HATTIESBURG, MS (WDAM) - The government filed a motion Tuesday in response to the testimony of a Hub City attorney in the federal case of Forrest County Chief Deputy Charles Bolton and his wife, Linda.
According to the motion, the United States submitted its reply to respond to Charles Bolton's arguments that admission of John Lee's business records violate the confrontation clause and that it must detail John Lee's Fifth Amendment claim of privilege.
"The government has spoken with defense counsel for John Lee and has been informed that Mr. Lee is extremely ill, as a result he probably cannot appear, and in any event would assert his Fifth Amendment privilege not to testify if he did appear," said Kenneth Allen Polite, Jr. in the motion.
The government claims the files are business records and are exempt from the Confrontation Clause.
The "Confrontation Clause" is listed as: The Confrontation evidence of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."
"The Lee, P.A. records at issue do not violate the confrontation clause, should be admitted after the government establishes a foundation that they are business records under the hearsay exception under the Federal Rules of Evidence," said Polite in the motion. "Further, the government is unaware of any authority compelling the government to explain the details of Lee's claim of privilege."
"The cases Charles Bolton cites do not change this rule as they deal with documents that are testimonial in nature, distinguishable from the financial records that Lee, P.A. kept in the ordinary course of business," according to Polite in the motion.
Multiple cases cited through the court filing are all distinguishable from the facts presents in the current case according to federal prosecutors.
"In those cases, the government either failed to lay a proper foundation for the records, or the records were testimonial because they were prepared for the purpose of proving a fact at trial," Polite said.
The motion details the difference from those in question to the financial records involved in the current case.
"The Lee, P.A. financial journals and the check ledgers, as well as the Lee, P.A. checks were created to maintain the financial and administrative order of the Lee, P.A. business," Polite said. "The government will lay a foundation that the Lee, P.A. records are records kept within the course of regularly conducted business activity of the Lee firm."
The government detailed that the business records will be presented through a witness who has personal knowledge of the records and that they are kept in order to maintain accurate financial records for the firm.
"The testimony will establish that the records were not prepared in anticipation of trial, but to administer the law firm's business affairs," said Polite in the motion. "This purpose keeps the Lee, P.A. records from violating the confrontation clause, because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial."
According to the filing, "Charles and Linda cite no authorities justifying their request that the government explain the exact charges that John Lee may face which would result in his ability to claim a valid privilege."
Lee has been served a trial subpoena, and his attorney has said he will invoke his Fifth Amendment privilege against self-incrimination to prevent himself from testifying at the Boltons' trial.
"The government has no objection to having Lee testify – in camera and outside the presence of the jury—to formally claim this privilege," according to Polite. "However, it has found no authority, and the defendants cite to none, which would require Lee or the government to explain in detail how his testimony would incriminate him."
The filing details Lee's duties in the trial if he were to testify:
"The witness need only "describe in general terms the basis of the liability actually feared. He must give a description that is at least adequate to allow the trial judge to determine whether the fear of incrimination is reasonable and, if reasonable, how far the valid privilege extends." A record can be made that is separate from the record kept of the proceedings in the courtroom, and "the record could be sealed and opened only for appellate review, if necessary."