United States v. Bolton

• Decision Date: 26 October 2018
• Docket Number: No. 17-60502,C/w 17-60576,17-60502
• Citation: 908 F.3d 75
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Charles BOLTON; Linda Bolton, Defendants - Appellants United States of America, Plaintiff - Appellee v. Charles Bolton, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

908 F.3d 75

UNITED STATES of America, Plaintiff - Appellee
v.
Charles BOLTON; Linda Bolton, Defendants - Appellants

United States of America, Plaintiff - Appellee
v.
Charles Bolton, Defendant - Appellant

No. 17-60502
C/w 17-60576

United States Court of Appeals, Fifth Circuit.

FILED October 26, 2018

Fred Patrick Harper, Jr., Esq., Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Sharan E. Lieberman, Jeffrey Ryan McLaren, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff - Appellee.

Ivan J. Bates, Bates & Garcia, L.L.C., Baltimore, MD, Willie J. Huntley, Jr., Mobile, AL, for Defendant - Appellant CHARLES BOLTON.

Jeffrey Michael Brandt, Robinson & Brandt, P.S.C., Covington, KY, for Defendant - Appellant LINDA BOLTON.

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit Judges.

CARL E. STEWART, Chief Judge:

IT IS ORDERED that our prior panel opinion, United States v. Bolton , No. 17-60502 c/w 17-60576, 2018 WL 5303661 (5th Cir. Oct. 23, 2018), is WITHDRAWN and the following opinion is SUBSTITUTED therefor.

A grand jury indicted Plaintiffs-Appellants Charles Bolton ("Charles") and his wife, Linda Bolton ("Linda"), on five counts of attempted tax evasion and five counts of filing false tax returns. The jury convicted Charles on four of the attempted tax evasion counts and all five counts of filing false tax returns. The jury acquitted both Boltons on one of the attempted tax evasion counts, failed to reach a verdict as to Linda on the remaining attempted tax evasion counts, and convicted Linda on all five counts of filing false tax returns.

The district court sentenced Charles to 45 months of imprisonment, imposed three years of supervised release with a special condition requiring payment of $145,849.78 in restitution and a $10,000 fine. The district court sentenced Linda to 30 months of imprisonment, with a one-year term of supervised release, a $6,000 fine, and restitution of $145,849.78, owed jointly and severally with Charles. Both Charles and Linda appeal their convictions and sentences. We affirm the Boltons’ convictions and sentences in all respects except that we modify the district court’s judgment to reflect that the restitution owed by the Boltons is not due until their terms of supervised release commence.

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I. Facts & Procedural History

In 1992, Charles became chief deputy sheriff of the Forrest County Sheriff’s Office ("FCSO") in Hattiesburg, Mississippi. He was terminated from the FCSO in 2016 after he was convicted in this case. As chief deputy, he oversaw the Forrest County Juvenile and Adult Detention Center. At that time, he and his wife Linda also owned and operated two businesses,¹ Hall Avenue Package Store and Sports 22 Café and Lounge.

In March 2014, the Federal Bureau of Investigation ("FBI") and the Mississippi State Auditor’s Office began an investigation into whether the Boltons and others were stealing food from the FCSO’s Detention Center.² In July 2015, the U.S. Attorney’s Office for the Southern District of Mississippi received approval to recuse itself from the investigation and prosecution of Charles, and the matter was re-assigned to the U.S. Attorney’s Office for the Eastern District of Louisiana. Around that time, the FBI referred several suspicious checks related to the Boltons’ businesses to Internal Revenue Service ("IRS") Special Agent Bradley Luker who began a criminal tax investigation to determine whether the Boltons were guilty of violating any tax laws. Agent Luker provided information about the criminal tax investigation to Assistant United States Attorney Fred Harper of the Eastern District of Louisiana who had been assigned to Charles’s case.

A federal grand jury returned a ten-count indictment in March 2016 charging the Boltons with attempted tax evasion and aiding and abetting in attempted tax evasion for the tax years 2009 through 2013, in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2 (Counts 1–5), as well as filing false tax returns and aiding and abetting in the filing of false tax returns for tax years 2009 through 2013, in violation of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2 (Counts 6–10). After the Boltons were indicted, attorney Joe Sam Owen ("Owen") enlisted as counsel of record on behalf of Charles. Linda was represented by several different attorneys before trial, and by attorney Robert McDuff at trial and sentencing.

Prior to trial, the government stated its intent to introduce business records, checks, check registers, and tax returns of an individual named John Lee ("Lee"), who, through his law practice, Lee P.A., was involved with the Boltons, as business or public records. The government also subpoenaed Lee to testify at trial, and Charles subpoenaed a large number of checks from Lee’s law practice as well as Lee’s casino gambling records.

Before trial, Lee hired attorney Rick Simmons who moved to quash a subpoena by the government to testify at trial on grounds that Lee would be invoking his Fifth Amendment privilege against self-incrimination. The district court denied the motion, but the parties stipulated at the outset of trial that Lee would not actually testify even if called.³ The parties also stipulated that records or summaries of records were admissible as business records,

908 F.3d 86

and the Boltons stipulated to the authenticity of their handwriting on various exhibits. The parties further stipulated that Lee had invoked his Fifth Amendment privilege, and the jury was instructed that Lee would not be called as a witness.

The Boltons’ three-day jury trial began in September 2016. At trial, the government presented evidence that the Boltons treated money received by their two businesses as "loans" rather than "income" when reporting their business income on their personal income tax returns, prepared by Renee Moore ("Moore") of Nicholson and Company, thus falsely reducing their tax liability. The deposits in question included checks from various entities and individuals, including Lee and Manheim Mississippi Auto Auction.

The jury ultimately convicted Charles on four counts of attempted tax evasion and all five counts of filing false tax returns. The jury acquitted each Bolton on one count of attempted tax evasion, failed to reach a verdict as to Linda on the remaining attempted tax evasion counts, and convicted Linda on all five counts of filing false tax returns.

The presentence reports ("PSRs") for Charles and Linda described an interview (referred to as an "FBI 302") of Lee by federal agents regarding checks he had given to Charles. Linda moved for a new trial based on an alleged discrepancy between the information in the FBI 302 and the testimony of Agent Luker. Linda also argued that the failure to disclose the substance of the interview violated the government’s discovery obligations and constituted a Brady violation. Charles joined the motion. The district court denied the new trial motion, finding no discrepancy between Agent Luker’s trial testimony and the information in the FBI 302.

Three days before sentencing, Charles’s attorney, Owen, advised the court that Charles had obtained new counsel and that Charles would be complaining about his (Owen’s) handling of the case. On the day of sentencing, Charles sought to be represented by new counsel, Willie J. Huntley—an out-of-state attorney who said he would need more time to review the case before being ready to proceed. The district court declined to grant a continuance and offered Charles the choice of being represented at sentencing by Owen or by an attorney from the Federal Public Defender’s Office. Ultimately, Charles was represented at sentencing by Owen, and Huntley was allowed to assist.

In sentencing Charles, the district court upwardly varied from the guidelines range of 27 to 33 months, imposing a 45-month term of imprisonment. The variance was based on the district court’s finding that he had stolen food inventory from the FCSO Detention Center and used the food at his Sports 22 restaurant and catering business. The district court also imposed three years of supervised release with a special condition requiring payment of $145,849.78 in restitution and a $10,000 fine. Charles reported to federal prison on May 3, 2017. He then moved the district court for release pending appeal, which the district court denied.⁴

After sentencing, Owen sought and received permission to withdraw as counsel of record for Charles. Three days after entry of the judgment, Charles filed a notice of appeal, and also filed three motions seeking a new trial or vacatur of his conviction and sentence. Among numerous other arguments, Charles argued that his representation by Owen was paid for by Lee and was therefore tainted by a conflict of interest. This court remanded the case

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pursuant to Federal Rule of Appellate Procedure 12.1(b) so that the district court could rule on the motions, expressly declining to retain jurisdiction.

Following remand, the district court issued an order reviving the pending motions, setting briefing deadlines, and ordering former counsel Owen and McDuff to respond to various allegations of ineffective assistance of...