Bartko v. Wheeler

• Decision Date: 03 January 2014
• Docket Number: 1:13CV1006
• Court: U.S. District Court — Middle District of North Carolina
• Parties: GREGORY BARTKO, Plaintiff, v. CLAY CAMPBELL WHEELER, et al., Defendants.

GREGORY BARTKO, Plaintiff, v. CLAY CAMPBELL WHEELER, et al., Defendants.

1:13CV1006

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

January 3, 2013

MEMORANDUM OPINION AND ORDER

This case comes before the Court for review of venue after receipt of Plaintiff's Memorandum in Support of Choice of Venue (Docket Entry 5). For the reasons that follow, this case will be transferred to the United States District Court for the Eastern District of North Carolina under 28 U.S.C. § 1406(a).¹

BACKGROUND

A jury in the United States District Court for the Eastern District of North Carolina found Plaintiff guilty of various fraud-related federal offenses and, as a result, he received a prison sentence of 272 months. See United States v. Bartko, 728 F.3d 327, 331 (4th Cir. 2013). At the time of the offense conduct, Plaintiff "was a securities attorney, investment banker, and registered broker/dealer." Id. at 332. Plaintiff appealed his convictions, but the United States Court of Appeals for the Fourth Circuit affirmed. See id. at 331-32. In so doing, however, the Fourth Circuit criticized "the discovery practices of the United States Attorney's Office in the Eastern District of North Carolina." Id. at 341; see also id. at 343 ("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.").

Plaintiff thereafter commenced this case in this Court by filing pro se an Application to Proceed In Forma Pauperis (Docket Entry 1) and a Complaint (Docket Entry 2). According to the Complaint, Plaintiff "brings this civil action, not to collaterally attack his conviction[s] by asserting that his constitutional rights were violated, but to recover damages, and obtain other equitable relief, proximately caused by [] Defendants' obstruction of justice contrary to the common law of the state of North Carolina." Id. at 1-2. The Complaint identifies as Defendants: 1) Clay Wheeler, a former Assistant United States Attorney in the Eastern District of North Carolina (id., ¶ 4); 2) George Holding, a former United States Attorney for the Eastern District of North Carolina (id., ¶ 5); 3) Thomas Walker, the current United States Attorney for the Eastern District of North Carolina (id.); and 4) Scott Hollenbeck, "a former client of [Plaintiff's] law firm [who] was called as a key government witness to testify at [Plaintiff's] criminal trial" (id., ¶ 6).

It purports to state four claims: 1) "Common Law Obstruction of Justice Against Wheeler" (id., ¶¶ 31-50); 2) "Obstruction of Justice Against Holding and Walker" (id., ¶¶ 51-61); 3) "Civil Conspiracy to Obstruct Justice Against All Defendants" (id., ¶¶ 62-74); and 4) Declaratory Judgment for Obstruction of Justice (id., ¶¶ 75-78). The Complaint further asserts that "[t]his Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.[§] 1332 as there is complete diversity of citizenship between [] Plaintiff and [] Defendants . . . [and Plaintiff] seeks monetary damages in this action for his personal and property losses that exceeds [sic] $1,450,000 . . . ." (Id., ¶ 9.)² According to the Complaint, "[p]ursuant to 28 U.S.C. [§] 1391(b), venue is proper in this district since Wheeler's firm's registered office is in Winston-Salem, North Carolina and many of the tortious acts, practices and obstructive conduct described in this Complaint took place within the Middle District of North Carolina." (Id.)³

Under the heading "Factual Allegations in Common," the Complaint sets out 23 paragraphs/subparagraphs of assertions, most of which fairly qualify as conclusory or fail to offer factual matter regarding Defendants. (Id., ¶¶ 15-30.)⁴ Relevant to the issue of venue, that section of the Complaint acknowledges that "[t]he objects of the Civil Conspiracy and Wheeler's acts of intentional obstruction of justice were targeted towards thecriminal prosecution of [Plaintiff] in the EDNC [Eastern District of North Carolina]." (Id., ¶ 17 (emphasis added).) Moreover, in terms of non-conclusory assertions regarding Defendants, the Factual Allegations in Common section references only one matter linked to the Middle District of North Carolina: "Wheeler personally interviewed [a state judge] on September 29, 2009 in Winston-Salem . . . who supervised the receivership litigation [arising from some of Hollenbeck's fraudulent investment activity] wherein [Plaintiff] appeared as co-counsel . . . ." (Id., ¶ 27(A).) This section of the Complaint, however, does not assert that said interview itself constituted part of Wheeler's alleged obstruction of justice or any related conspiracy among Defendants; instead, it contends "[t]hat Wheeler caused to be prepared a written interview report intended to summarize [the state judge's] statements during the interview, which report contained information favorable to [Plaintiff's] defense . . . [but] Wheeler failed to provide this information to [Plaintiff] and in fact intentionally concealed the report until several months after his conviction[.]" (Id., ¶ 27(B) (emphasis added).)

Given that Plaintiff's prosecution occurred in the Eastern District of North Carolina, Wheeler's alleged suppression of the foregoing report represents decision-making (whether characterized as action or omission) that took place in that district (at least in the absence of any plausible contrary allegations). Theremainder of the non-conclusory (and even the conclusory) factual matter concerning Defendants in the Complaint's "Factual Allegations in Common" section similarly appears to involve actions or omissions committed in the Eastern District of North Carolina. (See id., ¶¶ 15-30.) For example, within that section, the Complaint alleges that:

1) "Holding and Walker were responsible for the management, implementation and formation of prosecutorial guidelines and policies within the EDNC" (id., ¶ 23 (emphasis added));

2) "Holding and Walker fostered an atmosphere within the EDNC which enabled Wheeler and other AUSAs [Assistant United States Attorneys] within the criminal division of the EDNC to avoid and circumvent adherence to the requirements of formal DOJ [Department of Justice] policies and procedures and well established federal and constitutional principles governing disclosure of exculpatory and impeachment information to defendants charged with criminal offenses within the EDNC" (id., ¶ 25 (emphasis added));

3) "Wheeler concealed and failed to disclose to [Plaintiff] the Hollenbeck immunity contracts . . . [as well as the fact] that Hollenbeck testified falsely during [Plaintiff's] trial when he denied having received any promises from Wheeler" (id., ¶ 27(C) (emphasis added));

4) "Wheeler failed to disclose and actually concealed the existence of . . . Tolling Agreements [with] and the threats ofprosecution made to Levonda Leamon prior to her testimony at [Plaintiff's] trial" (id., ¶ 27(D) (emphasis added));

5) "Wheeler failed to disclose and reveal to [Plaintiff] a certain unidentified grand jury transcript that was only identified by Wheeler months after trial and later by [another Assistant United States Attorney in the Eastern District of North Carolina] as consisting of potential Brady Material" (id., ¶ 27(E) (emphasis added)); and

6) "Wheeler consciously withheld the Brady Material from the open file materials [Plaintiff] had access to" (id., ¶ 27(F) (emphasis added)).

That pattern of focusing on events or decision-making occurring in the Eastern District of North Carolina persists within the next section of the Complaint, entitled "Count I - Common Law Obstruction of Justice Against Wheeler." (Id., ¶¶ 31-50.)⁵Specifically, the Count I section alleges that:

1) "Wheeler initiated a criminal investigation of [Plaintiff] as a result of personal animus" (id., ¶ 32(A) (emphasis added); seealso id., ¶ 32(C) (attributing Wheeler's prosecution decision to "personal animus and vindictive motives"));

2) Wheeler "ma[de] express misrepresentations to [Plaintiff's] trial judge," "conceal[ed] the fact of [the] interview [with the state judge]," and "misle[d] [Plaintiff's] legal counsel about the true nature of Wheeler's investigation, the status of the investigation, and Wheeler's willingness to consider exculpatory information" (id., ¶ 32(B) (emphasis added));

3) "Holding blithely and falsely stated in a press release following [Plaintiff's] conviction that: '[Plaintiff] had evaded SEC [United States Securities and Exchange Commission] audits, avoided examination by the bar association, and managed to fool nearly everyone'" (id., ¶ 32(K) (emphasis added));

4) Wheeler "specifically intended to obstruct, impede, prevent and hinder the gathering of evidence from potential trial witnesses through a series of written instructions on how to conduct the call interviews" (id., ¶ 34 (emphasis added));

5) "rather than investigating and discovering the truth, Wheeler had reached his conclusions long before his access to any statements given to the FBI [Federal Bureau of Investigation] by . . . important government witnesses" (id., ¶ 37 (emphasis added); see also id., ¶ 36 (asserting that Wheeler reported conclusions about Plaintiff's culpability when "he formally requested the investigatory assistance of the FBI"); 6) "Wheeler has never disclosed to [Plaintiff] at anytime the existence of the Leamon Tolling Agreement [or] his threats or statements to Leamon or her counsel reflecting Wheeler's intent to prosecute Leamon" (id., ¶ 43 (emphasis added)); and

7) "[a]n evidentiary hearing was conducted in [Plaintiff's] Criminal case . . . to determine whether [he] should be granted a new trial . . . [and] Wheeler was subpoenaed . . ., but he refused to testify concerning any of the...