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United States v. Bolton

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

June 7, 2017




         This matter is before the Court on the Re-Urged Motion to Deem Attorney-Client Privilege and the Work Product Doctrine Waived (“Motion to Deem Waived”) [221] filed by Attorneys Joe Sam Owen, Ben Galloway, and their law firm, Owen, Galloway & Myers, PLLC, and the Motion for Protective Order [239] filed by Defendant Charles Bolton. After considering the submissions of the parties, the record, and the applicable law, the Court finds that the Motion to Deem Waived [221] is well taken and should be granted. In an abundance of caution, however, the Court finds that the Motion for Protective Order [239] should be granted in part and denied in part.

         I. BACKGROUND

         On March 22, 2016, a federal grand jury indicted Defendants Charles Bolton (“Charles”) and Linda Bolton (“Linda”) (collectively “Defendants”) 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). Attorney Joe Sam Owen (“Owen”) filed his initial appearance on behalf of Charles on March 28, 2016, and Ben Galloway (“Galloway”) filed his on April 29, 2016. It was discussed on the record that Owen was taking the lead in the defense.[1]

         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 on Counts 2-10 and for Linda 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 was originally set for December 19, 2016. On that date, Owen and counsel for the Government requested an in camera meeting with the Court and made a joint request for a continuance, citing Charles's willingness to cooperate with the Government in connection with ongoing investigations. Linda made no objection to this continuance. The sentencing was then continued to January 18, 2017. Owen and counsel for the Government contacted the Court again on January 13, 2017, requesting the Court to continue the sentencing once more to allow Charles more time to speak with agents of the Government. Sentencing was then continued to February 3, 2017, again with no objection from Linda. On January 24, 2017, because of internal scheduling conflicts of the Court, [2] sentencing was continued once again, with the consent of the parties, and set for March 17, 2017.

         On March 15, 2017, Owen, Galloway, and their firm, Owen, Galloway & Myers, PLLC, (collectively referred to as “Owen”) filed their Motion to Deem Attorney-Client Privilege Waived [151], stating that Charles had terminated their representation and was now attempting to allege Owen had conducted himself unethically during his representation of Charles. At the time, Charles was also represented by Robert Nathan Udashen (“Udashen”), who represented that he would not be present for the sentencing hearing as his representation was for the appeal phase only, and Samuel S. McHard (“McHard”), who served as local sponsoring counsel for the pro hac vice admission of Udashen and who also did not intend to attend the sentencing hearing. The Court learned through the filings connected with Owen's motion that Charles had apparently hired Alabama Attorney Willie J. Huntley (“Huntley”) some time during the prior week and that Huntley intended to represent Charles at the sentencing hearing. Despite these intentions, Huntley had not entered an appearance in the Court and had not filed a motion for pro hac vice admission, as required by an out-of-state lawyer not licensed to practice in Mississippi.[3]

         Despite Owen's motion, at no point prior to the sentencing hearing did Charles attempt to bring any allegations of attorney conflict to the Court's attention, nor did Huntley or any of his other attorneys ever file anything on his behalf regarding Owen's representation. In fact, if Owen had not filed his motion, the Court would have begun the sentencing hearing with no indication that there was any such allegation.[4] Furthermore, even after this motion was filed, the Court still had no indication as to what this alleged conflict pertained to, as Owen did not wish to reveal any confidential information with respect to Charles's allegations without first seeking the Court's approval.

         Because Owen brought the matter to the Court's attention, on March 17, 2017, prior to the sentencing hearing, the Court heard in camera arguments as to the Motion to Deem the Attorney-Client Privilege Waived [151].[5] During these arguments, the Government represented to the Court that Charles, despite his promises to cooperate, had given its agents no useful information despite the continuances of sentencing granted by the Court and that, as a result, it was ready to move forward with the sentencing with no further delay. Despite his previous termination of Owen's representation, Charles allowed Owen to represent him at the sentencing hearing as he had no other counsel present[6] and did not wish to utilize the Federal Public Defender.[7]

         After the in camera arguments, the sentencing hearing was held in open court. Over the objections of the Defendants, the Court adopted the Pre-Sentence Report's calculated sentencing guideline range of 27 to 33 months for both Charles and Linda. The Court then sentenced Linda to 30 months confinement per count with the Federal Bureau of Prisons (“BOP”), to be served concurrently. Charles was sentenced to 33 months confinement as to Counts 2 through 5, to run concurrently, and 12 months confinement for Counts 6 through 10, to run concurrently with each other but consecutively with the 33-month sentence under Counts 2 through 5, for a total of 45 months confinement in the custody of the BOP.[8] Fines and restitution were also levied against both Defendants. Judgment was entered in the case on March 28, 2017. (See Judgments [165][166].)

         Owen requested to withdraw from this case on March 22, 2017, but requested to reserve the right to respond to any filings related to their representation. The Court granted this motion on March 29, 2017. (See Order [167].) Also on March 29, the Court issued an Order [168] denying without prejudice Owen's previous Motion to Deem Attorney Client Privilege Waived [151], finding that such an action was not necessary at that point in time but stating that the issue could be re-urged should it become relevant.

         Multiple motions for new trial based on new evidence were filed with the Court. After resolving the procedural errors committed by Defendants, the Court issued a scheduling order for the briefing of these motions, allowing Owen and his firm to respond as many of the allegations contained in the motions dealt with his representation of Charles.

         Owen filed the current Motion to Deem Waived [221] on May 1, 2017, seeking the Court's acknowledgement that Charles's allegations of ineffective assistance of counsel waived the attorney-client privilege in order to more fully respond to the allegations. After briefing on the Motion to Deem Waived [221] concluded, Charles filed his Motion for Protective Order [239], arguing that, should the Court grant Owen's motion, it should limit the scope of the waiver. Having considered the submissions of all parties, the Court is now ready to rule.

         II. ...

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