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Fourth Circuit to United States Attorney for EDNC: Stop Abusing Discovery Rules

In a remarkable decision handed down last week by the Fourth Circuit in U.S. v. Bartko (PDF available) (Aug. 23, 2013, No. 12-4298), circuit judges Floyd, Keenan and Hudson admonished the United States Attorney’s Office for the Eastern District of North Carolina for repeated discovery abuses, and ordered that its opinion setting forth its displeasure at the federal prosecutors for the Eastern District be sent directly to Attorney General Holder and the Office of Professional Responsibility

The opinion is remarkable for what it does and does not do. First, what it does not do: the opinion does not grant Bartko, a securities attorney convicted of fraud and sentenced to nearly 20 years in prison, a new trial. That’s because, even though the government failed to abide by Brady (which holds that defendants are entitled to exculpatory material in the government’s possession), the case law also upholds a conviction unless the discovery violations would “undermine the confidence in the outcome of the trial.”

In Bartko’s case, as is true in many cases that go to trial in the federal system, the government has overwhelming evidence of the defendant’s guilt. So government discovery abuses are often overlooked as having not been significant enough to have changed the outcome.

This is the problem with the basic discovery rules in the federal system. Prosecutors get to decide what is exculpatory; exculpatory material is sometimes never made available to the defense; the defense does not know what it does not know; and if the defense should find out, courts frequently find harmless error or hold that the overwhelming evidence of guilt outweighs any harm.

Second, let’s look at the remarkable language in the opinion. I’ll quote it verbatim, because if I were to utter this myself, I might be accused of hyperbole. Remember this is the usually very staid and restrained Fourth Circuit talking here:

Having analyzed the Brady and Giglio issues that Bartko raises, we pause here to address the discovery practices of the United States Attorney’s office in the Eastern District of North Carolina. A cursory review of this Court’s opinions reveals recent consideration of at least three cases involving discovery abuse by government counsel in this district. See, e.g., United States v. Flores-Duran, No. 11-5167, 2013 WL 3286248, (4th Cir. July 1, 2013) (noting that “[d]uring the week prior to trial,… the [g]overnment sent over one thousand pages of additional discovery, the bulk of which was due no later than fourteen days prior to trial” and that the government argued its “discovery violation” was excusable because it “misread[]… the discovery order; a power outage [occurred] at the courthouse in Raleigh; and [it made a] last minute decision to present certain evidence” and that on the Saturday immediately prior to the Monday on which trial was to begin, the government faxed key information obtained approximately twenty-four hours earlier hours earlier to defense counsel’s office, but it did nothing to ensure that counsel received the fax, even though it sent the information outside of normal business hours); United States v. Burkhardt, 484 F. App’x 801, 802 (4th Cir. 2012) (considering a defendant’s appeal of his civil commitment as a sexually dangerous person and citing as a “matter of concern” the government’s failure to disclose prior to the commitment hearing that one of the defendant’s victims would testify); United States v. King, 628 F.3d 693, 701-04 (4th Cir. 2011) (vacating and remanding the defendant’s conviction for felony possession of a firearm because the government “specifically rebuffed both… written and oral demands [by the defendant] that it disclose” potentially exculpating grand jury testimony and “refused to disclose” the testimony, even after the district court “suggest[ed] that it do so”). And this case, which confronts us with three alleged constitutional violations — two instances of withholding discoverable evidence and one choice to leave uncorrected a witness’s false testimony — only adds to the list.

Mistakes happen. Flawless trials are desirable but rarely attainable. Nevertheless, the frequency of the “flubs” committed by this office raises questions regarding whether the errors are fairly characterized as unintentional. Cf. Oral Argument at 24:50-25:10, Flores-Duran, 2013 WL 3286248 (No. 11-5167), available at (referencing the government’s late disclosure of pages of discovery in violation of the judge’s discovery order and stating, “This is a repeat offense by the government. The order is entered by the court requiring disclosure by a certain date, and the government simply ignores it. And their explanation for ignoring it is, ‘I missed it. So what. There’s no prejudice.’ And it just happens again and again.”). Moreover, the government’s responses to queries regarding its practices are less than satisfactory. For example, in this case, when asked at oral argument about its failure to correct Scott Hollenbeck’s testimonial misstatement regarding promises he had received, the government suggested that at the time Hollenbeck made the misstatement, trial counsel had no recollection of the promises made to him. But as Judge Keenan aptly noted, such an idea “just strains credulity.” Oral Argument at 21:54-21:56, United States v. Bartko (No. 12-4298). Similarly artless responses have been given in other cases. See, e.g., Oral Argument at 11:20-14:30, Flores-Duran, 2013 WL 3286248 (No. 11-5167). And here, when we gave counsel an opportunity to correct her farfetched assertion, she refused. Faced with such behavior, we must conclude that this office is uninterested in placating concerns about its practices.

As detailed above, our 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.

We urge the district court in the Eastern District of North Carolina to meet with the United States Attorney’s Office of that district to discuss improvement of its discovery procedures so as to prevent the abuses we have referenced here. Moreover, if this sort of behavior continues in subsequent cases, this Court may wish to require that the United States Attorney for the Eastern District of North Carolina, as well as the trial prosecutor, be present at oral argument so that the panel can speak directly to her or him about any alleged misconduct. Sanctions or disciplinary action are also options.

To underscore our seriousness about this matter, and to ensure that the problems are addressed, we direct the Clerk of Court to serve a copy of this opinion upon the Attorney General of the United States and the Office of Professional Responsibility for the Department of Justice. The transmittal letter should call attention to this section of the opinion.

We do not mean to be unduly harsh here. But “there comes a point where this Court should not be ignorant as judges of what we know as men [and women].” Rumsfeld v. Padilla, 542 U.S. 426, 465 n.10 (2004) (Stevens, J., dissenting) (quoting Watts v. Indiana, 338 U.S. 49, 52 (1949)). 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.

I probably don’t need to say more. Oh, Bartko remains in prison, in spite of the government’s abuses. So there’s that.



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