United States v. Charles Bolton

Case: 17-60502 Document: 00514699814 Page: 1 Date Filed: 10/26/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-60502 October 26, 2018

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

CHARLES BOLTON; LINDA BOLTON,

Defendants - Appellants

Consolidated with 17-60576

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CHARLES BOLTON,

Defendant - Appellant

Appeals from the United States District Court

Southern District of Mississippi

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit

Judges.

CARL E. STEWART, Chief Judge:

IT IS ORDERED that our prior panel opinion, United States v. Bolton,

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No. 17-60502

c/w No. 17-60576

No. 17-60502 c/w 17-60576, 2018 WL 5303661 (5th Cir. Oct. 23, 2018), is

WITHDRAWN and the following opinion is SUBSTITUTED therefor.

A grand jury indicted Plaintiffs-Appellants Charles Bolton (“Charles”)

and his wife, Linda Bolton (“Linda”), on five counts of attempted tax evasion

and five counts of filing false tax returns. The jury convicted Charles on four

of the attempted tax evasion counts and all five counts of filing false tax

returns. The jury acquitted both Boltons on one of the attempted tax evasion

counts, failed to reach a verdict as to Linda on the remaining attempted tax

evasion counts, and convicted Linda on all five counts of filing false tax returns.

The district court sentenced Charles to 45 months of imprisonment,

imposed three years of supervised release with a special condition requiring

payment of $145,849.78 in restitution and a $10,000 fine. The district court

sentenced Linda to 30 months of imprisonment, with a one-year term of

supervised release, a $6,000 fine, and restitution of $145,849.78, owed jointly

and severally with Charles. Both Charles and Linda appeal their convictions

and sentences. We affirm the Boltons’ convictions and sentences in all respects

except that we modify the district court’s judgment to reflect that the

restitution owed by the Boltons is not due until their terms of supervised

release commence.

I. Facts & Procedural History

In 1992, Charles became chief deputy sheriff of the Forrest County

Sheriff’s Office (“FCSO”) in Hattiesburg, Mississippi. He was terminated from

the FCSO in 2016 after he was convicted in this case. As chief deputy, he

oversaw the Forrest County Juvenile and Adult Detention Center. At that

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time, he and his wife Linda also owned and operated two businesses, 1 Hall

Avenue Package Store and Sports 22 Café and Lounge.

In March 2014, the Federal Bureau of Investigation (“FBI”) and the

Mississippi State Auditor’s Office began an investigation into whether the

Boltons and others were stealing food from the FCSO’s Detention Center. 2 In

July 2015, the U.S. Attorney’s Office for the Southern District of Mississippi

received approval to recuse itself from the investigation and prosecution of

Charles, and the matter was re-assigned to the U.S. Attorney’s Office for the

Eastern District of Louisiana. Around that time, the FBI referred several

suspicious checks related to the Boltons’ businesses to Internal Revenue

Service (“IRS”) Special Agent Bradley Luker who began a criminal tax

investigation to determine whether the Boltons were guilty of violating any tax

laws. Agent Luker provided information about the criminal tax investigation

to Assistant United States Attorney Fred Harper of the Eastern District of

Louisiana who had been assigned to Charles’s case.

A federal grand jury returned a ten-count indictment in March 2016

charging the Boltons with attempted tax evasion and aiding and abetting in

attempted tax evasion for the tax years 2009 through 2013, in violation of 26

U.S.C. § 7201 and 18 U.S.C. § 2 (Counts 1–5), as well as filing false tax returns

and aiding and abetting in the filing of false tax returns for tax years 2009

through 2013, in violation of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2 (Counts 6–

1 The Boltons’ businesses were Schedule C businesses which are considered sole

proprietorships. Taxes for Schedule C businesses are reported on the owner’s personal

income tax return.

2The 2014 food theft investigation did not result in charges against the Boltons in the

underlying proceedings but the district court determined the incident to be relevant conduct

for purposes of sentencing and its calculation of the loss and restitution amounts. See

U.S.S.G. § 1B1.3.

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10). After the Boltons were indicted, attorney Joe Sam Owen (“Owen”) enlisted

as counsel of record on behalf of Charles. Linda was represented by several

different attorneys before trial, and by attorney Robert McDuff at trial and

sentencing.

Prior to trial, the government stated its intent to introduce business

records, checks, check registers, and tax returns of an individual named John

Lee (“Lee”), who, through his law practice, Lee P.A., was involved with the

Boltons, as business or public records. The government also subpoenaed Lee

to testify at trial, and Charles subpoenaed a large number of checks from Lee’s

law practice as well as Lee’s casino gambling records.

Before trial, Lee hired attorney Rick Simmons who moved to quash a

subpoena by the government to testify at trial on grounds that Lee would be

invoking his Fifth Amendment privilege against self-incrimination. The

district court denied the motion, but the parties stipulated at the outset of trial

that Lee would not actually testify even if called. 3 The parties also stipulated

that records or summaries of records were admissible as business records, and

the Boltons stipulated to the authenticity of their handwriting on various

exhibits. The parties further stipulated that Lee had invoked his Fifth

Amendment privilege, and the jury was instructed that Lee would not be called

as a witness.

The Boltons’ three-day jury trial began in September 2016. At trial, the

government presented evidence that the Boltons treated money received by

their two businesses as “loans” rather than “income” when reporting their

business income on their personal income tax returns, prepared by Renee

3 The district court ruled that the Boltons could comment at trial on Lee’s invocation

of his Fifth Amendment privilege.

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Moore (“Moore”) of Nicholson and Company, thus falsely reducing their tax

liability. The deposits in question included checks from various entities and

individuals, including Lee and Manheim Mississippi Auto Auction.

The jury ultimately convicted Charles on four counts of attempted tax

evasion and all five counts of filing false tax returns. The jury acquitted each

Bolton on one count of attempted tax evasion, failed to reach a verdict as to

Linda on the remaining attempted tax evasion counts, and convicted Linda on

all five counts of filing false tax returns.

The presentence reports (“PSRs”) for Charles and Linda described an

interview (referred to as an “FBI 302”) of Lee by federal agents regarding

checks he had given to Charles. Linda moved for a new trial based on an

alleged discrepancy between the information in the FBI 302 and the testimony

of Agent Luker. Linda also argued that the failure to disclose the substance of

the interview violated the government’s discovery obligations and constituted

a Brady violation. Charles joined the motion. The district court denied the

new trial motion, finding no discrepancy between Agent Luker’s trial

testimony and the information in the FBI 302.

Three days before sentencing, Charles’s attorney, Owen, advised the

court that Charles had obtained new counsel and that Charles would be

complaining about his (Owen’s) handling of the case. On the day of sentencing,

Charles sought to be represented by new counsel, Willie J. Huntley—an out-

of-state attorney who said he would need more time to review the case before

being ready to proceed. The district court declined to grant a continuance and

offered Charles the choice of being represented at sentencing by Owen or by an

attorney from the Federal Public Defender’s Office. Ultimately, Charles was

represented at sentencing by Owen, and Huntley was allowed to assist.

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In sentencing Charles, the district court upwardly varied from the

guidelines range of 27 to 33 months, imposing a 45-month term of

imprisonment. The variance was based on the district court’s finding that he

had stolen food inventory from the FCSO Detention Center and used the food

at his Sports 22 restaurant and catering business. The district court also

imposed three years of supervised release with a special condition requiring

payment of $145,849.78 in restitution and a $10,000 fine. Charles reported to

federal prison on May 3, 2017. He then moved the district court for release

pending appeal, which the district court denied. 4

After sentencing, Owen sought and received permission to withdraw as

counsel of record for Charles. Three days after entry of the judgment, Charles

filed a notice of appeal, and also filed three motions seeking a new trial or

vacatur of his conviction and sentence. Among numerous other arguments,

Charles argued that his representation by Owen was paid for by Lee and was

therefore tainted by a conflict of interest. This court remanded the case

pursuant to Federal Rule of Appellate Procedure 12.1(b) so that the district

court could rule on the motions, expressly declining to retain jurisdiction.

Following remand, the district court issued an order reviving the

pending motions, setting briefing deadlines, and ordering former counsel Owen

and McDuff to respond to various allegations of ineffective assistance of

counsel. The government filed a consolidated response to all of the Boltons’

pending motions, as did Owen and McDuff. On July 3, 2017, the district court

denied the new trial motions. Charles noticed his appeal on July 12 (entered

July 13), citing the district court’s July 3 new trial order. Linda noticed her

appeal on July 13, also citing the district court’s July 3 new trial order.

4 This court denied Charles’s motion for release pending appeal on August 7, 2017.

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Owen asked the district court to deem the attorney-client privilege and

the work-product doctrine waived so that he could respond to the Boltons’

allegations of conflict and ineffective assistance of counsel. Charles objected

and Owen noted that, in multiple motions, he and his firm were accused of

harboring a conflict-of-interest and a litany of instances of ineffective

assistance. The government supported the waiver. Charles then sought a

protective order, which Owen opposed, precluding the availability of the

documents to the prosecution, law enforcement, or the public. Owen identified

the claims against him as involving an alleged conflict about Lee, trial

preparation and use of an expert, jury selection, trial strategy, exhibits,

witnesses, Linda’s decision not to testify, Charles’s decision not to testify,

Charles’s conviction, the PSR and objections, the in-camera sentencing

conference, the sentencing hearing, and the post-sentencing submissions

under seal.

The district court acknowledged that Charles had waived his attorney-

client privilege and work-product doctrine but determined that the documents

should be filed under seal and not served on the government. The government

moved for reconsideration on grounds that it would need the materials to

respond to any appeal filed by Charles and to defend against allegations of

ineffective assistance of counsel under 28 U.S.C. § 2255. The district court

granted the government’s motion and placed Owen’s response to Charles’s new

trial motions on the public docket, finding that Charles “did not point to a

single piece of formerly privileged evidence which would prejudice him either

on appeal or in the event of a new trial.” Charles noticed his appeal of that

order (appeal No. 17-60576). Charles’s second appeal, No. 17-60576, was

consolidated with the existing appeal of the Boltons’ convictions and sentences,

No. 17-60502.

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II. Discussion

The Boltons each raise a host of arguments on appeal including but not

limited to: (1) whether the indictment was sufficient; (2) whether the evidence

was sufficient to support the Boltons’ convictions; (3) whether one or more

Brady violations took place in the proceedings below; (4) whether the Boltons’

Confrontation Clause rights were violated; (5) whether the government

engaged in prosecutorial misconduct during trial; (6) whether the district court

erred in its issuance of jury instructions; (7) whether the district court erred in

imposing the Boltons’ sentences; (8) whether Charles was denied his right to

conflict-free choice of counsel or received ineffective assistance of counsel; and

(9) whether the district court erred in holding that Charles waived his

attorney-client privilege. We address each issue in turn.

Indictment

Charles argues that his indictment was insufficient. Because Charles

failed to preserve his objection to the alleged defective indictment, plain error

review applies. United States v. Robinson, 367 F.3d 278, 285 (5th Cir. 2004).

“Plain error exists if (1) there is an error, (2) the error is plain, . . . (3) the error

affect[s] substantial rights and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United States v. Garcia-

Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam) (internal quotation

marks and citation omitted).

“An indictment is legally sufficient if (1) ‘each count contains the

essential elements of the offense charged,’ (2) ‘the elements are described with

particularity,’ and (3) ‘the charge is specific enough to protect the defendant

against a subsequent prosecution for the same offense.’” United States v.

Fairley, 880 F.3d 198, 206 (5th Cir. 2018) (“‘[T]he validity of an indictment is

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governed by practical, not technical considerations,’ and ‘[t]he basic purpose

behind an indictment is to inform a defendant of the charge against him[.]’”).

The government charged five counts of attempted tax evasion and aiding

and abetting in attempted tax evasion for the tax years 2009 through 2013 in

violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2 (Counts 1-5), and five counts of

filing false tax returns and aiding and abetting in the filing of false tax returns

for the tax years 2009 through 2013 in violation of 26 U.S.C. § 7206(1) and 18

U.S.C. § 2 (Counts 6-10).

A. Tax Evasion

“The elements of [§7201 tax evasion are]: (1) willfulness, (2) existence of

a tax deficiency; and (3) an affirmative act constituting an evasion or

attempted evasion of the tax.” United States v. Nolen, 472 F.3d 362, 377 (5th

Cir. 2006). The indictment charged that, for the tax evasion counts, the

Boltons “did willfully attempt to evade and defeat a large part of the income

tax due and owing by defendants to the United States of America by, among

other things, preparing and causing to be prepared, and by signing and causing

to be signed, a false and fraudulent joint U.S. Individual Income Tax Return,

Form 1040, on behalf of defendants, which was filed with the Internal Revenue

Service.” The indictment further alleged that the Boltons attempted to evade

and evaded the assessment of their income taxes by cashing tens of thousands

of dollars in checks purportedly issued in payment for liquor, wine, and

catering services to prevent those payments from being recorded on their

business bank statements; providing deceptive records to their tax return

preparer; and making false statements to their tax return preparer that some

payments for goods and services were loans. When compared to the elements

required to prove tax evasion under § 7201, the indictment was sufficient in

that it alleged with specificity the affirmative acts willfully taken by the

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Boltons to evade the tax they knew they owed, provided the Boltons notice of

the alleged crime, and protected them from subsequent prosecution for the

same crime. Fairley, 880 F.3d at 206.

B. Filing False Tax Returns

“A person commits the felony of filing a false tax return in violation of 26

U.S.C. § 7206(1) when he ‘willfully makes and subscribes any return,

statement, or other document, which contains or is verified by a written

declaration that it is made under the penalties of perjury, and which he does

not believe to be true and correct as to every material matter.’” United States

v. Bishop, 264 F.3d 535, 546 (5th Cir. 2001) (quoting 26 U.S.C. § 7206(1)).

The indictment alleged that the Boltons “did willfully make and

subscribe to a joint United States Income Tax Return, Form 1040, which was

verified by a written declaration that it was made under penalty of perjury and

was filed with the Internal Revenue Service [which] defendants herein did not

believe to be true and correct as to every material matter for each calendar tax

year noted [2009–2013]” in that they knew and believed they had failed to

report a substantial amount of income on Line 22 of the Form.

Viewing the language of the indictment against the elements required to

prove the crime of filing a false tax return, the indictment was sufficient in

that it alleged with specificity the Boltons’ falsification of the tax returns,

provided the Boltons notice of the alleged crime, and protected the Boltons from

subsequent prosecution for the same crime. Fairley, 880 F.3d at 206.

Accordingly, Charles failed to show plain error with respect to the sufficiency

of the indictments for tax evasion and filing false tax returns. Garcia-Carrillo,

749 F.3d at 378. In light of this holding, we do not reach Charles’s alternative

arguments as to the alleged insufficiency or defectiveness of the indictment.

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Sufficiency of the Evidence

Both Charles and Linda argue that the evidence was insufficient to

support the jury’s verdicts of guilt against them as to the crimes of tax evasion

(Charles) and filing false tax returns (Charles and Linda). The Boltons

preserved their challenges to the sufficiency of the evidence by moving for and

renewing their motions for a judgment of acquittal. Accordingly, “[w]e review

preserved challenges to the sufficiency of the evidence de novo, but we are

‘highly deferential to the verdict.’” United States v. Scott, 892 F.3d 791, 796

(5th Cir. 2018).

“When reviewing the sufficiency of the evidence, we view all evidence,

whether circumstantial or direct, in the light most favorable to the

government, with all reasonable inferences and credibility choices to be made

in support of the jury’s verdict.” Id. It is the province of the jury to “weigh any

conflicting evidence and to evaluate the credibility of witnesses.” Id. at 796–

97. We consider the evidence “sufficient to support a conviction if ‘any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Id. at 797. Our question is whether “the jury’s verdict was

reasonable, not whether we believe it to be correct.” Id.

The jury convicted Charles on four of the five counts of tax evasion.

Linda was not convicted of tax evasion. 26 U.S.C. § 7201 provides that “[a]ny

person who willfully attempts in any manner to evade or defeat any tax

imposed by this title or the payment thereof shall . . . be guilty of a felony[.]”

“The elements of [§ 7201 tax evasion are]: (1) willfulness, (2) existence of a tax

deficiency; and (3) an affirmative act constituting an evasion or attempted

evasion of the tax.” Nolen, 472 F.3d at 377. “Affirmative acts that satisfy the

[third] element may include keeping double sets of books, concealment of

assets, or ‘any conduct, the likely effect of which would be to mislead or to

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conceal.’” United States v. Miller, 588 F.3d 897, 907 (5th Cir. 2009). To prove

willfulness “the government must show that: (1) the law imposed a duty on the

defendant; (2) the defendant knew of that duty; and (3) the defendant

voluntarily and intentionally violated that duty.” Id. “Such evidence is

ordinarily circumstantial, since direct proof is often unavailable.” United

States v. Kim, 884 F.2d 189, 192 (5th Cir. 1989). To prove a tax deficiency the

government must establish that the taxpayer had unreported taxable income.

United States v. Conaway, 11 F.3d 40, 43 (5th Cir. 1993).

The jury convicted both Charles and Linda of five counts of filing false

tax returns, or aiding and abetting in filing false tax returns, for the years of

2009 through 2013. A person commits the felony of filing a false tax return in

violation of 26 U.S.C. § 7206(1) when he “[w]illfully makes and subscribes any

return, statement, or other document, which contains or is verified by a written

declaration that it is made under the penalties of perjury, and which he does

not believe to be true and correct as to every material matter[.]”

At the Boltons’ trial, the government presented sufficient evidence that

Charles evaded taxes for the years 2010 through 2013 and that the Boltons

filed false tax returns in which they consistently underreported their income

from 2009 through 2013. The government’s evidence included numerous

instances when the Boltons (1) cashed a significant number of checks before

they were recorded in the Boltons’ financial books, and (2) designated

significant amounts of income as non-taxable loans. Agent Luker testified at

trial that he had traced the income derived from the cashed checks and the

checks marked as loans in the Boltons’ records and concluded that they had a

tax deficiency resulting from underreporting their income from their two

businesses. Agent Luker used a multitude of specific examples of the checks

marked as loans and the checks that were cashed before they “hit the books”

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to illuminate the discrepancy between the Boltons’ actual income and their

reported income. The government also presented a number of charts at trial

which featured year-by-year summary computations of the Boltons’ “reported”

versus their “corrected” taxable income resulting from cashed checks and

checks marked as loans.

Consequently, given this court’s high level of deference to the jury’s

verdict and the mountain of evidence presented at trial in support of the jury’s

verdict, specifically proving the elements of tax evasion as to Charles and filing

false returns as to both Charles and Linda, we hold that the evidence was

sufficient to support the Boltons’ convictions. Scott, 892 F.3d at 796–97. In

light of this holding, we do not reach either Charles’s or Linda’s alternative

arguments as to the alleged insufficiency of the evidence.

Alleged Brady Violations

The Boltons contend that the Brady material suppressed by the

government includes: (1) a Department of Justice memorandum dated July 29,

2015, (2) an FBI 302 interview report documenting Lee’s statements to law

enforcement that allegedly contradict the trial testimony of Agent Luker, (3) a

subpoena issued by the government to Carl Nicholson (“Nicholson”), and (4)

Lee’s plea agreement. “We review a district court’s determination on a Brady

claim de novo, though we defer to factual findings underlying the district

court’s decision.” United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 2018)

(citing United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017)).

Under Brady, “the government violates a defendant’s due process rights

if it withholds evidence that is favorable to the accused and material to the

defendant’s guilt or punishment.” Swenson, 894 F.3d at 683 (citing Brady v.

Maryland, 373 U.S. 83, 87 (1963)). The rule is applied regardless “of the good

faith or bad faith of the prosecution . . . [and] extends to impeachment evidence

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as well as exculpatory evidence.” Id. (citing Youngblood v. West Virginia, 547

U.S. 867, 869 (2006); Brady, 373 U.S. at 87). For a defendant to prevail on a

Brady claim, he “must show: (1) the evidence at issue was favorable to the

accused, either because it was exculpatory or impeaching; (2) the evidence was

suppressed by the prosecution; and (3) the evidence was material.” Id. The

usual remedy for a Brady violation is a new trial. Swenson, 894 F.3d at 684.

The Boltons fail to make a successful argument on any of their purported

Brady claims. With respect to Charles’s argument regarding the DOJ

memorandum dated July 29, 2015, that memo simply addressed conflicts

within the US Attorney’s Office, Mississippi division, and authorized transfer

to the US Attorney’s Office, Louisiana division. This subject matter has no

bearing on Agent Luker’s status as an IRS agent within the Department of

Treasury. Moreover, the recusal information of the Mississippi division of the

US Attorney’s Office is immaterial to Charles’s ability to “prepare a proper

defense against the indictment” for his own crimes of tax evasion and filing

false tax returns. Accordingly, the memorandum does not qualify as Brady

material. Swenson, 894 F.3d at 683.

Both Charles and Linda argue that the FBI 302 interview report, which

documents Lee’s statements to law enforcement that allegedly contradict

Agent Luker’s trial testimony, was improperly suppressed Brady material.

They claim that they would have used Lee’s statements in the interview that

he could not remember what each and every check he wrote to the Boltons’

businesses was for to contradict Agent Luker’s testimony that Lee told him

that the checks were written for food and liquor. As the district court properly

observed, Lee’s statements did not go to the truth of Agent Luker’s testimony

or to his own credibility because they were intended to highlight the suspicious

nature of all the money going from Lee’s firm to the Boltons’ restaurant under

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the auspices of purchasing “business supplies”; they were not solicited to

disprove Agent Luker’s testimony that Lee had told him that the checks were

written for food and liquor. United States v. St. Junius, 739 F.3d 193, 202 (5th

Cir. 2013) (“Under Federal Rule of Evidence 801(c), hearsay is a statement,

other than one made by the declarant while testifying at trial or a hearing,

offered in evidence to prove the truth of the matter asserted . . . The rule

against hearsay does not apply when an out-of-court statement is offered for

some purpose other than to prove the truth of the matter asserted.”).

Moreover, Lee’s statement to Agent Luker that the checks were written for

food and liquor does not contradict or undermine his statement in the FBI 302

interview that he could not remember what each individual check was for when

he was shown a spreadsheet of payments at a later date. It is certainly

conceivable that Lee stood by his story that all of the checks were written either

for food or liquor without claiming to remember what each specific check was

written for. Accordingly, the FBI 302 interview report does not qualify as

Brady material. Swenson, 894 F.3d at 683.

Charles argues that the subpoena issued by the government to Nicholson

was improperly suppressed Brady material because it “addressed the nature

of certain checks that were written from John Lee to Joe Sam Owen and

provided written acknowledgement of those checks.” As the government

observes, however, Charles’s argument on this issue goes to the purported

conflict of interest that he believed his attorney had—not to his own defense of

the charges against him for tax evasion and filing false tax returns.

Accordingly, the subpoena was immaterial and neither exculpatory nor

impeaching. Thus, it did not qualify as Brady material. Swenson, 894 F.3d at

683.

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Finally, Charles fails to brief his argument that Lee’s plea agreement

was improperly suppressed Brady material and thus has waived the issue. See

Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)

(“Failure [to] adequately [] brief an issue on appeal constitutes waiver of that

argument.”). In any event, the plea agreement was signed after the Boltons

were tried and convicted and thus could not have conceivably qualified as

Brady material. Swenson, 894 F.3d at 683.

Confrontation Clause Rights

Both Charles and Linda argue that their Confrontation Clause rights

were violated when Agent Luker was permitted to testify as to out-of-court

statements that Lee had made to him since Lee was not available for cross-

examination at trial given his invocation of the Fifth Amendment right against

self-incrimination. “Alleged Confrontation Clause violations are reviewed de

novo and subject to harmless error analysis.” United States v. Garcia, 887 F.3d

205, 209 (5th Cir. 2018). However, “[a] defendant may not complain on appeal

of errors that he himself invited or provoked the [district] court . . . to commit.”

United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014) (citing United States

v. Wells, 519 U.S. 482, 487–88 (1997)). Only errors attributed to the actions of

the defense will be considered invited errors. Id. The standard of review for

invited error is higher than that of plain error review. Id. “We will not reverse

on the basis of invited error, absent manifest injustice.” Id.

“The Confrontation Clause guarantees a defendant the opportunity for

effective cross-examination.” United States v. Lockhart, 844 F.3d 501, 510 (5th

Cir. 2016) (citing Delaware v. Fensterer, 474 U.S. 15, 19–20 (1985)). The

Supreme Court has held “that the prosecution violates this clause when it

introduces ‘testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior

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opportunity for cross-examination.’” Garcia, 887 F.3d at 212 (quoting Crawford

v. Washington, 541 U.S. 36, 53–54 (2004)).

During the trial, the district court ruled that the government could not

elicit testimony concerning Lee’s out-of-court statements on grounds that Lee

was unavailable to be cross-examined because he had asserted his Fifth

Amendment privilege against self-incrimination and would not testify at trial.

The district court ruled that any out-of-court statement by Lee would be

considered hearsay without an applicable exception. The record reflects that

the government did not question Agent Luker or anyone else about the content

of any out-of-court statement by Lee. However, during Owen’s cross-

examination of Agent Luker, he asked Luker to “[t]ell the jury, please, what

business supply John Lee purchased from Sports 22.” The district court

interrupted and suggested that the solicited testimony would be inadmissible

hearsay and a bench conference was held with all counsel. Outside of the

presence of the jury, both defense counsel urged the court to allow the line of

questioning and acknowledged that Agent Luker’s answers would involve

statements that Lee had made to him. The bench conference ended and Owen

stated to Agent Luker: “So if I understand your testimony, what John Lee has

told you with reference to the cashed checks is that he bought $273,520 worth

of food and liquor from Sports 22 and Hall’s Package.” Agent Luker responded,

“Over the five years, that’s correct.” Owen commented “You will agree that’s a

lot of ribs, isn’t it?” and Agent Luker answered affirmatively.

Given the above record evidence, we conclude that the Boltons, through

their counsel, invited the error of soliciting Agent Luker to testify as to

statements that Lee made, resulting in the admission of hearsay. Salazar, 751

F.3d at 332. Considering, however, the substantial amount of evidence

presented at trial against the Boltons that did not include the checks written

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by Lee, admission of the hearsay statements did not result in a “manifest

injustice.” Id.

Charles claims he dissented from Owen’s decision to solicit the hearsay

statements but he misinterprets the law on this issue. As the government

points out, the right to confrontation is susceptible to waiver by counsel but

when a defendant does not object to his attorney’s decision at trial or present

an argument as to why his counsel’s actions could not have been a legitimate

trial tactic, he waives that right. United States v. Ceballos, 789 F.3d 607, 616

(5th Cir. 2015) (quoting United States v. Reveles, 190 F.3d 678, 683 (5th Cir.

1999) (“When a defendant has waived a right, the district court cannot be said

to have erred by failing to override the intentions of the defendant’s counsel by

asserting the right sua sponte.” (emphasis in original))); see also United States

v. Stephens, 609 F.2d 230, 232–33 (5th Cir. 1980) (holding “that counsel in a

criminal case may waive his client’s Sixth Amendment right of confrontation

by stipulating to the admission of evidence, so long as the defendant does not

dissent from his attorney’s decision, and so long as it can be said that the

attorney’s decision was a legitimate trial tactic or part of a prudent trial

strategy”). Here, the Boltons have failed in both respects since they did not

object to their respective counsels’ decisions to solicit the hearsay statements

at trial, and they have failed to present any type of argument on appeal as to

why admission of the statements could not have been a legitimate trial tactic.

Ceballos, 789 F.3d at 616.

Based on a close review of the trial record, we hold that the district

court’s admission of the hearsay statements was invited error, solicited by both

sets of defense counsel. Salazar, 751 F.3d at 332. The invited error did not

rise to the level of manifest injustice given the substantial evidence presented

at trial to support the Boltons’ convictions, aside from the evidence involving

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the checks written by Lee. Id. Further, to the extent they attempt to argue

otherwise, the Boltons have failed to show that they have not waived their

Confrontation Clause rights under Ceballos. 789 F.3d at 616.

Prosecutorial Misconduct

According to Charles, “his Fifth and Fourteenth Amendments rights to

due process of law [were] violated where the Government engaged in (1)

improper vouching for the credibility of its witnesses, (2) making false

statements to the jury, (3) engaging in derogatory name calling, and (4) making

improper personal impressions.” He urges de novo review.

This court conducts a two-part analysis of prosecutorial misconduct.

United States v. Meza, 701 F.3d 411, 429 (5th Cir. 2012). First, we consider

whether the prosecutor made an improper remark and if so, we look next to

see if the remark affected the substantial rights of the defendant. Id. Usually,

we review the first question de novo and the second for abuse of discretion. Id.

We will conclude that “a defendant’s substantial rights are affected only where

the error in question affected the outcome of the district court proceedings.”

Id. To determine whether the error affected the outcome of the proceedings,

we must “assess (1) the magnitude of the statement’s prejudice, (2) the effect

of any cautionary instructions given, and (3) the strength of the evidence of the

defendant’s guilt.” Id. However, when a defendant fails to object

contemporaneously to the prosecutor’s allegedly improper statements, we

review his prosecutorial misconduct claims for plain error. United States v.

Bennett, 874 F.3d 236, 247 (5th Cir. 2017). Under this standard, a defendant

must show an error that is plain and affects his substantial rights. Id. at 247–

48. “If these conditions are present, we may exercise our discretion to correct

the error if it ‘seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” Id. at 248.

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“In attempting to establish that a prosecutor’s improper comments

constitute reversible error, the criminal defendant bears a substantial burden.”

Id. at 247. This court does “not lightly make the decision to overturn a criminal

conviction on the basis of a prosecutor’s remarks alone.” Id. “We also presume

that a jury can and will follow an instruction that attorneys’ statements are

not evidence, ‘unless there is an overwhelming probability that the jury will be

unable to follow the instruction and there is a strong probability that the effect

is devastating.’” Id. Our ultimate question is “whether the prosecutor’s

remarks cast serious doubt on the correctness of the jury’s verdict.” Id.

Despite the fervor of Charles’s claims of prosecutorial misconduct, the

trial record does not support them. Moreover, the district court instructed the

jury at the start of trial that attorney statements are not evidence, rendering

any potential prejudice harmless. 5 Meza, 701 F.3d at 429. Additionally, given

the strength of the evidence presented against the Boltons at trial, it is unlikely

that the verdict would have been different absent the prosecutor’s remarks. Id.

The prosecutor’s alleged misconduct, even if proven, did not amount to error,

plain or otherwise. Bennett, 874 F.3d at 247–48.

Jury Instructions

According to Charles, “[t]he cumulative errors in the indictment, jury

instructions, jury verdict form and response to jury notes violated [his] Fifth

5 The district court stated:

The first step in the trial will be the opening statements. The government in

its opening statement will tell you about the evidence which it intends to put

before you so that you will have an idea or a roadmap as to what the

government's case is going to be. Just as the indictment is not evidence, neither

is the opening statement evidence. Its purpose is only to help you understand

what the evidence will be and what the government will try to prove.

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and Fourteenth Amendment rights to due process and a fair trial and resulted

in faulty guilty verdicts and sentences.” We disagree. A review of Charles’s

seven arguments on this issue in the context of the record reveals that he has

failed to show plain error with respect to the indictment (for reasons previously

explained), the jury instructions, or the jury verdict form. See Fairley, 880 F.3d

at 208. We first note that any instances when the district court misstated an

oral instruction were subsequently cured by the correct written instructions

that were provided to the jury. Thus, he has failed to show plain error on any

of his arguments to this effect. Id. We reject all of Charles’s additional claims

about the jury instructions as meritless.

Sentencing

In sentencing Charles, the district court upwardly varied from the

guidelines range of 27 to 33 months, adding an additional 12 months for the

unpaid taxes on the FCSO food theft, and sentenced him to 45 months of

imprisonment. The district court also imposed three years of supervised

release with a special condition requiring payment of $145,849.78 in

restitution and a $10,000 fine. The district court sentenced Linda to 30 months

of imprisonment, along with one year’s supervised release, a $6,000 fine, and

restitution of $145,849.78, owed jointly and severally with Charles.

A. Loss Amount

Charles and Linda both argue that the district court improperly

calculated the loss amount. We disagree. A district court’s loss calculation is

a factual finding that this court reviews for clear error. See Fairley, 880 F.3d

at 215. The district court’s method of calculation is an application of the

guidelines that this court reviews de novo. Id. “[T]he guidelines emphasize

the deference that must be shown to the sentencing judge, who is in a unique

position to assess the applicable loss, so this court need only determine

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whether the district court made ‘a reasonable estimate of the loss.’” Id. “Under

the Sentencing Guidelines, the base offense level for a tax fraud offense derives

from the amount of loss that is the object of the offense.” United States v.

Johnson, 841 F.3d 299, 303 (5th Cir. 2016). If the tax loss is uncertain, the

district court is permitted to “make a reasonable estimate based on the

available facts.” Id. “To prevail on an argument that the district court’s

calculation of tax loss was clearly erroneous, a defendant must introduce

evidence to contradict or rebut the alleged improper computation of the loss.”

Id.

The district court may include tax losses in the total loss computation

that qualify as relevant conduct under U.S.S.G. § 1B1.3, whether charged or

not. See United States v. Powell, 124 F.3d 655, 666 (5th Cir. 1997) (“[T]he facts

of [the defendant’s] conduct make clear that the district court did not clearly

err in deciding that the state tax evasion was part of [the defendant’s] relevant

conduct. It was therefore proper for the district court, in calculating [the

defendant’s] sentence, to include the amount of state fuel excise taxes evaded

in the total ‘tax loss’ used to determine [the defendant’s] base offense level.”).

“It is well established . . . that a ‘jury’s verdict of acquittal does not

prevent the sentencing court from considering conduct underlying the

acquitted charge, so long as that conduct has been proved by a preponderance

of the evidence.’” United States v. Andradi, 309 F. App’x 891, 893 (5th Cir.

2009) (quoting United States v. Watts, 519 U.S. 148, 157 (1997)).

Here, the district court’s total loss amount of $145,849.78 (as reflected in

the PSR) was based on the tax owed as a result of the charged offenses

($117,369.84) and the estimated amount of tax that the Boltons failed to pay

($28,479.94) on the food stolen from the FCSO Detention Center that was used

at their businesses. Testimony was presented at trial that the Boltons received

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approximately $273,000 worth of checks from Lee as income. Charles

incorrectly argues that using the tax loss amounts from the Lee checks was

error because “[t]he John Lee cashed checks were proven to be false based on

the ‘inadmissible hearsay’ testimony of IRS Agent Luker.” As we have stated,

Agent Luker’s testimony that Lee told him that the checks were for “food and

liquor” does not negate Lee’s statements in the FBI 302 interview that he could

not remember what each individual check was for. Additionally, these

statements do nothing to undermine the information in the PSR or show that

it “was inaccurate or materially untrue.” United States v. Scher, 601 F.3d 408,

414 (5th Cir. 2010) (“[The defendant] simply failed to produce reliable evidence

supporting an alternate number or demonstrating that the information in the

PSR was inaccurate or materially untrue.”).

Further, the district court properly included the uncharged tax loss of

$28,479.94 on grounds that the tax loss from the stolen food qualified as

relevant conduct. This conclusion was supported by witness statements and

detailed information in the PSR. Powell, 124 F.3d at 664 (observing that

relevant conduct includes “all such acts and omissions that were part of the

same course of conduct or common scheme or plan as the offense of conviction”

(quoting U.S.S.G. § 1B1.3(a)(2))).

Additionally, the district court’s inclusion of the loss amount from Count

1 was proper. Charles’s acquittal on Count 1 did not prevent the district court

from considering the conduct underlying the acquitted charge as long as it was

proven by a preponderance of the evidence, which it was in this case. Watts,

519 U.S. at 157; Andradi, 309 F. App’x at 893. There was sufficient evidence

presented at trial to prove that the Boltons committed tax fraud in 2009 and

they were both convicted of filing false returns that year.

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In sum, because the Boltons have failed to produce sufficient rebuttal

evidence as to the loss amount, the district court did not clearly err in adopting

the PSR’s loss amount of $145,849.78. Scher, 601 F.3d at 414.

B. Sentences

Charles and Linda both argue that their sentences were substantively

unreasonable or otherwise defective. Neither Charles nor Linda objected to

their sentences in the proceedings below so their claims on appeal are reviewed

for plain error. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

“A sentence within the Guidelines range is presumptively reasonable,

and this presumption is rebutted only if the appellant demonstrates that the

sentence does not account for a factor that should receive significant weight,

gives significant weight to an irrelevant or improper factor, or represents a

clear error of judgment in balancing sentencing factors.” United States v.

Hernandez, 876 F.3d 161, 166 (5th Cir. 2017). On the other hand, “[a] non-

Guidelines sentence unreasonably fails to reflect the statutory sentencing

factors set forth in § 3553(a) where it (1) does not account for a factor that

should have received significant weight, (2) gives significant weight to an

irrelevant or improper factor, or (3) represents a clear error of judgment in

balancing the sentencing factors.” United States v. Nguyen, 854 F.3d 276, 283

(5th Cir. 2017). When “reviewing a challenge to the length of a non-Guidelines

sentence, this court ‘may take the degree of variance into account and consider

the extent of a deviation from the Guidelines.’” Id. We give “‘due deference to

the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51

(2007)).

Charles argues that his sentence was substantively unreasonable or

otherwise defective and that the district court’s upward variance was not

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warranted. This argument fails. The district court based the upward variance

on relevant § 3553(a) factors, including Charles’s history and characteristics

(specifically his theft of food from the FCSO detention center) and the need to

deter future criminal conduct. See 18 U.S.C. § 3553(a)(1)–(2). The district

court was within its discretion to use the food theft as a basis for an upward

variance because it was admitted as relevant conduct in the PSR and was not

established to be materially untrue, inaccurate or unreliable. See

U.S.S.G. § 1B1.3(a)(2); United States v. Zuniga, 720 F.3d 587, 591 (5th Cir.

2013). As the government further points out, the district court was permitted

to consider the food theft in the context of the upward variance even it was

determined not to be relevant conduct. United States v. Rhine, 637 F.3d 525,

528–29 (5th Cir. 2011). Moreover, contrary to Charles’s assertion, the record

reveals that the district court explained that it was imposing the upward

variance because, among other reasons, “[t]here was a culture of corruption in

the Forrest County Jail, and [Charles] knew it and . . . allowed it to go on.” For

these reasons, Charles has failed to show that the district court plainly erred

in imposing his sentence or in applying the sentencing factors under § 3553(a).

Nguyen, 854 F.3d at 283. His remaining contentions on this issue are denied

as meritless.

Linda claims that her sentence was substantively unreasonable because

the loss amount was an inadequate measure of culpability and the district

court failed to consider other relevant sentencing factors such as her age and

the fact that she had “nearly zero chance of recidivism.” Her argument is

misplaced. This court has acknowledged that “[a] sentence within the

Guidelines range is presumptively reasonable, and this presumption is

rebutted only if the appellant demonstrates that the sentence does not account

for a factor that should receive significant weight, gives significant weight to

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an irrelevant or improper factor, or represents a clear error of judgment in

balancing sentencing factors.” See Hernandez, 876 F.3d at 166. Although

Linda attempts to argue that the total loss amount was an inadequate measure

of her culpability, she was convicted by a jury on five counts of filing false tax

returns and she was unable to present evidence to rebut the loss amount as

shown in the PSR or to prove that it “was inaccurate or materially untrue” in

general or as it related specifically to her. Scher, 601 F.3d at 414. While

Linda’s age and allegedly low chances of recidivism might be relevant

considerations, the district court was free to give other § 3553(a) factors more

significant weight in imposing her sentence. 18 U.S.C. § 3553(a). Accordingly,

Linda has failed to rebut the presumption of reasonableness afforded to her

within-guidelines sentence. United States v. Gomez-Herrera, 523 F.3d 554,

565–66 (5th Cir. 2008) (“As [the defendant] was sentenced within a properly

calculated Guidelines range, his sentence is entitled to a presumption of

reasonableness that we see no reason to disturb.”). Consequently, we hold that

the district court did not plainly err in imposing Linda’s sentence. See Ruiz,

621 F.3d at 398.

C. Restitution

Charles argues that the district court erred in imposing restitution. We

review Charles’s claim that the district court lacked the authority to impose

restitution de novo. See United States v. Westbrooks, 858 F.3d 317, 327 (5th

Cir. 2017). We review the restitution amount imposed by the district court for

abuse of discretion. United States v. Benns, 810 F.3d 327, 329 (5th Cir. 2016).

“Restitution to the IRS may be imposed as a condition of supervised

release under § 3583[.]” Nolen, 472 F.3d at 382. To calculate the restitution

amount, the district court is granted wide latitude and “may simply make a

reasonable estimate based on the available facts.” Westbrooks, 858 F.3d at 329.

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Nevertheless, “a restitution award due prior to the commencement of a term of

supervised release is a component of the sentence, not a condition of supervised

release,” and is therefore unauthorized. Id. at 328.

Charles’s general challenge to the district court’s authority to impose

restitution fails as it is well-established that “[r]estitution to the IRS may be

imposed as a condition of supervised release under § 3583[.]” Nolen, 472 F.3d

at 382. However, he does correctly argue and the government concedes that “a

restitution award due prior to the commencement of a term of supervised

release is a component of the sentence, not a condition of supervised release,”

and is therefore unauthorized. Westbrooks, 858 F.3d at 328. Here, the district

court’s condition that the restitution amount was due “immediately” 6 was

unauthorized under this court’s precedent in Westbrooks. Id. at 328 (“We thus

conclude that the judgment contains an error in ordering that [the defendant]

begin making payments while in prison—a timeline that exceeds the court’s

statutory authority. But that error does not overcome the other indications

that the court intended to impose restitution under the statute permitting it

as part of supervised release.”). Accordingly, we modify the judgment to reflect

that the Boltons do not owe restitution until their terms of supervised release

begin. Id. (“The most efficient remedy in this situation is to modify the

judgment so that [the defendant] does not owe restitution until she begins her

term of supervised release.” (citing 28 U.S.C. § 2106)).

Finally, as to the amount of restitution, this court gives the district court

“wide latitude” to determine the amount of loss based on the available facts.

6 The district court stated at sentencing: “It’s ordered that the defendant pay a

thousand dollars a month toward the restitution beginning immediately. Payment begins

and shall continue while he is in prison.”

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Westbrooks, 858 F.3d at 329. Because the district court used the same figures

to calculate the restitution amount that it used to calculate the damages

amount, Charles has failed to show that the restitution award was an abuse of

discretion. See Scher, 601 F.3d at 414. All of his remaining arguments on this

issue are meritless.

Conflict-Free Choice of Counsel or Ineffective Assistance of Counsel

Charles claims that his trial counsel (Owen) “labored under an actual

conflict of interest and provided unconstitutional representation before trial,

during trial, and at sentencing because of a direct conflict of interest

concerning Owen’s relationship to attorney John Lee.” Charles presented his

allegations of conflict of counsel and ineffective assistance of counsel in three

separate post-trial motions, all three of which moved for a new trial.

A district court’s denial of a motion for a new trial is reviewed for abuse

of discretion. Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016). “This

standard is necessarily deferential to the trial court because we have only read

the record, and have not seen the impact of the witnesses on the jury or

observed the demeanor of the witnesses ourselves, as has the trial judge.”

United States v. Stanford, 823 F.3d 814, 838 (5th Cir. 2016). Questions of law

are reviewed de novo. United States v. Anderson, 755 F.3d 782, 800 (5th Cir.

2014). When there are mixed questions of law and fact, this court reviews “the

underlying facts for abuse of discretion, but the conclusions to be drawn from

those facts de novo.” Stanford, 823 F.3d at 838.

Whether a defendant’s counsel labored under a conflict of interest is a

mixed question of law and fact that this court reviews de novo. United States

v. Hernandez, 690 F.3d 613, 619 (5th Cir. 2012). We also conduct a de novo

review of the district court’s determinations concerning ineffective assistance

of counsel claims. See United States v. Shepherd, 880 F.3d 734, 740 (5th Cir.

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2018). A district court’s decision to disallow substitution of counsel is reviewed

for abuse of discretion. United States v. Jones, 733 F.3d 574, 587 (5th Cir.

2013).

Although generally disfavored, a new trial may be granted on the basis

of newly discovered evidence when “(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 a lack of diligence by the defendant; (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.”

Anderson, 755 F.3d at 800; Fed. R. Crim. P. 33.

“The Sixth Amendment right to counsel includes the ‘right to

representation that is free from any conflict of interest.’” Hernandez, 690 F.3d

at 618. Generally, this court will determine that “a conflict exists when defense

counsel allows a situation to arise that tempts a division in counsel’s loyalties.”

Id. “If a defendant chooses to proceed with representation by counsel who has

a conflict of interest, a district court must conduct what is commonly known as

a ‘Garcia hearing’ 7 to ensure a valid waiver by the defendant of his Sixth

Amendment right.” Id. A district court’s requirement to conduct a Garcia

hearing only exists if there is an actual conflict of interest and not just a

“speculative or potential conflict.” Id. at 618–19.

Ineffective assistance of counsel claims are evaluated under the legal

standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, a defendant must prove both deficient performance and prejudice.

466 U.S. at 700. To prove deficient performance, the defendant must show that

7 United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975).

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his counsel’s performance “fell below an objective standard of reasonableness.”

Id. at 688. To show prejudice, the defendant “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694.

Charles’s claim that Owen labored under an actual conflict of interest

when he represented Charles is meritless. In its memorandum opinion

denying Charles’s motions for post-trial relief, the district court carefully

described the payment arrangements between Charles and Owen and the

parties that paid Owen’s retainer on Charles’s behalf and Charles’s knowledge

of those payments. The district court clarified that Lee was not a government

witness, he was never called to testify at trial, and the parties understood that

if he were called, he would invoke his Fifth Amendment privilege against self-

incrimination and not testify. Additionally, the record reflects that Charles

gave Owen a check written by Lee to represent him in the food theft case back

in 2014, but the tax fraud investigation against Lee did not commence until

2016. Consequently, Owen’s acceptance of Lee’s payment could not have

created a conflict in Owen’s representation of Charles. Moreover, as the

district court noted, Charles not only knew of Lee’s payments to Owen, he

hand-delivered the checks. He has failed to meet the requirements for a new

trial in that the evidence he attempts to use to support his motion was known

and available to him several years prior to the commencement of his trial.

Anderson, 755 F.3d at 800; Fed. R. Crim. P. 33.

Charles has also failed to show that he was denied his “counsel of choice”

at sentencing. As the government points out, neither the district court nor

Owen knew that Charles had retained new counsel to represent him at

sentencing until shortly before the hearing. The district court was within its

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sound discretion to deny Charles’s motion to continue as it was his fourth

motion. At that point, Huntley had neither sought pro hac vice admission nor

made an appearance to represent Charles. Nevertheless, the district court

“allowed the Boltons to confer privately with [Huntley], along with a

representative of the local Federal Public Defender’s Office invited by the

district court, to determine who should represent [Charles]. Owen appeared

at sentencing on behalf of [Charles], but the district court allowed Huntley to

unofficially appear on [Charles]’s behalf as well.” The district court went above

and beyond to accommodate Charles’s “choice of counsel” at sentencing and his

choice to instruct Owen to continue to represent Charles alongside Huntley at

sentencing was not an abuse of discretion. See United States v. Gonzalez-

Lopez, 548 U.S. 140, 152 (2006) (observing that trial courts have “wide latitude

in balancing the right to counsel of choice against the needs of fairness and

against the demands of its calendar”). Likewise, the district court’s decision to

deny Charles a Garcia hearing was proper given that the district court

conducted extensive fact-finding and concluded that no actual conflict existed.

Hernandez, 690 F.3d at 618–19 (noting that a district court’s requirement to

conduct a Garcia hearing only exists if there is an actual conflict of interest

and not just a “speculative or potential conflict”). His remaining arguments

on this issue are denied as meritless.

Attorney-Client Privilege Waiver

Charles argues that his communications with Owen should be protected

by the attorney-client privilege, that he did not waive that privilege, and that

the district court erred in granting the government’s motion for

reconsideration and unsealing the record. He also complains that the district

court did not have jurisdiction over his case when it issued an order on July

24, 2017 for him to file a response to the government’s motion for

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reconsideration. He argues that this is because he filed an appeal on July 13,

2017 and this court had accepted jurisdiction which effectively divested the

district court of jurisdiction over the proceedings at the time it ordered him to

respond to the government’s motion.

“In evaluating a claim of attorney-client privilege, we review factual

findings for clear error and ‘the application of the controlling law de novo.’” In

re Itron, Inc., 883 F.3d 553, 557 (5th Cir. 2018). The controlling law to be

applied here is that of Mississippi, which governs . . . any assertion of attorney-

client privilege or putative waiver thereof. Id. “Our task is to apply the law

as would the Mississippi Supreme Court.” Id. (citing Guilbeau v. Hess Corp.,

854 F.3d 310, 311 & n.4 (5th Cir. 2017)). Mississippi law allows clients the

“privilege to refuse to disclose . . . any confidential communication[s] made to

facilitate professional legal services, if those communications were made

between the client . . . and [his] lawyer or among lawyers . . . representing the

same client.” Id. (citing Miss. R. Evid. 502(b) (internal quotation marks

omitted)).

“By definition, the attorney-client privilege protects only confidential

communications.” Id. at 558 (citing Miss. R. Evid. 502(b) (emphasis omitted)).

A client waives the privilege “[b]y disclosing such communications to third

parties—such as by revealing them in open court[.]” Id. The waiver extends to

related subject matter. Id. A client also “waives the privilege by affirmatively

relying on attorney-client communications to support an element of a legal

claim or defense—thereby putting those communications ‘at issue’ in the case.”

Id. That is to say, “when a party entitled to claim the attorney-client privilege

uses confidential information against his adversary (the sword), he implicitly

waives its use protectively (the shield) under that privilege.” Id.

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Case: 17-60502 Document: 00514699814 Page: 33 Date Filed: 10/26/2018

No. 17-60502

c/w No. 17-60576

The issue of whether Charles waived the attorney-client privilege arose

out of Owen’s filing a motion to deem the privilege and the work-product

doctrine waived so that his responses to Charles’s allegations could be filed in

the public record. In June 2017, the district court found that Charles had

waived the attorney-client privilege but ordered that Owen’s responses to

Charles’s allegations against him be filed under seal until the conclusion of the

Boltons’ convictions and sentences. However, in its order placing Owen’s

responses under seal, the district court acknowledged “that Charles has

repeated[ly] used both this Court and the media in an attempt to [publicly]

vilify both Owen and the Government.” The government filed a motion to

reconsider requesting that the responses be unsealed. Charles was ordered to

respond and the district court ultimately granted the government’s motion for

reconsideration stating that “[t]he Court is concerned only with previously

privileged information which could prejudice Bolton on appeal or in the event

of a new trial. Because Bolton makes no specific arguments towards any of the

previously privileged information, the Court finds that the Motion for

Reconsideration should be granted.” Charles then filed a second notice of

appeal, No. 17-60576, of the district court’s order granting the motion for

reconsideration and unsealing Owen’s responses to Charles’s allegations

against him.

Charles’s argument is unconvincing that the district court was divested

of jurisdiction when it ordered him to file a response to the government’s

motion for reconsideration. The Supreme Court has held and this court has

recently recognized that “[a]n appeal divests the district court of its jurisdiction

‘over those aspects of the case involved in the appeal.’” United States v. Pena,

713 F. App’x 271, 272 (5th Cir. 2017) (per curiam) (unpublished) (quoting

Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)). As

33

Case: 17-60502 Document: 00514699814 Page: 34 Date Filed: 10/26/2018

No. 17-60502

c/w No. 17-60576

Charles acknowledges, he has filed two appeals: (1) No. 17-60502, filed on July

13, 2017, pertaining to his convictions and sentences and (2) No. 17-60576, filed

August 2017, pertaining to the district court’s grant of the motion for

reconsideration and the unsealing of Owen’s responses. The only appeal

pending at the time the district court issued its order to him to respond to the

government’s motion for reconsideration was No. 17-60502, the appeal

pertaining to his convictions and sentences. The district court had not been

divested of jurisdiction with respect to the issues involved in Charles’s second

appeal pertaining to his allegations against Owen, waiver of the attorney-

client privilege, release of the work-product doctrine information, and

unsealing the record. Marrese, 470 U.S. at 379; Pena, 713 F. App’x at 272.

Next, under controlling Mississippi law, Charles waived the attorney-

client privilege when he charged Owen with providing him with ineffective

assistance and further when he made public statements to third parties via

the media, social media, the court, and the press, to publicly criticize and make

derogatory comments about Owen and his firm’s representation of him. See In

re Itron, Inc., 883 F.3d at 558 (noting that a client waives the privilege “[b]y

disclosing such communications to third parties—such as by revealing them in

open court” and “by affirmatively relying on attorney-client communications to

support an element of a legal claim or defense—thereby putting those

communications ‘at issue’ in the case”). The district court properly granted the

government’s motion for reconsideration to modify the protective order and

unseal Owen’s responses to Charles’s allegations. See United States v. Morales,

807 F.3d 717, 723 (5th Cir. 2015). His remaining arguments on this issue are

denied as meritless.

34

Case: 17-60502 Document: 00514699814 Page: 35 Date Filed: 10/26/2018

No. 17-60502

c/w No. 17-60576

III. Conclusion

For the foregoing reasons, we AFFIRM the convictions and sentences of

Charles and Linda Bolton and MODIFY the district court’s judgment to show

that the restitution owed by the Boltons does not become due until they begin

their terms of supervised release.

35