Judge: 100-month sen­tence sound

Re­quest to va­cate pun­ish­ment of Rogers man de­nied af­ter hear­ing

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - DAVE HUGHES

FORT SMITH — A fed­eral mag­is­trate judge has rec­om­mended that a re­quest to va­cate the 100-month sen­tence of a Rogers man, who drew the sen­tence in 2014 for fal­si­fy­ing doc­u­ments to gain ac­cess to un­claimed as­sets from the state of Cal­i­for­nia, be de­nied.

The re­port and rec­om­men­da­tion by U.S. Mag­is­trate Judge Mark Ford is­sued Tues­day on the pe­ti­tion by James Bolt will go to U.S. District Judge Ti­mothy Brooks, who will make a fi­nal de­ci­sion on Bolt’s pe­ti­tion.

In con­clud­ing his 39-page re­port, Ford wrote that Bolt’s claims were not sup­ported by the ev­i­dence and that his

mo­tion to va­cate his sen­tence should be dis­missed with prej­u­dice, mean­ing it could not be re­filed.

Ford made his rec­om­men­da­tion af­ter a two-day hear­ing last month on Bolt’s ac­cu­sa­tion that he re­ceived in­ef­fec­tive coun­sel from his trial at­tor­ney, Her­bert South­ern of Fayet­teville, and from An­drew Miller of Rogers, who rep­re­sented Bolt in his sen­tenc­ing and ap­peal.

Dur­ing the hear­ing, Bolt tes­ti­fied that he was in­no­cent of the wire fraud, mail fraud and money laun­der­ing charges to which he pleaded guilty in Jan­uary 2014. He said, the govern­ment brought the case against him to get even for fail­ing to con­vict Bolt in a 2007 trial on fraud charges filed against him and oth­ers.

In the lat­est case, Bolt was charged in a 14-count in­dict­ment

in 2013 with wire fraud, mail fraud and money laun­der­ing. The charges ac­cused him of fal­si­fy­ing doc­u­ments to ob­tain un­claimed prop­erty that was do­nated to the states of Cal­i­for­nia and Ne­vada.

The charges in­volved ob­tain­ing the as­sets from Cal­i­for­nia, but the resti­tu­tion or­der at his sen­tenc­ing in June 2014 in­cluded money from a scheme to get prop­erty in Ne­vada as well.

In ad­di­tion to the 100-month prison sen­tence, Brooks fined Bolt $50,000 and or­dered him to pay $2.5 mil­lion resti­tu­tion.

In his pe­ti­tion, Bolt charged that South­ern failed to pre­pare his case for trial, that South­ern had a con­flict of in­ter­est be­cause of a re­la­tion­ship with the FBI agent in­ves­ti­gat­ing Bolt, and that South­ern forced him to ac­cept the plea agree­ment with the govern­ment.

Ford noted in his re­port that jail records from Ben­ton and Wash­ing­ton coun­ties

showed that South­ern met with Bolt about 30 times in pre­par­ing for the trial. South­ern had tes­ti­fied that Bolt wanted him to pur­sue as his de­fense his the­ory that the govern­ment was try­ing to get even af­ter los­ing the 2007 trial.

South­ern also tes­ti­fied that when he first agreed to rep­re­sent Bolt, he told Bolt about his re­la­tion­ship with the FBI agent, but Bolt did not ob­ject and even thought it could help his case.

Tes­ti­mony in the hear­ing was that Bolt was not forced into the plea agree­ment but wanted an agree­ment and that he con­trolled the plea ne­go­ti­a­tions with the govern­ment.

Bolt ac­cused Miller of fail­ing to ap­peal to the 8th U.S. Cir­cuit Court of Ap­peals the ac­cu­sa­tion raised dur­ing Bolt’s sen­tenc­ing hear­ing that the govern­ment was vi­o­lat­ing the plea agree­ment by ad­vo­cat­ing a length­ier sen­tence than what was in the plea agree­ment.

Miller tes­ti­fied that he did not bring the is­sue up on ap­peal be­cause he be­lieved it was not good strat­egy to bring up what he called weak is­sues be­fore the court.

As part of the plea agree­ment, Miller and the govern­ment had agreed to the rec­om­men­da­tion in the pre­sen­tence re­port of 57 to 71 months in prison. But Brooks be­lieved that be­cause of Bolt’s lengthy crim­i­nal record and the dan­ger he could re-of­fend, he sen­tenced Bolt to 100 months.

Miller said he ob­jected at the sen­tenc­ing hear­ing that the govern­ment was ad­vo­cat­ing a harsher sen­tence be­cause of the di­rec­tion and pas­sion of ar­gu­ments by the as­sis­tant U.S. at­tor­ney. Ford said in his re­port that he found no ev­i­dence the govern­ment breached the plea agree­ment.

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