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United States v. Bolton

United States District Court, S.D. Mississippi, Eastern Division

December 16, 2016

UNITED STATES OF AMERICA
v.
CHARLES BOLTON and LINDA BOLTON

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Renewed Motion for New Trial [128] and Motion for Discovery [129] filed by Defendant Linda Bolton and the Joinders [140][141] filed by Defendant Charles Bolton. After reviewing the submissions of the parties, the record, and the applicable law, the Court finds that neither motion is well taken and that both should be denied.

         I. BACKGROUND

         On March 22, 2016, a federal grand jury indicted Defendants Charles and Linda Bolton on five counts of attempted tax evasion for the years 2009-2013 (Counts 1-5) and five counts of filing false tax returns for those same years (Counts 6-10). Trial began on September 13, 2016, and the government rested its case on September 15, 2016, after presenting several witnesses and exhibits. Defense called one witness and rested that same day. After deliberations, the jury returned a verdict of guilty for Charles Bolton on Counts 2-10 and for Linda Bolton on Counts 6-10. Both defendants were found not guilty as to Count 1. The jury was unable to reach a verdict as to Counts 2-5 with respect to Linda Bolton, and the Court declared a mistrial as to those counts. Sentencing is set for December 19, 2016.

         Defendant Linda Bolton (“Defendant”) filed her Motion for a Judgment of Acquittal or, In the Alternative, for a New Trial [119] on September 29, 2016, which was subsequently denied by this Court on November 4, 2016. In the current Renewed Motion for New Trial [128], Defendant claims that new information in the Presentence Report (“PSR”) regarding statements made by John Lee during an FBI interview entitles her to a new trial. Defendant further argues in her Motion for Discovery [129] that she is entitled to any report of this interview under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claiming that John Lee's statements in this interview contradicted what IRS Special Agent Bradley Luker (“Agent Luker”) testified to at trial. Specifically, Agent Luker testified that he had no evidence that the John Lee checks were for anything other than goods or services. (See Trial Transcript [136-2] at pp. 11-12, 16, 137.) Defendant contends that this conflicts with the portions of the interview disclosed in the PSR, during which Lee stated that Defendants never gave him receipts or invoices, but that he would pay whatever they told them, and that, though Lee did not recall loaning Defendants money, if they asked for money, he would give it to them.

         The Government submitted their Response [136] to these motions on December 12, 2016. Defendant Charles Bolton filed his Joinders [140][141] in Defendant's motions on December 15, 2016. Defendant's Reply [144], though not filed on the docket until December 15, 2016, due to the necessity of filing under seal, was e-mailed to the Court on December 14, 2016.

         II. DISCUSSION

         A. Renewed Motion New Trial [128][140]

         Federal Rule of Criminal Procedure 33 allows the Court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Though the Court has the discretion to grant or deny them, “motions for new trial are not favored, and are granted only with great caution.” United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir 1997) (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)). A new trial is a remedy courts rarely grant, and “it is warranted only where there would be a miscarriage of justice or where the evidence preponderates heavily against the verdict.” Id. (quoting United States v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996)) (internal quotations omitted). In order to obtain a new trial based on new evidence, the Fifth Circuit has stated that a defendant must satisfy the following five-part test:

(1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the failure to detect the evidence was not due to the defendant's lack of diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence if introduced at a new trial would probably produce an acquittal.

United States v. Piazza, 647 F.3d 559, 565 (5th Cir. 2011). A new trial “must be denied if the defendant fails to demonstrate any one factor.” Id. Despite the fact that Defendant has failed to even address these factors, it is abundantly clear that she has failed to meet any of them.

         First, Defendant was well aware that the FBI had interviewed John Lee, and second, a reasonable degree of diligence would have discovered that the FBI agent had produced a separate report from Agent Luker. In fact, Defendants' accountant Carl Nicholson was present during this interview as well and was seated near the defense table during the entire trial. Third, the FBI report of this interview would only serve to impeach Agent Luker's testimony, insofar as it could be said to contradict the testimony given at trial.[1] Fourth and Fifth, the Court is not convinced that this evidence is material or that its introduction at a new trial would probably result in an acquittal because, as the Court found when it ruled on Defendant's first motion for a new trial, even if the John Lee checks were excluded entirely, there are other checks in the record, such as checks from Manheim and the Mississippi National Guard, which were payments for goods and services and not properly reported as income. These checks are enough to support Defendant's convictions.

         Therefore, the Court does not find that Defendant has met her burden in showing she is entitled to a new trial based on newly discovered evidence, and the ...


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