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Bartko v. United States Department of Justic

United States Court of Appeals, District of Columbia Circuit

August 3, 2018

Gregory Bartko, Appellant
United States Department of Justice, et al., Appellees

          Argued May 7, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01135)

          Sophia M. Brill, appointed by the court, argued the cause as amicus curiae in support of appellant. With her on the briefs were Brian M. Matsui and Deanne E. Maynard.

          Gregory Bartko, pro se, filed the briefs for appellant.

          Joshua M. Kolsky, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Alessio Evangelista, Principal Assistant U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

          Before: Griffith, Millett, and Pillard, Circuit Judges.



         "Whatever it takes, this behavior must stop." So ordered the United States Court of Appeals for the Fourth Circuit in United States v. Bartko, when it was confronted with "repeat offense[s]" of prosecutorial misbehavior and discovery improprieties by the United States Attorney's Office for the Eastern District of North Carolina, including by Clay Wheeler, a high-level prosecutor in Gregory Bartko's case. 728 F.3d 327, 343, 341 (4th Cir. 2013). Concluding that the frequent recurrence of prosecutorial missteps in that office "raise[d] questions regarding whether the errors are fairly characterized as unintentional," the Fourth Circuit took the extraordinary step of referring the matter to the United States Department of Justice's Office of Professional Responsibility ("OPR") for further investigation of the allegations of professional misconduct. Id. at 342-343.

         After Bartko was convicted in a case beset by prosecutorial misfeasance, he filed multiple Freedom of Information Act ("FOIA") requests with OPR and other relevant agencies seeking to learn the results of investigations into Wheeler. See 5 U.S.C. § 552 et seq. OPR categorically refused to acknowledge the existence of, let alone disclose, any potentially relevant documents outside of Bartko's individual case. And even with respect to Wheeler's conduct in Bartko's case, OPR held back substantial amounts of material, asserting a sweeping breadth for its claimed exemptions. Because circuit precedent foreclosed OPR's approach, and because OPR failed to justify multiple withholdings, we reverse the district court's judgment in favor of OPR with respect to its invocations of Exemption 7(C), and the district court's decision to deny a fee waiver to Bartko. We also remand with instructions for the district court to reconsider its decision with respect to the FBI's withholding of records pursuant to Exemption 3 in light of recent circuit precedent. On all other matters, we affirm the district court's entry of summary judgment in favor of the defendant agencies.



         The events giving rise to this appeal stem from a criminal prosecution in a district not too far from here. Gregory Bartko was an Atlanta-based securities lawyer, investment banker, and broker. In the early 2000s, he created and managed two private equity funds, the Caledonian Fund and the Capstone Fund. Over the next half-decade, Bartko fleeced investors out of more than a million dollars under the false pretense that their investments were fully insured with a guaranteed return. Bartko's luck ran out when the Securities and Exchange Commission caught wind of the scam and began to examine the Caledonian and Capstone Funds. The ensuing investigation resulted in a criminal prosecution by the U.S. Attorney's Office for the Eastern District of North Carolina. The then-Chief of the Economic Crimes Section, Assistant U.S. Attorney Clay Wheeler, prosecuted Bartko for (i) conspiracy to commit mail fraud and to engage in unlawful monetary transactions in violation of 18 U.S.C. § 371; (ii) mail fraud in violation of 18 U.S.C. §§ 1341 and 1342; and (iii) the sale of unregistered securities in violation of 15 U.S.C. §§ 77e, 77x, and 18 U.S.C. § 2. After a thirteen-day trial, a jury convicted Bartko on all counts. In 2010, Bartko was sentenced to 272 months of imprisonment. See Bartko, 728 F.3d at 331, 334; see also Gregory Bartko v. SEC, 845 F.3d 1217, 1221 (D.C. Cir. 2017) (describing Bartko's criminal activities).

         Months after the jury announced its verdict, Bartko discovered that Wheeler had made multiple, serious prosecutorial missteps in the case. Specifically, Wheeler failed to disclose significant impeachment evidence-deals that the government had struck with witnesses in advance of their testimony. See Giglio v. United States, 405 U.S. 150, 155 (1972); see also Brady v. Maryland, 373 U.S. 83, 87 (1963). In addition, the prosecution allowed a government witness (Bartko's co-conspirator) to testify falsely that he had not received any inducement from the government in exchange for his testimony, even though the government actually had made promises to him. See Napue v. Illinois, 360 U.S. 264, 270 (1959); see generally Bartko, 728 F.3d at 337-341.

         In light of those developments, Bartko moved for a new trial claiming violations of his due process rights under the Fifth Amendment. The district court denied Bartko's motion. The Fourth Circuit affirmed on the narrow ground that the undisclosed evidence and witness testimony was cumulative of the overwhelming untainted evidence, and so the governmental missteps would not have affected the final outcome of the trial. See Bartko, 728 F.3d at 331-332, 337.

         But the court of appeals did not end its decision there. Pointing to a slew of disturbing recent cases, the court specifically noted the "frequency of [discovery] 'flubs' committed" by the U.S. Attorney's Office for the Eastern District of North Carolina, which "raise[d] questions regarding whether the errors [we]re fairly characterized as unintentional." Bartko, 728 F.3d at 341. With respect to Bartko's case in particular, the court expressed deep skepticism about counsel's "farfetched assertion" when asked about the misbehavior. Id. at 342.

         The court also worried that "[r]emedies elude" individual defendants because egregious violations "ultimately prove immaterial to the verdict." Bartko, 728 F.3d at 342. The frequent affirmance of criminal convictions on that basis, the court explained, causes the government to believe that it can withhold with impunity material that it is constitutionally required to disclose. Just because "such practices [may be] 'harmless' as to a specific defendant's verdict," the court continued, "they are anything but harmless" for "litigants in the Eastern District of North Carolina and our justice system at large[.]" Id.

         Concluding that the U.S. Attorney's Office "is uninterested in placating concerns" and "seems unfazed by the fact that discovery abuses violate constitutional guarantees and misrepresentations erode faith that justice is achievable[, ]" the court declared that "[s]omething must be done." Bartko, 728 F.3d at 342. "To underscore [its] seriousness about this matter," the Fourth Circuit ordered the Clerk of Court to "serve a copy of [its] opinion upon the Attorney General of the United States and the Office of Professional Responsibility[, ]" which handles allegations of misbehavior by Justice Department attorneys. Id.

         Faced with that sharp censure, the U.S. Attorney's Office responded by petitioning the court for rehearing, specifically requesting that the court "reconsider its suggestion that discovery errors in our office are intentional [and] that [Assistant U.S. Attorney Wheeler] intentionally ignored false testimony." Gov't's Pet. for Reh'g 2, Docket No. 12-4298, ECF No. 105. In its filing, the U.S. Attorney's Office "admit[ted]" to "some discovery failures on [its] part," id. at 3, and informed the court that it was instituting changes to its "[d]iscovery [p]ractices in [r]esponse to the [c]ourt's [c]oncerns," id. at 4. Specifically, the U.S. Attorney's Office announced that, effective August 1, 2013, Assistant U.S. Attorneys must:

(1) personally review the files of each investigative agency involved with the investigation (rather than relying upon the agency's response to [the Office's] requests for discoverable material), and
(2) meet with their supervisor to discuss this review and all potential discovery issues in the case.

Id. The U.S. Attorney's Office also "created new systems, protocols, and rules to comply with [its] reformulated discovery practices." Id. at 5. The Fourth Circuit denied the U.S. Attorney's Office's rehearing petition.


         "The FOIA was enacted to ensure public access to a wide range of government reports and information." Rural Housing Alliance v. United States Dep't of Agriculture, 498 F.2d 73, 76 (D.C. Cir. 1974). It "was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Citizens for Responsibility & Ethics in Washington ("CREW") v. Department of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014) (quotation marks omitted).

         While transparency and government accountability are at the heart of FOIA's mandate, Congress exempted certain categories of records from disclosure to protect important governmental and private interests in confidentiality. As relevant here, FOIA allows the government to withhold from disclosure information "compiled for law enforcement purposes * * * [that] could reasonably be expected to constitute an unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(7)(C), or that is "specifically exempted from disclosure by [another] statute[, ]" id. § 552(b)(3), such as material presented to a grand jury, Fed. R. Crim. P. 6(e). FOIA Exemption 6 separately shields "personnel and medical files and similar files" when their disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The agency bears the burden of proving that an exemption applies. CREW, 746 F.3d at 1088.

         Even when an exemption applies, the agency is obligated to disclose "[a]ny reasonably segregable portion of a record" after removing the exempt material and must note the "amount of information deleted, and the exemption under which the deletion is made." 5 U.S.C. § 552(b).

         An agency is permitted to charge a requester "reasonable" document search and duplication fees, 5 U.S.C. § 552(a)(4)(A)(ii)(III), but such fees will be waived or reduced if "disclosure of the information is in the public interest," id. § 552(a)(4)(A)(iii). The public-interest fee waiver requires that the released information be "likely to contribute significantly to public understanding" of government activities and not be "primarily in the commercial interest of the requester." Id.


         Between 2012 and 2013, Bartko submitted FOIA requests to OPR, the U.S. Postal Inspection Service, the Internal Revenue Service, the Federal Bureau of Investigation, the Department of Justice's Executive Office for U.S. Attorneys, the Department of Treasury, and the Securities and Exchange Commission. His requests sought government documents concerning both his case and any other records OPR might possess regarding allegations of prosecutorial misconduct by Wheeler.

         Of relevance here, in January 2013, Bartko submitted a FOIA request to OPR seeking:

1. Any and all records created by and/or received by [OPR] in regard to [AUSA] Clay C. Wheeler, * * * which relate to or concern violations or alleged violations by AUSA Wheeler of Section 9.500 et seq. of the United States Attorneys' Manual adopted by the Department of Justice; or the "Ogden Memorandum" * * * or any ethical duties imposed upon AUSA Wheeler in his capacity as a government prosecutor as set forth in the North Carolina Code of Professional Conduct * * *.
2. Any and all records in regards to complaints or allegations made against AUSA Wheeler with regards to prosecutorial misconduct before any grand jury, during any criminal trial or investigation prior to trial, which involved the withholding and concealing of exculpatory evidence and/or the presentation of false or misleading evidence during trial.
3. Any and all records maintained by OPR concerning AUSA Wheeler's supervision as an employee of the Department of Justice, which reflect allegations of attorney misconduct involving violations of any standard imposed by law, applicable rules, professional conduct or Department of Justice policy.

J.A. 209-210.

         In response, OPR agreed only to release documents regarding a matter for which Bartko was the complainant (seven documents in total). As to everything else, OPR categorically refused to even confirm or deny the existence of relevant records-a type of answer to a FOIA request known as a "Glomar" response. See Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976).[1]

         Dissatisfied with OPR's blanket refusal and the other agencies' responses, Bartko filed suit in the U.S. District Court for the District of Columbia in July 2013. The district court required the agency to search for records regarding Wheeler's missteps in Bartko's case but otherwise accepted OPR's categorical refusal to respond. See Bartko v. Department of Justice, 62 F.Supp.3d 134, 143-144 (D.D.C. 2014). After conducting a narrowly tailored search, OPR invoked a host of exemptions to partially or fully withhold documents from Bartko. The district court approved those withholdings. See Bartko v. Department of Justice, 128 F.Supp.3d 62, 72-73 (D.D.C. 2015).

         After years of back-and-forth between the parties and the court that resulted in a substantial amount of additional material being released to Bartko by OPR and the other defendant agencies, the district court granted summary judgment in favor of the defendants. Bartko appealed pro se, and this court appointed an amicus curiae to present arguments on his behalf.[2]


         This Court reviews a district court's grant of summary judgment de novo. Clemente v. FBI, 867 F.3d 111, 116, 119 (D.C. Cir. 2017). Fee waiver denials are likewise reviewed de novo. Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1311 (D.C. Cir. 2003).

         Upon review of the record before us, we reverse the district court's grant of summary judgment in favor of OPR on its application of Exemption 7(C) and, in light of intervening circuit precedent, we remand the issue of whether the FBI's application of Exemption 3 was properly justified. We also reverse the district court's denial of a fee waiver because Bartko has successfully shown that the disclosure of the requested material would be in the ...

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