August 23, 2013 4th Circuit published opinion

United States v Bartko

Bartko was convicted of fraud and other crimes arising from a security fraud scheme. The trial court denied his motions for new trial. It also refused to give certain jury instructions and applied certain sentencing enhancements. The panel affirmed. It held that while the government did fail to disclose certain documents which would have been helpful to impeach witnesses, there was no prejudice as two of the violations involved a witness thoroughly impeached with incentives to lie, participation in multiple frauds and a general reputation for dishonesty while the other involved testimony corroborated by Bartko’s admissions. However, because this case was the latest in a string of discovery violations form the same US Attorney’s office and the 4th Circuit’s questions about why those violations occurred were unanswered, the panel called upon the district court to meet with the US Attorney’s office and discuss ways for the office to obey its constitutionally mandated discovery obligations. It further ordered the opinion sent to the Department of justice and threatened sanctions in future cases if the problems are not resolved. The panel affirmed as to the  jury instructions as the coconspirator testimony instruction was substantially covered by the jury charge given and there was evidence the jury could believe proved one conspiracy thus the multiple conspiracy instruction was not required. Finally, the panel affirmed the sentencing enhancements as funds were nto returned before the government became aware of the fraud, the proceeds of the fraud were comingled and thus over fifty people lost some of their money and Bartko was a licensed security broker when he violate securities laws.

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