United States v. James Bolt

United States Court of Appeals
For the Eighth Circuit
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No. 14-2621
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Bolt
lllllllllllllllllllll Defendant - Appellant
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No. 14-2623
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James Bolt
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: January 12, 2015
Filed: April 3, 2015
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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MURPHY, Circuit Judge.
James Bolt pled guilty to mail fraud, wire fraud, and money laundering after
identifying and claiming large amounts of unclaimed property held by the state of
California. The district court1 sentenced Bolt to 100 months after applying an
enhancement for the use of sophisticated means and concluding that an upward
departure was warranted based on the inadequacy of his criminal history category
under the guidelines. Bolt appeals, and we affirm.
In August 2012 FBI agents began an investigation into various frauds
committed by Bolt. The state of California posts information about unclaimed
property on a public website, and Bolt made claims in 2011 and 2012 on unclaimed
property in the state's custody. The claims were made in the name of Situs Cancer
Research Center (Situs), a company which Bolt controlled.
Bolt was involved in four fraudulent schemes in the state of California. In each
scheme Bolt created fraudulent donation agreements which purported to transfer the
unclaimed assets from their lawful owners to Situs. In some instances Bolt created
fictitious employees of the companies and signed their names; in others he forged the
signatures of actual people. He also fabricated notary stamps and signed the
agreements in the names of two different notaries: "T. Dashwood," an actual notary
public whose notary term had expired years earlier, and "Mary J. Marquez."
Subsequent investigation revealed no record of a Mary Marquez as a California
notary, and the fact that the notary number Bolt attributed to Marquez had been issued
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The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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to another notary who never activated it. Bolt used interstate mail and wire systems
to transmit the fraudulent documents to California. After receiving the fraudulent
documents, the state transferred the unclaimed assets to Situs. These funds totaled
approximately $2,400,000. Bolt later made purchases of cars and real estate with
funds from the Situs bank account.
In another scheme, Situs acquired unclaimed funds from a trust account held
by the state of Nevada which contained a woman's life savings. That was
accomplished by a fraudulent donation document which transferred the trust over to
Situs; the documents were signed on behalf of Situs by its purported chief financial
officer "Leah Cleveland." Subsequent investigations were unable to locate Leah
Cleveland or otherwise confirm her existence. The fraudulent donation agreement
was notarized by "Barbara Smith," a real notary public in the state of Arkansas, who
later stated to authorities that she had not signed or notarized the document and does
not own the notary stamp used. Situs received $108,251.78 from his Nevada scheme.
Bolt was charged and pled guilty to one count of wire fraud in violation of 18
U.S.C. § 1343, one count of mail fraud in violation of 18 U.S.C. § 1341, and one
count of money laundering in violation of 18 U.S.C. § 1957. In the plea agreement
the government agreed to recommend a sentence within the guideline range
determined by the district court. The parties did not agree on whether the loss amount
exceeded $2.5 million.
A presentence report (PSR) was prepared, which calculated an offense level of
25. This level was based on a loss amount exceeding $2.5 million, including the loss
amounts from the four California frauds to which he had pled guilty and that from the
uncharged Nevada fraud scheme. The PSR also included a two level enhancement for
the use of sophisticated means and calculated a criminal history category of I due to
the time elapsed after Bolt's numerous prior convictions. These included 1982
convictions for mail fraud and making false statements in a loan application, 1984
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convictions for multiple counts of mail fraud and making false statements, and a 1992
conviction for theft by deception. The PSR also pointed out that Bolt had returned to
prison for a parole violation and had been arrested between 1973 and 2006 on a
variety of charges including wire fraud, impersonating a police officer, mail fraud,
uttering bogus checks, and passing a forged instrument.
After reviewing the PSR, the district court notified the parties prior to
sentencing that it would consider whether an upward departure under the sentencing
guidelines would be appropriate in Bolt's case. The court cited Bolt's "extraordinarily
lengthy criminal history, going back more than 40 years" and observed that his
multiple convictions did not count towards the criminal history guideline calculation
because they were imposed over 15 years earlier. Bolt was "highly likely to
recidivate," given that he had not been deterred by previous arrests and imprisonment.
On June 24, 2014 the district court sentenced Bolt to 100 months. It found by
a preponderance of the evidence that the loss amount from his conduct exceeded $2.5
million based on his Nevada scheme using the fictional identity of Leah Cleveland.
Noting that the various schemes were difficult to follow, in part because Bolt had
created various corporate aliases for Situs, the district court applied a two level
increase for using sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C). The district
court also determined that an upward departure was warranted under § 4A1.3, based
on the inadequacy of his criminal history category in light of his offenses. With a
newly calculated criminal history category of V, his resulting guideline range was 100
to 125 months.
Bolt now appeals his sentence, raising three issues. First, he contends that the
loss amount was improperly calculated. He claims that the losses from his Nevada
scheme should not have been included. A district court calculates a loss amount based
on the preponderance of the evidence, and we review that calculation for clear error.
United States v. Boesen, 541 F.3d 838, 850 (8th Cir. 2008). Under the sentencing
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guidelines, relevant conduct may be considered including acts and omissions that
"were part of the same course of conduct or common scheme or plan as the offense
of conviction." U.S.S.G. § 1B1.3(a)(2). Factors to use in determining whether any
activity is part of the same "course of conduct" include "the degree of similarity of the
offenses, the regularity (repetitions) of the offenses, and the time interval between the
offenses." Id. at § 1B1.3, comment. (n.9(B)).
We conclude the district court did not clearly err in holding Bolt responsible for
the losses associated with his Nevada scheme which followed the same pattern as in
the California offenses to which Bolt pled guilty. All involved the transfer of
unclaimed property held by the state by means of a falsified donation agreement with
a forged notary signature. The funds were transferred to the same Situs bank account.
The sole difference is that some of the documents were signed on behalf of Situs by
a "Leah Cleveland" rather than by Bolt; the district court made a finding that
Cleveland was only a fabricated name. The losses were correctly calculated.
Bolt also challenges the two point enhancement under U.S.S.G. § 2B1.1(b)(10)
for the use of sophisticated means. That enhancement is applied for "especially
complex or especially intricate offense conduct pertaining to the execution or
concealment of an offense." Id. at § 2B1.1, comment. (n.9(B)). We review de novo
the district court's application of the guidelines to the facts. United States v. Hance,
501 F.3d 900, 909 (8th Cir. 2007). Bolt argues his offense was not particularly
complex as he did not conceal his involvement in the schemes. He claims he merely
committed a garden variety mail fraud for which the enhancement does not apply. See
id. at 909–10.
We conclude that the district court did not err in applying the sophisticated
means sentencing enhancement. In carrying out these frauds, Bolt prepared numerous
fraudulent donation agreements. For the different frauds he signed on behalf of many
distinct identities—some of whom were fictional and some of whom were names of
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actual employees. Bolt also created false notary stamps using the names of three
different notaries; two of these were actual notaries. The third involved a numbered
notary identification which Bolt had discovered and adopted. While Bolt argues he
did not have enough sophistication to conceal his own involvement in the schemes,
he did create a fictional employee to sign on behalf of Situs as part of his Nevada
scheme. Finally, Bolt concealed the scheme by creating different aliases for Situs,
thereby distinguishing one fraudulent scheme from another.
Bolt objects to the district court's decision to depart upwards based on the
inadequacy of his criminal history category. The guidelines permit an upward
departure when reliable information indicates that the calculated criminal history
category substantially underrepresents the seriousness of a defendant's criminal
history. U.S.S.G. § 4A1.3(a)(1). We review the district court's decision to depart
under this section for abuse of discretion. United States v. Jones, 596 F.3d 881, 883
(8th Cir. 2010). The type of reliable information relevant in considering such a
departure includes prior sentences not used in computing the criminal history
category, § 4A1.3(a)(2)(A), prior sentences of substantially more than one year
resulting from "independent crimes committed on different occasions,"
§ 4A1.3(a)(2)(B), as well as prior similar adult criminal acts which did not result in
a conviction, § 4A1.3(a)(2)(E).
We conclude that the district court did not abuse its discretion in departing
upwards. As the court noted, Bolt had multiple convictions and arrests dating from
1973 but was not deterred from recidivating. Bolt argues the district court erred in
increasing his criminal history category to V because his three prior convictions would
only have yielded a criminal history category of IV had they been counted. The
district court properly considered not just Bolt's prior convictions, however, but also
his numerous arrests for similar criminal conduct. Some of these arrests were for
charges of wire fraud and mail fraud—two of the offenses to which Bolt pled guilty
in this case. The guideline provision for upward departures specifically authorizes
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consideration of similar criminal conduct which has not resulted in conviction,
§ 4A1.3(a)(2)(E). We conclude the district court acted within its discretion by
increasing his criminal history category to V based on criminal conduct which did not
lead to convictions. See United States v. Yahnke, 395 F.3d 823, 826 (8th Cir. 2005).
We conclude that the district court did not err by holding Bolt responsible for
the losses generated by his Nevada fraud scheme, by applying a sophisticated means
enhancement, or by departing upwards based on the inadequacy of his criminal history
category. The judgment of the district court is affirmed.
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