United States v. Charles Bolton
908 F.3d 75
| 5th Cir. | 2018Background
- Charles (FCSO chief deputy) and Linda Bolton owned two sole‑proprietorship businesses and were indicted on five counts each of attempted tax evasion (26 U.S.C. § 7201) and filing false tax returns (26 U.S.C. § 7206(1)) for tax years 2009–2013; Charles convicted on 4 evasion counts and 5 false‑return counts; Linda convicted on 5 false‑return counts.
- Investigation began from suspected theft of jail food and suspicious checks to the Boltons’ businesses; IRS special agent Luker conducted tax investigation; John Lee (a lawyer) was involved but invoked his Fifth Amendment privilege and did not testify.
- The government introduced business records, checks, and tax returns (stipulated as business records); defense elicited some testimony from Agent Luker about Lee’s out‑of‑court statements during cross‑examination.
- District court sentenced Charles to 45 months (upward variance), 3 years supervised release, $10,000 fine, and joint restitution of $145,849.78; Linda received 30 months, 1 year supervised release, $6,000 fine, same restitution jointly and severally.
- Post‑trial issues included Brady, Confrontation Clause, sufficiency of indictment and evidence, prosecutorial misconduct, jury instructions, sentencing (loss amount, restitution timing), conflict/ineffective assistance, and whether Charles waived attorney‑client privilege by alleging ineffective assistance and public commentary.
- Fifth Circuit affirmed convictions and sentences in all respects except modified the judgment so restitution is not due until supervised release commences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment sufficiency | Bolton: indictment failed to allege elements with particularity | Govt: indictment sufficiently alleged elements and acts for §7201 and §7206(1) | No plain error; indictment sufficient |
| Sufficiency of evidence | Boltons: evidence insufficient to prove willfulness, deficiency, or false returns | Govt: cashing checks, marking income as loans, Agent Luker’s tracing and charts established deficiency and willfulness | Convictions supported; evidence sufficient |
| Brady disclosure | Boltons: DOJ memo, FBI 302 of Lee, subpoena to Nicholson, Lee plea were suppressed Brady material | Govt: materials immaterial or post‑trial; FBI 302 did not materially impeach Luker; subpoena related to conflict, not exculpatory | Brady claims fail |
| Confrontation Clause | Boltons: Luker’s testimony about Lee’s out‑of‑court statements violated Crawford | Govt: defense counsel invited the admission during cross‑examination | Error invited by defense; no manifest injustice; no reversal |
| Prosecutorial misconduct | Charles: improper vouching, false statements, name‑calling | Govt: remarks were not outcome‑determinative and jury was instructed statements are not evidence | No reversible misconduct; claims fail |
| Sentencing loss & variance | Boltons: court erred in computing loss (included Lee checks and stolen food) and abused discretion in upward variance | Govt: loss estimate supported; food theft was relevant conduct; variance justified under §3553(a) | Loss amount and variance upheld; no clear error/plain error |
| Restitution timing | Charles: restitution ordered immediately exceeded court's authority | Govt: restitution may be condition of supervised release but conceded timing issue | Modify judgment: restitution not due until supervised release begins |
| Conflict/ineffective assistance | Charles: counsel had actual conflict (payments from Lee) and counsel ineffective; denied Garcia hearing and counsel of choice at sentencing | Govt/district court: payment facts known to Charles; no actual conflict; procedures and continuance rulings proper | No actual conflict or Strickland relief; denial of new trial and Garcia hearing proper |
| Attorney‑client privilege waiver | Charles: privilege not waived; unsealing counsel’s responses improper; district court lacked jurisdiction | Govt: Charles put communications at issue and publicly attacked counsel; district court retained jurisdiction over related matters | Privilege waived by putting communications at issue and public disclosures; unsealing permissible; jurisdiction argument rejected |
Key Cases Cited
- United States v. Robinson, 367 F.3d 278 (5th Cir. 2004) (plain‑error review for preserved indictment objections)
- United States v. Fairley, 880 F.3d 198 (5th Cir. 2018) (standards for indictment sufficiency)
- United States v. Nolen, 472 F.3d 362 (5th Cir. 2006) (elements of §7201 tax evasion)
- United States v. Miller, 588 F.3d 897 (5th Cir. 2009) (affirmative acts satisfying evasion element)
- United States v. Scott, 892 F.3d 791 (5th Cir. 2018) (standard for sufficiency review; deference to jury)
- United States v. Swenson, 894 F.3d 677 (5th Cir. 2018) (Brady framework and materiality)
- United States v. Meza, 701 F.3d 411 (5th Cir. 2012) (two‑step prosecutorial misconduct analysis)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard)
- United States v. Watts, 519 U.S. 148 (1997) (court may consider acquitted conduct at sentencing if proved by preponderance)
- United States v. Westbrooks, 858 F.3d 317 (5th Cir. 2017) (restitution may be conditioned on supervised release; timing limits)