United States v. Jonathan Bolar , 483 F. App'x 876 ( 2012 )

Case: 10-30879 Document: 00511876666 Page: 1 Date Filed: 06/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2012
No. 10-30879 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JONATHAN BOLAR
Defendant - Appellant
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans Division
No. 2:09-CR-138-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Jonathan Bolar appeals his conviction and sentence in district
court for extortion, 18 U.S.C. § 1951, wire fraud, 18 U.S.C. § 1343, failure to file
tax returns, 26 U.S.C. § 7203, and structuring financial transactions to evade
reporting requirements, 31 U.S.C. § 5342. The appellant argues that the district
court clearly erred in denying his Batson1 challenge, that the record is devoid of
evidence supporting the extortion and wire fraud convictions, and that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Batson v. Kentucky, 476 U.S. 79 (1986).
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district court plainly erred in calculating the sentencing guidelines range and in
imposing a 53-month upward variance. For the following reasons, we AFFIRM
the conviction and sentence.2
I.
A.
Jonathan Bolar (Bolar), a former Gretna, Louisiana city councilman, was
indicted on four counts of extortion, two counts of wire fraud, four counts of
failure to file a tax return, and three counts of structuring financial transactions
to evade reporting requirements. Bolar was an elected councilman for Gretna
from 2001 to 2010, during which time he was also the owner and operator of J.C.
Bolar & Sons, Inc., 636 Franklin L.L.C., and Bolar Contractors, L.L.C.
The government presented testimony from several victims detailing a
pattern of extortion and fraud. Local Gretna businessman Frank Warburton
testified that Bolar required him to make a $5000 campaign contribution in
order to obtain a permit to renovate an apartment complex. Bolar also required
Warburton to use Bolar’s construction firm for the renovation, at a contracted
price of $92,500. Warburton paid Bolar $88,000 toward the renovation before
denying a final payment when Bolar failed to complete the work. Bolar
threatened to pull the building permit if Warburton did not make the final
payment. A Gretna city inspector then informed Warburton that the windows,
air conditioners, and water heaters installed by Bolar did not conform to the city
code. Warburton paid approximately $18,000 to have those issues fixed.
Another witness, Jim Walden, described a similar encounter with Bolar.
Walden was a businessman from Kentucky who sought to open a new multi-
state restaurant franchise in Bolar’s district. Despite having a building permit,
2
The appellant has moved to proceed pro se on appeal. His counsel has thoroughly
briefed the issues before the court, and this case is being decided without argument. The
motion is denied.
2
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Walden was told that he needed Bolar’s approval to begin the project. Bolar and
Walden met at the construction site, where Bolar told Walden that he resented
the fact that Walden had not approached him before beginning the project.
Bolar told Walden to help reduce his campaign debt by paying him $2,500 in
cash. When Walden agreed to pay $2,200, Bolar told him that his “problems
[would] go away.”
Quan Trinh, a Gretna business owner, testified that when he sought to
reopen a laundromat that had been shuttered, he was told that he would need
to have the property re-zoned. Bolar came to Trinh’s restaurant, introduced
himself as the councilman for the district, and told him that he would need $500
for each of the five Gretna councilmen to guarantee re-zoning. Trinh refused to
pay, and the re-zoning application was denied. The jury heard a recording of the
city council meeting in which Bolar argued against the proposed re-zoning.
Trinise Forges, a bus driver and life-long friend of Bolar’s, testified that
when she was trying to rebuild her home after Hurricane Katrina, Bolar
convinced her to write him a check for $12,500. Bolar told Forges that he would
provide wood and cabinetry in exchange for the money, but had Forges write
“consultation” in the memo line of the check. Bolar cashed the check a few days
later and denied any responsibility for supplying the wood. He claimed that the
purpose of the check was to make him a consultant on the construction. Bolar
did no work on the home and supplied no materials. Forges was forced to buy
the wood from another source for $13,000.
Later, as Forges’s cousin prepared to pour the slab for the home, Bolar
demanded an additional $2,500 to obtain a zoning variance because the slab was
too close to the property line. Concerned that she would lose the $9,000 she had
already spent on concrete if she was unable to go forward with building, Forges
made the$2,500 payment. She later learned that the actual cost of the variance
was $25.00.
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When Bolar failed to obtain the variance and failed to return Forges’s
money, Forges reported him to the district attorney. After hearing that Forges
had reported him, Bolar responded that the district attorney would “tell [her] the
position [Bolar] had in Gretna.” Forges, unhappy with the pace of the district
attorney’s investigation, then reported Bolar to the Federal Bureau of
Investigation, the Gretna police, and local media. Bolar sued Forges for slander.
Testimony was also presented showing that Bolar on two separate
occasions purported to sell a piece of property that he did not own. A member
of a local church testified that Bolar represented himself as the owner of a piece
of land that the church was interested in buying. The witness and Bolar
executed a purchase agreement, and the church gave Bolar $3,750 in earnest
money. Bolar cashed the check the following day. The church subsequently
learned that Bolar was not the owner of the property. Bolar never returned the
$3,750.
Betty Williams, another friend of Bolar’s, testified that she and her
husband contacted Bolar about buying the same piece of land. They were
interested in building a home for their daughter so that she could help with the
care of Mr. Williams, who was very ill. Bolar did not inform them that he had
sold the property a year earlier. Bolar and the Williamses executed a purchase
agreement for the property, with Bolar requiring a down payment of $11,250.
The Williamses gave him a check, which he cashed the next day. At Bolar’s
request, they later gave him two more checks: one for $1,600 to survey the
propery, and one for $3,550 to resubdivide the lot. Bolar did not survey the
property or resubdivide. The Williamses eventually obtained a judgment against
Bolar, but had not yet recovered the money as of the date of his criminal trial.
Finally, another friend of Bolar’s, Adonis Favorite, testified that she
committed perjury for Bolar before the grand jury at his urging. She falsely
testified before the grand jury that she overheard him say to a constituent that
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he would not accept money to obtain a variance for the constituent. After giving
that testimony, Favorite met with Bolar, who frisked her to ensure that she was
not wearing a wire. Later, before the start of the trial, Favorite met with the
federal agents handling the case against Bolar and confessed that she had lied
at Bolar’s request.
B.
Bolar was indicted on four counts of extortion, two counts of wire fraud,
four counts of failure to file a tax return, and three counts of structuring
financial transactions to evade reporting requirements. During voir dire, Bolar,
who is African American, objected on the ground that the government had used
peremptory strikes to bar jurors on the basis of race. The district court noted
that the 12-person jury included four African Americans and that the
government’s witness list included African Americans. Bolar argued that a
prima facie case of racial discrimination was made because the government
exercised five of its seven challenges on African American members of the jury
pool.
The district court requested that the government provide its reasons for
challenging the potential African American jurors. The government asserted
that it struck two jurors, one African American and one Caucasian, because of
their youth. The government further asserted that the African American juror
was not only young but worked with medical records, and that the prosecution
had “had a tremendous amount of trouble” with medical records personnel
failing to respond to subpoenas for documents. The prosecutor asserted that it
struck another potential African American juror because he had fallen asleep
during voir dire, and had seen news coverage of the case but had “no problem”
with the defendant “whatsoever.” As to the remaining jurors, the government
asserted that it struck one because her son was in jail, one because the
prosecutor had successfully pursued a cause against the potential juror’s cousin
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for fraud, and one because he worked for a trucking company and the defendant
owned a trucking company.
The court concluded that the government’s race-neutral explanations were
not pretextual, and determined that the defense failed to carry its burden of
proving purposeful discrimination.
At the close of the government’s case, Bolar moved for a judgment of
acquittal, which was denied. He did not renew the motion following the
conclusion of his case or following the verdict. The jury unanimously convicted
him on all counts.
In calculating the sentencing guidelines range, the probation officer added
offense levels based on his finding that Bolar had received more than one bribe,
that Bolar had extorted or attempted to extort $122,000 from various victims,
that Bolar was a public official, and that Bolar obstructed justice. With a total
offense level of 32 and criminal history category of 1, the recommended
guidelines range was 121 to 151 months.
The government moved for an upward variance. The district court agreed
that an upward variance was appropriate, and sentenced Bolar to a total of 204
months in prison, three years of supervised release, $134,732 in restitution to
the IRS, $39,350 in restitution, and $1000 in special assessments. The court
provided written reasoning for the upward variance, emphasizing the “gravity
of the multiple obstructions” of justice, Bolar’s “persistent efforts to obstruct the
factfinding process,” and his “blatant and pervasive” use of extortion that
“undermine[d] and debilitate[d] the public’s confidence in their elected officials.”
II.
A.
Bolar challenges the district court’s denial of his Batson claim, arguing
that the government’s explanations for striking five African American jurors
were pretextual. Batson v. Kentucky, 476 U.S. 79 (1986), established a three-
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step process for evaluation of a defendant’s claim that a prosecutor used
peremptory strikes in a racially discriminatory manner. Moody v. Quarterman,
476 F.3d 269, 266 (5th Cir. 2007). First, the challenger must make a prima facie
showing of discriminatory jury selection. Id. The burden then shifts to the party
accused of discrimination to provide a race-neutral explanation for its strikes.
Id. The explanation “need not be persuasive, nor even plausible, but only race-
neutral and honest.” United States v. Williams, 264 F.3d 561, 571 (5th Cir.
2001). Finally, the trial court “must determine whether the defendant has
carried his burden of proving purposeful discrimination.” Hernandez v. New
York, 500 U.S. 352, 359 (1991). The trial court’s findings on that point
“represents a finding of fact of the sort accorded great deference on appeal,” id.
at 364, and are reviewed for clear error. United States v. Williamson, 533 F.3d
269, 274 (5th Cir. 2008).
Bolar asserts that five of six jurors struck by the government were African
American, but fails to establish a discriminatory motive. The government
declined to exercise one of its peremptory challenges, and four of the sitting
jurors were African American. Bolar’s arguments that the government’s race-
neutral explanations were mere pretext are unavailing. The reasons provided
by the government were not implausible or fantastic, and the district court made
the determination that they were credible after observing the prosecutor’s and
the jurors’ demeanor. See Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). The
district court’s denial of Bolar’s Batson challenge was not clear error.
B.
Bolar argues that the evidence presented at trial was insufficient to
support a conviction on four counts of extortion under the Hobbs Act, 18 U.S.C.
§ 1951(a). To prove extortion, the government was required to show that Bolar
“in any way or degree obstruct[ed], delay[ed], or affect[ed] commerce or the
movement of any article or commodity in commerce, by robbery or extortion.”
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§ 1951(a). Extortion can be proved by showing that the defendant was a public
official who “acted under color of official right” to obtain another’s property with
his consent, or that he attempted to do so. § 1951(a), (b)(2); United States v.
Wright, 797 F.2d 245, 250 (5th Cir. 1986). That element is met if the
government shows that the defendant “has taken a fee, unlawfully, under color
of his public office, in return for performance or nonperformance of an official
act.” Wright at 250.
Bolar did not renew his motion for a judgment of acquittal following the
close of the evidence, therefore review is for plain error. United States v.
Delgado, 679 F.3d 320, 328–29 (5th Cir. 2012) (en banc). Bolar must show (1)
an error or defect, (2) that was clear or obvious, and that (3) affected his
substantial rights. Id. at 329. If he meets each of those prongs, this court has
the discretion to correct the error if it concludes that the error was a “manifest
miscarriage of justice,” i.e., it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 328–29.
As discussed above, the record is replete with evidence showing that Bolar
acted under color of his position as a Gretna city councilman to obtain or attempt
to obtain money. He repeatedly identified himself as a city councilman and
explicitly referred to his power as a government official in his conversations with
each of the four victims.
Bolar asserts that the record is devoid of evidence that his actions affected
interstate commerce. In order to satisfy the interstate commerce requirement,
the government must show either that (1) the victim “is directly and customarily
engaged in interstate commerce” and the extortion depletes his assets; (2) the
extortion causes or creates the likelihood that the victim will deplete the assets
of an entity engaged in interstate commerce, or (3) “the number of individuals
victimized or the sum at stake is so large that there will be some cumulative
effect on interstate commerce.” United States v. Collins, 40 F.3d 95, 100 (5th
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Cir. 1994). The effect on interstate commerce can be direct or indirect, need only
be de minimis, and is determined on a case-by-case basis. See United States v.
Robinson, 119 F.3d 1205, 1211 (5th Cir. 1997); Collins, 40 F.3d at 99; United
States v. Wright, 797 F.2d 245, 248 (5th Cir. 1986).
The government contends that Bolar stipulated the interstate commerce
element. Bolar and the government agreed to the following stipulation:
that the following financial institutions, to-wit: Capital One,
formerly Hibernia Bank; Dryades Savings Bank; Omni Bank;
Whitney Bank; Regions Bank; J.P. Morgan Chase and First Bank
& Trust are financial institutions as defined in Title 31, United
States Code, Section 5312(A)(2), and that these financial
institutions were insured from 2000 to 2008 by the Federal Deposit
Insurance Corporation or FDIC, and that those financial
institutions engaged in financial transactions and commerce
affecting interstate commerce as contemplated by Title 18, United
States Code, Section 951, the Hobbs Act violation statute.
The record strongly suggests that the government, the defense, and the court
were of the belief that the stipulation satisfied the commerce element. The
district court informed the jury of the stipulation and instructed it that there
was “no dispute between the parties” with respect to the interstate commerce
element for the four extortion counts. Bolar agreed to the stipulation and did not
object to the jury instruction.
The stipulation, however, does not necessarily satisfy the interstate
commerce element. Bolar did not extort any of the financial institutions listed
in the stipulation, and none of them can be considered a “victim” under the
statute. Further consideration of the record is necessary to determine whether
there was sufficient evidence to support the interstate commerce element.
The record contains evidence supporting a finding that Bolar’s actions as
to Jim Walden, Frank Warburton, and Quan Trinh affected interstate commerce.
Bolar’s threats to deny approval of the first restaurant in what would be a multi-
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state franchise by Jim Walden affected interstate commerce by obstructing and
delaying the project. Bolar’s obstruction of Warburton’s apartment renovation
project necessarily affected interstate commerce, because apartment rental
affects interstate commerce. Russell v. United States, 471 U.S. 858, 862 (1985).
Bolar’s preventing Trinh from reopening his laundromat because Trinh refused
to pay Bolar constituted the type of disruption that, “if repeated . . . across the
nation, would amount to a substantial effect upon interstate commerce.” United
States v. Robinson, 119 F.3d 1205, 1211 (5th Cir. 1997).
The evidence is not as clear that Bolar’s demand from Trinise Forges of
$2,500 to obtain a variance for a concrete slab affected interstate commerce. No
evidence was presented that Forges was directly and customarily engaged in
interstate commerce, or that the extortion affected an entity engaged in
interstate commerce.
Reversal is only appropriate, though, where there is a “manifest
miscarriage of justice.” Delgado at 331. Bolar agreed at trial to a stipulation
that he, the government, and the court intended would satisfy the interstate
commerce element of the extortion counts. The district court instructed the jury
that there was “no dispute between the parties” with respect to the interstate
commerce element, and Bolar did not object to that instruction. After agreeing
that the interstate commerce element had been satisfied, the defendant cannot
now argue that the government’s failure to produce evidence as to that element
constituted a manifest miscarriage of justice. See United States v. Branch, 46
F.3d 440, 442 (5th Cir. 1995) (holding that a defendant who agreed to a
stipulation covering an element of the offense could not “now claim that the
government failed to offer evidence on an element to which he confessed”). The
defendant has not shown that the extortion convictions were a manifest
miscarriage of justice.
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Bolar also argues that there was insufficient evidence to support the wire
fraud conviction. In order to show that Bolar committed wire fraud, the
government was required to show that Bolar formed a scheme to defraud
another of money by false pretenses and that he used an interstate wire
communication to further the scheme. 18 U.S.C. § 1343. Bolar asserts that he
had no intent to defraud, and was merely “overextended” in his private business
dealings. However, the evidence presented at trial clearly shows that Bolar
intentionally schemed to sell a property that he did not own, both to the
Franklin Street Church of Christ and to the Williams family. He stipulated that
the checks he cashed from the Church and the Williamses caused interstate wire
transfers. The wire fraud conviction was not a manifest miscarriage of justice.
Finally, Bolar asserts that the evidence was insufficient to show that he
intentionally structured banking transactions to avoid reporting requirements.
It is a crime for an individual to structure financial transactions for the purpose
of evading the requirement that a financial institution file a currency
transaction report (CTR) with the government for any cash transaction that
exceeds $10,000. 18 U.S.C. § 5324(a)(3).
Debra Murden, a bank teller, testified that on December 13, 2005, Bolar
made a $22,000 cash deposit, at which time she informed him of the bank’s
reporting obligation. Following that deposit, Bolar avoided making any further
deposits over $10,000. A forensic financial analyst provided a detailed
accounting of Bolar’s cash deposits during the relevant time frame. Between
January 8 and January 9 of 2006, Bolar made three cash deposits of exactly
$10,000 each. On May 16, 2006, he made four cash deposits totally $16,000
divided among four separate accounts. On consecutive days in March of 2007,
Bolar made two cash deposits totaling $15,000. Bolar fails to show that the
record is devoid of evidence that he structured his deposits with the intent to
evade federal reporting requirements.
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C.
Bolar challenges the district court’s calculation of the sentencing
guidelines range, as well as the court’s variance from the range. This court
reviews sentences for reasonableness in light of the factors set forth in 18 U.S.C.
§ 3553(a), applying a two-step process. First, the court ensures that the district
court did not commit any significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range.” Gall v. United
States, 552 U.S. 38, 51 (2007). If the sentence is procedurally sound, the court
considers the substantive reasonabless of the sentence under a deferential abuse
of discretion standard. Id. Although Bolar objected “to the nonguidelines
sentence,” he did not specify a basis for his objection. Therefore review is for
plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009).
According to Bolar, the district court procedurally erred by imposing a
four-level public official enhancement. That enhancement applies to any elected
public official. See U.S. Sentencing Guidelines § 2C1.1(b)(3). As an elected
Gretna City councilman, Bolar is a public official. Applying that enhancement
was not plain error.
Bolar also challenges the value of the amount used to calculate his
guidelines range, arguing that the $84,000 that Warburton paid him should
have been excluded. The Guidelines instruct the court to include in the value
amount “the value of the payment, the benefit received or to be received in
return for the payment, [or] the value of anything obtained or to be obtained by
a public official or others acting with a public official . . . .” Id. at §2C1.1(b)(2).
Bolar fails to show that the inclusion of the $84,000 was plain error.3
3
Review of the guidelines calculation does reveal an error in the extortion value used
to determine the guidelines range. The probation officer entered a contract price between
Warburton and Bolar of $97,000. According to Warburton’s testimony, the contract price was
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Looking to the second step in the analysis, Bolar argues that the
sentence’s variance from the guidelines was substantively unreasonable. “A
non-Guideline sentence unreasonably fails to reflect the statutory sentencing
factors 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. Smith, 440 F.3d 704, 708 (5th Cir. 2006). This court
must “give due deference to the district court’s decision that the § 3553(a)
factors, as a whole, justify the extent of the variance.” Gall, 552 U.S. at 51.
The district court applied an upward variance from the recommended
guidelines range of 121 to 151 months, sentencing Bolar to a total of 204 months
in prison, three years of supervised release, $134,732 in restitution to the IRS,
$39,350 in restitution, and $1000 in special assessments. The district court
provided a lengthy explanation for the variance, noting the “gravity of the
multiple obstructions,” Bolar’s “persistent attempts to undermine and subvert
the investigative and judicial process,” and that his testimony was “replete with
blatant lies.” The court stated that Bolar’s “use of extortion . . . was blatant and
pervasive,” and emphasized the “immorality and depravity” of stealing from a
church and from his friends.
Bolar has not shown that his sentence fails to account for a particular
factor, gives significant weight to an irrelevant or improper factor, or represents
a clear error of judgment. Bolar engaged in an elaborate extortion and fraud
scheme. He stole from the community that elected him, from church members,
and from his friends who were in poor health. He convinced a friend to perjure
herself before the grand jury. Bolar fails to show that the district court plainly
in fact $92,500. That $4,500 difference affected the guidelines calculation. The appellant did
not raise that issue on appeal, though, and we are not obliged to raise it sua sponte. See
United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir 2000) (issues not briefed are waived).
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erred in imposing an upward variance from the recommended guidelines
sentence.
III.
The appellant has failed to show that the district court erred in denying
his Batson challenge, that the evidence was insufficient to support his
convictions, or that the sentence imposed was unreasonable in light of the
sentencing guidelines and § 3353 factors.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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