Washington, D.C.’s federal appeals court has opened the door for a former lawyer now serving time for fraud to gain access to possible disciplinary records of prosecutors who tried his case, including one who’s now a partner at Kilpatrick Townsend & Stockton.
Ruling in a Freedom of Information Act suit, the U.S. Court of Appeals for the District of Columbia Circuit sided in part with Gregory Bartko, a former securities lawyer and investment manager convicted in 2010 on criminal fraud charges in a North Carolina federal court. The D.C. Circuit handed down its decision on Aug. 3.
Bartko had sought records from the U.S. Department of Justice’s Office of Professional Responsibility (OPR) about his case, and any information related to alleged misconduct on the part of Clay Wheeler, who led the prosecution of Bartko’s criminal case. In response, the OPR withheld a number of the documents that Bartko requested—including information on any allegations or investigations of prosecutorial misconduct—citing law enforcement and privacy interests.
Wheeler, who since 2011 has been a partner with Kilpatrick Townsend & Stockton’s government enforcement and investigations team in Raleigh and Winston-Salem, North Carolina, previously headed the economic crimes section of the U.S. Attorney’s Office for the Eastern District of North Carolina. Wheeler, who also serves as a senior lecturing fellow at the Duke University School of Law, didn’t immediately respond to a request for comment Tuesday.
In Friday’s ruling, the D.C. Circuit found that the OPR could not invoke a blanket “law enforcement” exemption as a justification for withholding documents from Bartko, and reached a similar conclusion with respect to the OPR’s privacy arguments.
“OPR argues that all of its Wheeler records qualify as law enforcement records just because of the slight chance that an inquiry could lead to an investigation that could lead to a misconduct finding that could result in a state bar referral that could lead to a bar sanctions hearing,” wrote Judge Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit for a three-judge panel. “That claim does not rise above the ephemeral.”
While the appeals court found in Bartko’s favor with respect to some categories of OPR documents, the D.C. Circuit also partly affirmed a summary judgment in the agency’s favor on documents that the OPR claimed were withheld because they dealt with the agency’s internal deliberation process.
Bartko’s FOIA suit, initially filed in July 2013, came after he was convicted of conspiracy, mail fraud and selling unregistered securities. A federal jury found Bartko guilty in 2010, and in 2012 he was sentenced to 272 months in prison—a little shy of 23 years. (Federal Bureau of Prisons records show that Bartko, 64, is serving time at a low-security facility in Florida but is not due to be released until November 2030.)
Reviewing the case, the U.S. Court of Appeals for the Fourth Circuit affirmed Bartko’s conviction, but not without issuing sharp criticisms of the federal prosecutors in charge of the case, including Wheeler.
The Fourth Circuit faulted Wheeler for failing to disclose deals that his office had struck with witnesses in Bartko’s criminal case, and for allowing one witness to testify falsely that he hadn’t received anything from the government in exchange for his testimony.
“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,” the Fourth Circuit wrote in an August 2013 ruling. “Something must be done.”
Although the Fourth Circuit ultimately upheld the conviction—concluding that there was an overwhelming amount of other evidence that would have led a jury to find Bartko guilty—it also went further. As Millett, a former appellate litigator at Akin Gump Strauss Hauer & Feld, wrote in the D.C. Circuit’s ruling Aug. 3, “The Fourth Circuit took the extraordinary step of referring the matter to [OPR] for further investigation of the allegations of professional misconduct.”
It does not appear that Wheeler or other prosecutors from the U.S. Attorney’s Office in North Carolina faced any disciplinary action within the Justice Department. According to the D.C. Circuit, the OPR might have undertaken an initial review, but ultimately concluded that it wasn’t worth further exploration since Wheeler had already left the U.S. Attorney’s Office in Raleigh by the time the Fourth Circuit ruled.
But following the Fourth Circuit’s critical opinion in Bartko’s criminal case, the prosecutor’s office in 2013 imposed changes to ensure that assistant U.S. attorneys fully comply with their discovery obligations, according to the D.C. Circuit.
Bartko represented himself in the appeal of his FOIA suit, but the court appointed a team from Morrison & Foerster to argue on his behalf as amicus participants. Associate Sophia Brill handled that argument, while MoFo’s U.S. Supreme Court and appellate practice co-chair Deanne Maynard and partner Brian Matsui were also involved.