U.S. v. Bolt, 83-1719

• Citation: 776 F.2d 1463
• Decision Date: 14 November 1985
• Docket Number: No. 83-1719,83-1719
• Parties: 19 Fed. R. Evid. Serv. 1119 UNITED STATES of America, Plaintiff-Appellee, v. James William BOLT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1463

776 F.2d 1463

19 Fed. R. Evid. Serv. 1119

UNITED STATES of America, Plaintiff-Appellee, v. James William BOLT, Defendant-Appellant.

No. 83-1719.

United States Court of Appeals, Tenth Circuit.

Nov. 14, 1985.

John Thomas Hall, Tulsa, Okl., for defendant-appellant.

Kenneth Snoke, Asst. U.S. Atty. (Layn R. Phillips, U.S. Atty., and Gerald Hilsher, Asst. U.S. Atty., were on brief), Tulsa, Okl., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, DOYLE, Circuit Judge, and BROWN, Senior District Judge ^*

WESLEY E. BROWN, Senior District Judge.

Following trial by jury the appellant James William Bolt was convicted on two counts of making material false statements to a federally insured bank, in violation of 18 U.S.C. Sec. 1014, and on two counts of mail fraud, in violation of 18 U.S.C. Sec. 1341. The two counts under 18 U.S.C. Sec. 1014 were treated as but one offense for sentencing purposes, and a sentence of eighteen months was imposed upon that conviction. In addition, appellant received a consecutive sentence of three years for mail fraud on Count III, and imposition of sentence was suspended for Count IV, the second mail fraud charge, pending a four year probation period, also consecutive to the prison terms which were imposed. Bolt now appeals his convictions, presenting various issues for our review.

Before proceeding to the legal aspects of Bolt's appeal, we first address his "Special Motion to Amend Docketing Statement" which was presented shortly before oral argument to this panel. The subject matter of this motion concerns alleged "new evidence" which supposedly is relevant to this appeal. In the first instance, Bolt requests that we consider information to the effect that after his conviction, and while he has been in custody of the United States Marshal in the Medical Center at Springfield, Missouri, "certain drugs were used upon him and that certain matters were discussed, totally in violation of his Constitutional rights to silence and his right to representation by counsel." Such evidence would be totally irrelevant to our review of trial proceedings in the District Court.

In addition, Bolt contends that he is in possession of "new evidence," which indicates that there may have been tampering with the exhibits presented to the jury, in that a "mug shot" was attached to his birth certificate which had been admitted in evidence. After reviewing the entire trial transcript we are satisfied that such allegation is without merit, for the record reflects that Bolt had a "clean record," without prior convictions giving rise to "mug shots." ¹

We further note that the trial court repeatedly directed counsel to go over all of the trial exhibits which would be submitted to the jury in order to ascertain their admissibility. For instance, at the close of oral arguments, and after instructions had been given to the jury, and just prior to sending out the jury for its final deliberations, the Court specifically instructed counsel in this manner: (Vol. VIII, Record, p. 874).

"THE COURT: Again I'm going to ask you gentlemen now, to make sure you're satisfied, on behalf of each party, of these exhibits that are going to accompany the jury with the marshal into the jury room, to make sure no exhibits go to the jury room that were not received in evidence or should not be going to the jury room. So I'm not interested at some subsequent time in one of you lawyers taking the position that exhibit thus and so went into the jury room and it shouldn't have because I'm placing the onus on you at this time to get together with the clerk and make sure his records jibe with yours concerning the proper exhibits received in this case and the proper exhibits that go into the jury room. Will you please do so." (Emphasis supplied.)

Bolt's Motion to Amend the Docketing Statement is Denied.

In order to give some background to our discussion of the issues in this case, we briefly summarize the ten count Indictment which was filed in open court on August 11, 1982.

Count I of the Indictment charged that on February 9, 1982, Bolt made a material false statement in a loan application to the federally insured City Bank and Trust Company of Tulsa in that he stated and represented that his true and correct name was Russ J. Woolf, when in fact his true and correct name was James William Bolt, all in violation of 18 U.S.C. Sec. 1014. ²

Count II of the Indictment charged that on that same date and in that same loan application, Bolt made a material false statement in that he stated and represented that he had purchased and was the owner of a 1981 Gibson Houseboat, 36 feet long of a certain serial number, when in truth and fact he had not purchased, and did not own such a boat, in violation of 18 U.S.C. Sec. 1014.

Count III of the Indictment charged that on May 13, 1982 Bolt, with intent to defraud Copy Systems of Tulsa, did falsely make and counterfeit "a bank note in the form of a check," payable to Copy Systems of Tulsa, in the amount of $3,287.75, drawn on the National Bank of Liberia, Monrovia, Liberia, whose bank notes are intended by the laws of that country to circulate as money, in violation of 18 U.S.C. Sec. 482. ³

Counts IV, V, and VI of the Indictment contained charges similar to that of Count III, pertaining to Liberian "bank notes" issued in various amount on May 17, May 15 and June 3, 1982, with intent to defraud Clark Country Chevrolet, City Bank and Trust Company, and Kathy Martin, all in violation of 18 U.S.C. Sec. 482.

Counts VII, VIII, and IX, charged Bolt with use of the mails on various dates in furtherance of a scheme to defraud the Bank of Oklahoma in violation of 18 U.S.C. Secs. 1341 and 2. ⁴ The scheme, as described in Count VII, was as follows:

"From on or about December, 1981, to on or about July, 1982, in the Northern District of Oklahoma, and elsewhere, JAMES WILLIAM BOLT, did devise and did intend to devise a scheme and artifice to defraud and to obtain money, credit and property by means of false and fraudulent pretenses, representations and promises, from the Bank of Oklahoma, Tulsa, Oklahoma, which would be induced to advance credit and pay money based on the fraudulent representations contained in a credit card application and counterfeit checks drawn on the National Bank of Liberia, Monrovia, Liberia, the said defendant well knowing at the time that the pretenses, representations and promises would be and were false when made. Said scheme and artifice to defraud, so devised and intended to be devised by the defendant was in substance as follows:

1. It was part of said scheme and artifice to defraud that on or about December 4, 1981, defendant ... would and did make application in a false name to the Bank of Oklahoma for a credit card, said application containing false and fraudulent information for the purpose of inducing the Bank of Oklahoma to advance credit to the defendant.

2. It was further a part of said scheme and artifice ... that defendant JAMES WILLIAM BOLT would and did periodically submit counterfeit checks drawn on the National Bank of Liberia, Monrovia, Liberia, to the Bank of Oklahoma for credit to defendant's credit card account for the purpose of inducing the Bank ... to extend further credit to the defendant."

The specific offense charged in Count VII was the mailing on December 4, 1981 of a letter containing an application for a VISA credit card account to the bank.

The offense charged in Count VIII was the mailing on May 12, 1982 of a letter containing a check for $1,000 drawn on an account entitled Saturation Systems at the National Bank of Liberia.

The offense charged in Count IX was the mailing on June 2, 1982, of a letter containing a check for $2,000 payable to VISA, and drawn on the same account at the National Bank of Liberia.

Count X concerned another scheme devised from April to May, 1982, whereby Bolt allegedly intended to defraud and obtain property by means of false and fraudulent pretenses from Frances Moore, a real estate agent in Arkansas, whereby Bolt sought to defer rent payments he owed, and to induce Ms. Moore to sell property to him based upon the fraudulent payment of a counterfeit check drawn on the National Bank of Liberia. This scheme was described as follows:

"1. It was part of said scheme and artifice to defraud that on or about April, 1982, defendant ... would and did negotiate with Frances Moore, acting in her capacity as real estate agent, for the purchase of property located at 147 White Oak Lane, Garfield, Arkansas."

"2. It was further part of said scheme and artifice to defraud that as payment for the property described above, the defendant ... would and did mail a fraudulent and counterfeit check drawn on the National Bank of Liberia, Monrovia, Liberia."

The specific offense charged in Count X was the mailing on May 18, 1982 of a letter and check in the sum of $275,000.00, payable to Frances Moore Real Estate and Tom Lambert and Mary Lambert, drawn on an account entitled Saturation Systems at the National Bank of Liberia, all in violation of 18 U.S.C. Secs. 1341 and 2.

Prior to trial Counts VII and IX were dismissed by the Government because proof of mailing was not available. Counts III, IV, V, and VI were also dismissed by the Government because it determined that the counts had been brought under the wrong statute since the Liberian checks referred to in those counts were not "bank notes" within the meaning of 18 U.S.C. Sec. 482. (Vol. IV, Record, pp. 10, 11).

Four counts remained for trial--Counts I and II, the charges of making false statements to an insured bank, and Count VIII (renumbered Count III) charging mail fraud in connection with the $1,000 check payable to VISA, mailed May 12, 1982, and Count X (renumbered Count IV), charging mail fraud in connection with the $275,000 check mailed to Frances Moore.

As his first proposition in this appeal, Bolt contends that the trial court erred in combining...