Government Discovery Abuses Earn Censure

US v. Bartko:  Gregory Barkto received several convictions in the Eastern District of North Carolina in connection with his participation in a securities fraud scheme. In this appeal, Bartko challenges the denial of two of his four motions for a new trial for Brady or Giglio violations, the district court’s decision to consider an ex parte sealed document, the district court’s decision not to instruct the jury on accomplice/informant testimony and multiple conspiracies, and the district court’s application of several sentencing enhancements based on the amount of loss at stake, the number of victims, and Bartko’s status as a registered broker/dealer at the time of the offenses.

While the Fourth Circuit affirmed Bartko’s convictions and his 272-month sentence, its opinion takes a turn against the government in its discussion of the motions for a new trial, dissecting the discovery practices of the Eastern District of North Carolina’s United States Attorney’s Office, focusing its scrutiny on their repeated "mistakes" in this and other cases. Here, the Fourth Circuit reviewed three alleged constitutional violations - two examples of withholding discoverable evidence, and one instance of leaving uncorrected a witness’s false testimony.

From Judge Floyd:
[O]ur confidence in the jury’s conviction of Bartko was not undermined by the government’s misconduct in this case. And such is the result in many cases. Remedies elude defendants because discovery violations ultimately prove immaterial to the verdict. But that is not the true problem. The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices "harmless" as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. "No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it." United States v. Lee, 106 U.S. 196, 220 (1882). The law of this country promises defendants due process, U.S. Const. amend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3., and fairness to opposing parties, see id. R. 3.4. Yet, the United States Attorney’s office in this district seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable. Something must be done...

What we know is that we are repeatedly confronted with charges of discovery abuse by this office. What we know is that our questions regarding this abuse remain unanswered. And what we know is that such conduct is unacceptable. Appropriate actions need to be taken to ensure that the serious errors detailed herein are not repeated. Whatever it takes, this behavior must stop.
Some of the other examples cited by the Fourth Circuit of discovery abuses include the sending of over 1,000 pages of discovery to a defendant in the week prior to trial, despite a court order to provide the discovery at least 14 days prior to trial, and in that same case, sending a fax to defense counsel without confirmation on the Saturday before trial started the following Monday; failing to disclose to a sexual predator that a victim would testify at the commitment hearing; and, failing to disclose potentially exculpatory grand jury testimony in a felon in possession case, despite requests for the production.

Finally, to ensure that these problems are addressed, the Fourth Circuit sent a copy to the Attorney General as well as the DOJ’s Office of Professional Responsibility. This may not be much consolation to Bartko, however, whose convictions and sentence were undisturbed.

NOTE: This case was decided on August 23, 2013.