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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 Motion to Certify Interlocutory Appeal (“Motion for Appeal”) [227] filed by Defendants Charles and Linda Bolton. After considering the submissions of the parties, the record, and the applicable law, the Court finds that this motion is not well taken and should be denied.

         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). Trial was initially set for May 23, 2016. Defendants filed a joint Unopposed Motion to Continue [17] on April 25, 2016. The Court granted this motion on April 29, 2016, and the trial date was then set for July 18, 2016. Due to courtroom unavailability[1] and after conferring with the parties to ascertain any objections, the Court sua sponte continued the case until August 22, 2016. Because of issues with Linda's attorneys, the trial was continued once again to September 12, 2016.

         Trial ultimately began on September 13, 2016, due to a late filed motion to quash trial subpoena filed by a witness in the case. Due to the high local interest in the case, the Court took the precaution of calling for a district-wide venire instead of a division-wide one, in order to ensure the Defendants would be tried before an unbiased panel. 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.

         On March 17, 2017, sentencing was held in open court. Over the objections of the Defendants, the Court adopted the Pre-Sentence Reports' 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.[2] Fines and restitution were also levied against both Defendants. Judgment was entered in the case on March 28, 2017. (See Judgments [165][166].) Defendants were allowed to self-surrender to the custody of the BOP as notified by the U.S. Marshal, but no later than 60 days from the date of sentencing.

         On March 31, 2017, Charles filed a Notice of Appeal [172]. Subsequently, on April 3, 2017, Charles requested that Notice of Appeal be dismissed without prejudice, as it was filed in error. The Court granted this request that same day. (See Order [174].)

         On April 11, 2017, Charles filed his Motion for New Trial Due to Defense Counsel for Defendant Charles Bolton Commenced the Representation with an Actual Conflict [175] and his Motion to Vacate Conviction and Sentence and in the Alternative, for New Trial Under Federal Rule of Criminal Procedure Rule 33 and Request for Garcia Hearing[3] [177]. That same day, Charles filed a second Notice of Appeal [180], before he and Linda both filed additional Motions for New Trial [178][181].[4] Linda then filed a Notice of Appeal [182].

         The Court issued an Order [183] on April 12, 2017, terminating all pending Motions for New Trial [175][177][178][181], finding that it did not have jurisdiction over the matters they involved. See United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir. 1979) superceded by statute on other grounds as stated in United States v. Martinez, 763 F.2d 1297, 1308 (11th Cir. 1985) (citations omitted); see also Fed. R. Crim. 33(b)(1) (“If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.”)

         On April 21, 2017, Defendants filed their Motions to Seal [189][190], [5] asking for leave to file certain confidential medical information under seal for purposes of forthcoming motions to stay the Defendants' self-report dates. The Court entered its Order [191] granting these motions on April 24, 2017.[6] Defendants' Motions to Stay [198][199] were subsequently filed on April 26, 2017.

         The Court learned on April 26, 2017, that Defendants had filed motions for bail pending appeal in the Fifth Circuit.[7] These motions were procedurally incorrect, as motions for bail pending appeal must first be filed with the district court before they are brought to the appellate court, and no such motions were filed with this Court. See Fed. R. App. P. 9(b); see also Jago v. U.S. Dist. Court, N. Dist. of Ohio, 570 F.2d 618, 623 (6th Cir. 1978) (“Release pending an appeal must be first sought in the district court even after an appeal has been noted from the judgment of conviction.”). Because of the confusing motion practice of Defendants and because it was uncertain how to proceed on the Motions to Stay [198][199] given the motions for bail, the Court consulted with staff attorneys at the Fifth Circuit.

         It was ultimately decided, at the suggestion of the Fifth Circuit staff attorneys, that the best course of action was for the Court to request a remand pursuant to Federal Rule of Appellate Procedure 12.1(b), [8] in order to streamline the proceedings and to allow for factual findings to be made on the issues in all of the motions filed by Defendants. The Fifth Circuit panel agreed and issued a per curiam order remanding the case on April 27, 2017, divesting itself of jurisdiction and denying all pending motions before it as moot. (See Order of USCA [205].) The Court issued an Order [206] on April 27, 2017, reviving the Motions for New Trial [175][177][178][181] and setting briefing deadlines. Because of the remand, no appeal is currently pending in this case.

         The Court denied the Motions to Stay [198][199] on May 1, 2017. That same day, Defendants filed their Motions for Bond [214][218] and asked for expedited consideration of these motions, which the Court denied. Linda surrendered to the custody of the BOP on May 2, 2017, and Charles surrendered on May 3, 2017.

         The Motion for Appeal [227] was filed on May 3, 2017, the day after Linda surrendered and the day Charles was set to surrender. In it, Defendants request an interlocutory appeal of the Court's Order [217] denying their Motions to Stay [198][199] and the Order [220] denying their requests ...

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