great deference.” Ray v. Clements, 700 F.3d
993, 1021 (7th Cir. 2012).
18 No. 13-2764
Indeed, there was “sufficient, objective evidence in the
record” that sexual abuse did occur. The district court
acknowledged the fact that Pollock was acquitted of rape,
among other charges, in state court—explaining that he was
“cautious” in his determination. Nevertheless, the district
court correctly noted that the standard for applying the cross
reference was preponderance of the evidence rather than be-
yond a reasonable doubt. Bowyer unequivocally testified, in
detail, about the events of July 16, 2011, 5 and the district
court clearly credited her testimony. In this “he said, she
said” scenario—Pollock denied ever raping Bowyer—it is
unclear what more Pollock wanted the district court to say.
Given Pollock’s prior turbulent relationship and his tenden-
cy to blame others for his problems, we cannot say that the
district court’s credibility determination and sexual abuse
finding were clearly erroneous. In short, the district court
crediting Bowyer’s version of events—that a sexual attack
did occur—was not clearly erroneous.
Finally, we address the applicability of the cross refer-
ence. Pollock argues that the Government “did not demon-
strate the required nexus between the firearm allegedly ref-
erenced by Pollock and the alleged sexual assault” because
“the alleged sexual activity was over before any mention of a
firearm.” Appellant’s Br. at 44. As noted above, the district
5
Pollock also makes much about Bowyer’s allegedly “internally incon-
sistent” statements. Appellant’s Reply Br. at 13, n. 11. On July 17, 2011,
Bowyer gave a statement to the police, stating that Pollock abducted,
raped, and threatened her and told her that he wanted to kill himself. On
July 18, 2011, Bowyer clarified that Pollock talked about both of them
ending their lives with his .45 caliber gun. We do not find these state-
ments to be inconsistent.
No. 13-2764 19
court applied the cross reference, finding that Pollock’s men-
tioning of the .45 caliber pistol continued to restrain Bow-
yer’s movement such that she could not report the incident
to the police. While the relationship between the sexual
abuse and the gun may seem attenuated to Pollock, we con-
cur with the Government’s view: rape is not just an act of
sex, but rather is an act of violence used to demean, domi-
nate, and intimidate the victim. Thus, after the sex act was
over, Bowyer very much was still under the control of Pol-
lock. We believe that suggesting—or threatening—to kill her
after discussing all of the evidence she allegedly “had”
against Pollock was sufficiently “in connection with” this act
of violence. The district court did not err in applying the
cross reference.
III. CONCLUSION
Pollock’s conviction and sentence are AFFIRMED in all
respects.