Judge: 100-month sentence sound
Request to vacate punishment of Rogers man denied after hearing
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.