United States' Sentencing Memorandum — United States v. Michael Eugene Bolte (D. Mont., Dkt. 33)

Summary

United States' Sentencing Memorandum, filed March 30, 2022 as Document 33, Case 1:21-cr-00046-SPW, United States of America v. Michael Eugene Bolte, District of Montana, Billings Division. The Government states that Bolte pled guilty on November 23, 2021, to the superseding information charging one count of Theft of Government Money, Property, or Records, in violation of 18 U.S.C. § 641, and that the presentence investigation report calculated an advisory guideline range of 6 to 12 months of incarceration. It recommends a sentence of three years of probation and a fine of $5,000, which it states technically constitutes a downward departure from the guideline sentence. It states that the loan balance is currently believed to be $76,928.16. It is signed /s/ Michael A. Kakuk, Assistant U.S. Attorney.

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       Case 1:21-cr-00046-SPW Document 33 Filed 03/30/22 Page 1 of 7



Michael A. Kakuk
Assistant U.S. Attorney
U.S. Attorney=s Office
901 Front Street, Suite 1100
Helena, MT 59626
Phone: (406) 457-5262
FAX: (406) 457-5130
Email: michael.kakuk@usdoj.gov

ATTORNEY FOR PLAINTIFF
UNITED STATES OF AMERICA

               IN THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MONTANA
                         BILLINGS DIVISION


 UNITED STATES OF AMERICA,                  CR 21-46-BLG-SPW

                   Plaintiff,

      vs.
                                            UNITED STATES’ SENTENCING
                                            MEMORANDUM
 MICHAEL EUGENE BOLTE,

                   Defendant.

                                INTRODUCTION

      Michael Bolte was originally indicted on one count of Wire Fraud, a

violation of 18 U.S.C. § 1343, and one count of Engaging in Monetary



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Transactions in Property Derived from Specified Unlawful Activity, a violation of

18 U.S.C. § 1957. Doc 2. On November 18, 2021, the United States filed a

superseding information charging Bolte with one count of Theft of Government

Money, Property, or Records, a violation of 18 U.S.C. § 641. Doc 21. Bolte pled

guilty to the superseding information on November 23, 2021. Doc 26.

      The only objection to the PSR was regarding restitution for his Economic

Impact Disaster Loan (EIDL). PSR Addendum. Bolte is correct that he has made

some payments on the loan, and that he should be credited for those payments. But

in addition, interest has accrued on the loan and that should also be taken into

account in the final restitution calculation. The United States Small Business

Administration (SBA) is preparing a certified record of the final balance of the

loan, which is currently believed to be $76,928.16. The United States will be

prepared to provide the Court with a final accounting of the EIDL at the sentencing

hearing on April 13, 2022.

      The presentence investigation report has calculated an advisory guideline

range of 6 to 12 months of incarceration, one year of supervised release, and a fine

range of $4,000 to $40,000. PSR ¶¶ 44, 47, 53, respectively. Bolte is eligible for

between one and five years of probation, which may include a period of home

detention, community confinement, or intermittent confinement. Id. at ¶¶ 49-50.


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Neither party objected to the guideline calculations. For the reasons set in full

below, the United States recommends a sentence of three years of probation and a

fine of $5,000, which technically constitutes a downward departure from the

guideline sentence.

                               LEGAL STANDARD

      Section 3553(a) of Title 18 of the United States Code contains the following

directive: “The court shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in paragraph (2) of this

subsection.” Those purposes include the need for the sentence to: (1) reflect the

seriousness of the offense; (2) promote respect for the law; (3) provide just

punishment for the offense; (4) afford adequate deterrence to criminal conduct; (5)

protect the public from further crimes of the defendant; and (6) provide the

defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2).

      The Court must also consider the nature and circumstances of the offense,

the history and characteristics of the defendant, the kinds of sentences available,

the sentencing guidelines and policy statements, unwarranted sentencing

disparities, and restitution to the victim. 18 U.S.C. § 3553(a)(1), (3)-(7).




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                                   ARGUMENT

      The United States believes that probation for three years is proper and

necessary under the six factors of 18 U.S.C. § 3553(a)(2). Further, a fine of $5,000

is within the guideline range, and is justified given Bolte’s offense and financial

situation. Each factor is addressed below.

      1.     Reflect the Seriousness of the Offense

      Bolte applied for and obtained an EIDL for his business, the Feedlot

Steakhouse and Razor Creek Saloon. PSR ¶ 9. The business was authorized to

receive an EIDL loan of up to $106,200. Id. However, instead of taking out that

money for his business, Bolte took out a loan for $74,800 to purchase classic cars

from an estate. PSR ¶ 10.

      This was not a victimless crime. The covid-19 pandemic was an

unprecedented global event, impacting our society in multiple ways, particularly

our economy. This pandemic led to an equally unique governmental response.

The United States government enacted the Coronavirus Aid, Relief, and Economic

Security (CARES) Act, which provided $2.2 trillion dollars in various forms of

economic relief to states, tribal governments, businesses, and individuals.

Unfortunately, much of that funding was syphoned off through fraud. The amount




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           Case 1:21-cr-00046-SPW Document 33 Filed 03/30/22 Page 5 of 7



of fraud on the various CARES Act programs is unknown, but is estimated to be

hundreds of billions of dollars.

      Bolte diverted funds from the EIDL program for his personal use, instead of

using them for the express purpose of helping his business. This was a serious

offense, but incarceration is not warranted given Bolte’s lack of criminal history,

his apparent intention to sell the classic cars and pay back the loan, and especially

that this is a misdemeanor offense. Probation, with a fine amount of double

Bolte’s monthly income (PSR ¶ 41), is appropriate for the seriousness of this

offense.

      2.       Promote Respect for the Law

      Bolte is a 70-year-old with little prior criminal history. PSR ¶¶ 24-29.

Given this, a term of probation and a fine of $5,000 is sufficient to promote his

respect for the law.

      3.       Provide Just Punishment for the Offense

      Again, Bolte’s restaurant qualified for the EIDL; the issue is that Bolte

obtained it under false pretenses and spent the funds on personal items. As such, it

does not appear that incarceration, or even home confinement, is necessary to

provide a just and proper punishment here. A fine of twice Bolte’s monthly

income is sufficient punishment for Bolte.


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      4.     Offer Adequate Deterrence to Criminal Conduct

      Similarly, for the reasons discussed above, it is unlikely that incarceration is

necessary to deter Bolte from future similar conduct. Probation for three years will

provide the adequate time and attention to Bolte to monitor payment of his fine and

restitution, and to deter any future criminal conduct.

      5.     Protect the Public from Further Crimes of the Defendant

      This factor is not at issue here. There is no indication that the public needs

to be protected from Bolte, thus this factor also weighs in favor of probation and

not incarceration.

      6.     Provide the Defendant with Needed Training, Care, or Treatment

      The United States does not believe that Bolte needs any specific training,

care, or treatment.

                                  CONCLUSION

      Three years’ probation and a fine of $5,000 is appropriate for Bolte.

      DATED this 30th day of March 2022.

                                       LEIF JOHNSON
                                       United States Attorney

                                       /s/ Michael A. Kakuk
                                       Assistant U.S. Attorney
                                       Attorney for Plaintiff


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                     CERTIFICATE OF COMPLIANCE

      Pursuant to D. Mont. LR 7.1(d)(2) and CR 47.2, the foregoing document is

proportionately spaced, has a typeface of 14 points or more, and the body contains

998 words.

                                      /s/ Michael A. Kakuk
                                      Assistant U.S. Attorney
                                      Attorney for Plaintiff


                         CERTIFICATE OF SERVICE

      I hereby certify that on the 30th day of March 2022, a copy of the foregoing

document was served on the following persons by the following means.

       1-2 CM/ECF
           Hand Delivery
           U.S. Mail
           Overnight Delivery Service
           Fax
           E-Mail

1. Clerk of Court

2. Gillian E. Gosch
   Attorney for Defendant


                                      /s/ Michael A. Kakuk
                                      Assistant U.S. Attorney
                                      Attorney for Plaintiff


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