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Alleging Misconduct, Convicted Fraudster Seeks Enforcement Records From SEC, DOJ

Friday, August 2, 2013
By Yin Wilczek

A former securities attorney July 26 filed a Freedom of Information Act lawsuit against the Securities and Exchange Commission, Department of Justice, and other agencies seeking records related to his 2010 conviction based on the sale of fraudulent investments (Bartko v. DOJ , D.D.C., No. 1:13-cv-01135, 7/26/13).

In a complaint filed in the U.S. District Court for the District of Columbia, Gregory Bartko alleged that the SEC, DOJ, U.S. Postal Inspection Service, FBI, and the DOJ's Office of Professional Responsibility failed to respond to his repeated requests for documents. 

'Compelling Public Interest.'

“There is a compelling public interest in scrutinizing federal criminal prosecutions that include allegations and evidence which reveal that such prosecutions were conducted with a failure to timely disclose exculpatory and impeachment evidence mandated by clearly established federal law,” the complaint said.

Bartko's complaint also asserted that “there has been a pattern of tainted prosecutions arising from the Eastern District of North Carolina ('EDNC') which have included similar prosecutorial misconduct.”

SEC spokesman John Nester declined to comment on the lawsuit. A DOJ spokesman did not immediately respond to a request for comment.

Bartko, a former securities attorney and the former chief executive officer of registered broker-dealer Capstone Partners LC, was convicted in November 2010 in the U.S. District Court for the Eastern District of North Carolina of four counts of mail fraud and one count of selling unregistered securities. The conviction related to the sale of hundreds of thousands of dollars of fraudulent investments in the Capstone Private Equity Bridge and Mezzanine Fund LLC and other funds controlled by Bartko.

The defendant was sentenced to 276 months in prison, and fined more than $886,000. His conviction is on appeal before the U.S. Court of Appeals for the Fourth Circuit (United States v. Bartko, No. 12-4298). Bartko currently is imprisoned in Mississippi.

The SEC, in response to the conviction, in August 2012 barred Bartko from the securities industry. 

Investigative Records

In his complaint, Bartko alleged that he repeatedly sought from the SEC records and documents related to the commission's investigation of him and the Capstone fund, as well as “the SEC Division of Enforcement's decision not to authorize or recommend any enforcement proceedings against Bartko or the Capstone Fund.” He also sought documents related to the communications between the SEC and prosecutors from the Eastern District of North Carolina regarding his case.

As to DOJ, Bartko said he sought records related to the department's investigation of him, the Capstone Fund, and various financial firms. The defendant said the federal agencies cited the FOIA law enforcement exemption in declining to produce the requested records.

Bartko represents himself. The case has been assigned to Judge James Boasberg.


The complaint is available at http://www.bloomberglaw.com/public/document/BARTKO_v_UNITED_STATES_DEPARTMENT_OF_JUSTICE_et_al_Docket_No_113c.

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