Bartoli v. United States
| Decision Date | 03 January 2021 |
| Docket Number | CASE NO.: 5:03-cr-00387,CASE NO.: 5:19-cv-01841 |
| Parties | ERIC V. BARTOLI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OF OPINION AND ORDER
(Resolves Docs. 74, 98, 127, and 128 for 5:03-cr-0387)
This matter is before the Court on Petitioner Eric V. Bartoli's ("Bartoli") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Mot. to Vacate, ECF No. 74.)1 For the reasons discussed, detailed, and analyzed herein Bartoli's motion is granted in part and denied in part.
Between 1995 and 1999, Bartoli executed an investment scheme where he marketed and sold unregistered securities to hundreds of investors around the world. (Plea Agreement 17-25, ECF No. 34.) Investors' funds were not actually invested, however, but rather diverted to other investment schemes or for Bartoli's and his coconspirators' personal use. (Id.) The scheme resulted in Bartoli and his coconspirators obtaining approximately $64.7 million from investors, while only about $30.6 million was returned to investors in the form of redemptions. (Id.) Bartoli also filed false and fraudulent income tax return forms grossly understating his taxable income for the 1996 and 1997 tax years and completely failed to file income tax return forms for the 1998 tax year. (Id. at 25-26.) In 1999, after the SEC enjoined Bartoli and his coconspirators from operating thescheme and a receiver was appointed to recover investors' funds, Bartoli abandoned his Ohio residence. (Id. at 26.) Around November 1, 2000, Bartoli left the United States. (Id.)
On October 15, 2003, a federal Grand Jury indicted Bartoli for the following: Count 1 - Conspiracy to Commit an Offense in violation of 18 U.S.C. § 371 (hereinafter "Conspiracy Charge"); Count 2 - Securities Fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff(a), and 17 C.F.R. § 240.10b-5 (hereinafter "Securities Fraud Charge"); Count 3 - Sale of Unregistered Securities in violation of 15 U.S.C. §§ 77e(a) and 77x (hereinafter "Sale of Unregistered Securities Charge"); Count 4 - Wire Fraud in violation of 18 U.S.C. § 1343 (hereinafter "Wire Fraud Charge"); Count 5 - Mail Fraud in violation of 18 U.S.C. § 1341 ("Mail Fraud Charge"); Count 6 - Money Laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (hereinafter "First Money Laundering Charge"); Count 7 - Money Laundering in violation of 18 U.S.C. § 1957 (hereinafter "Second Money Laundering Charge"); and Counts 8-10 - Attempted Income Tax Evasion in violation of 26 U.S.C. § 7201 (hereinafter, collectively, "Attempted Income Tax Evasion Charges"). (Indictment 1-54, ECF No. 2.) Bartoli was indicted for conduct that occurred between 1995 and August 27, 1999. (Id.)
Thereafter, beginning in approximately 2006, Bartoli, while residing in Peru, used aliases such as "Enrico B. Orlandini," "Giuseppe Luigi Borrelli," "Steve Betts," and "Roger Williams" to represent himself as an investment advisor and operator of multiple financial services firms and investment newsletters. (Plea Agreement 26-27, ECF No. 34.) Bartoli ultimately convinced individuals to invest in the funds he claimed to manage. (Id.) However, Bartoli never invested the money he was given and instead used it all to enrich himself. (Id. at 26-28.) Bartoli defrauded individuals of approximately $5,588,000 in this scheme. (Id. at 28.)
On December 11, 2013, Bartoli was arrested by the Peruvian National Police on a warrant related to the indictment in this matter. At the end of October 2015, Bartoli was arrested by the Federal Bureau of Investigation and extradited to the United States.
On October 29, 2015, Bartoli appeared before this Court for arraignment where he pled not guilty to the charges against him and was remanded into custody. On July 13, 2016, Bartoli and the government entered into a written plea agreement and attended a change of plea hearing before this Court.
Throughout the change of plea hearing, Bartoli was under oath and not under the influence of any substance that would affect his ability to understand the hearing. (Tr. Change of Plea Hr'g 3:7-21, 4:6-13, ECF No. 53.) At the outset, Bartoli affirmed he fully reviewed the indictment and understood the charges it contained, he had adequate time to discuss and review all the matters related to his case, including possible defenses, with his attorneys, and he was satisfied with his attorneys' performances. (Id. at 4:14-5:6, 39:6-15.) Bartoli also affirmed, with respect to the written plea agreement, he had fully read and reviewed it, he understood its terms, and no one had made any promises or threats which persuaded him to sign it. (Id. at 5:23-6:16, 7:6-9, 39:6-15, 45:20-22.)
Thereafter, this Court engaged in a lengthy plea colloquy with Bartoli during which the written plea agreement was reviewed paragraph by paragraph - this necessarily included detailing the consequences of pleading guilty and the offenses, along with their associated legal elements, to which Bartoli wished to plead guilty. Of note, while detailing the consequences of pleading guilty, this Court, in accordance with the information contained in the written plea agreement, provided that Count 2, the Securities Fraud Charge, Count 4, the Wire Fraud Charge, and Count 5, the Mail Fraud Charge, each carried a twenty-year statutory maximum term of imprisonment.
When this Court sought to determine the factual basis for Bartoli's guilty plea, Bartoli admitted, under oath, that the factual basis contained in the written plea agreement - labeled "Attachment A" - was accurate and truthful. (Tr. Change of Plea Hr'g 44:11-45:7, ECF No. 53.) More specifically, Bartoli affirmed he carefully and thoroughly reviewed the factual materials supporting the government's case against him, he understood the factual recitation, and he admitted to engaging in the illegal activity as written. (Id.)
Throughout the change of plea hearing, Bartoli consistently and coherently agreed, under oath, that he wished to waive his rights and plead guilty to the Conspiracy Charge, the Securities Fraud Charge, the Sale of Unregistered Securities Charge, the Wire Fraud Charge, the Mail Fraud Charge, and the Attempted Income Tax Charges against him. (Id. at 5:7-22, 12:24-13:11, 40:10-17, 41:9-44:10.) Therefore, after the lengthy and thorough exchange between Bartoli and this Court, Bartoli entered his guilty plea and this Court accepted it with a finding that Bartoli was competent and entered an informed, knowing, and voluntary plea. (Id. at 46:6-23.) Likewise, Bartoli's written plea agreement, signed by both Bartoli and this Court, was finalized. (Plea Agreement 16, ECF No. 34.)
On November 9, 2016, Bartoli attended his sentencing hearing where this Court sentenced Bartoli to the custody of the United States Bureau of Prisons for five years each as to Count 1, the Conspiracy Charge, Count 3, the Sale of Unregistered Securities Charge, and Counts 8-10, theAttempted Income Tax Evasion Charges, and to twenty years each as to Count 2, the Securities Fraud Charge, Count 4, the Wire Fraud Charge, and Count 5, the Mail Fraud Charge, with all sentences to run concurrently, and ordered Bartoli to pay $42,499,302.82 in restitution. (Min. 11/09/2016; Tr. Sentencing Hr'g 3:3-19, 55:20-61:3, ECF No. 56; J. 1-8, ECF No. 44.) Counts 6 and 7, the First Money Laundering Charge and the Second Money Laundering Charge, were dismissed upon the government's motion. (Min. 11/09/2016; Tr. Sentencing Hr'g 60:22-25, ECF No. 56; J. 1, ECF No. 44.) This Court's sentence was affirmed on appeal. United States v. Bartoli, 728 F. App'x 424 (6th Cir. 2018). Bartoli's request for rehearing en banc was denied as was his petition for certiorari to the Supreme Court of the United States. United States v. Bartoli, No. 16-4748, 2018 U.S. App. LEXIS 13250, at *1 (6th Cir. May 21, 2018); United States v. Bartoli, 139 S. Ct. 1463 (2019) (table decision).
On August 13, 2019, Bartoli filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Mot. to Vacate, ECF No. 74.) Bartoli's Motion to Vacate sets forth five grounds for relief: (1) ineffective assistance of counsel for failing to identify Ex Post Facto Clause violations; (2) ineffective assistance of counsel for failing to assert Bartoli's Sixth Amendment right to a speedy trial was violated; (3) ineffective assistance of counsel for failing to argue Bartoli's extradition was illegal; (4) ineffective assistance of counsel during Bartoli's sentencing; and (5) "constitutional questions" regarding prosecutorial misconduct and the application of the Ex Post Facto Clause to extradition treaties.
In response, the government filed a Response in Partial Concession, conceding that Bartoli must be resentenced due to Ex Post Facto Clause violations that occurred at Bartoli's sentencing. (Resp't's Resp. in Partial Concession 1, 3-6, ECF No. 84.) Accordingly, this Court vacatedBartoli's sentence and ordered Bartoli's transfer back to the Northern District of Ohio for appointment of counsel. (Order, ECF No. 91.)
Bartoli was subsequently appointed counsel who was awarded time to thoroughly review Bartoli's case and supplement the arguments in Bartoli's original Motion to Vacate. (See Docket Entry 04/01/2020; Tr. Apr. 8, 2020 Status Conference, ECF No. 107; Tr. Jun. 9, 2020 Status Conference, ECF...
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