Anatomy of “Brady” Violations
THE ANATOMY OF HOW “BRADY” VIOLATIONS EVISCERATE DUE PROCESS
It’s been 81/2 years since my conviction in a federal courtroom in Raleigh, North Carolina, a place I used to live, enjoyed, and practiced law. I no longer enjoy Raleigh, NC. Assuming that I am compelled to complete my full prison sentence of 23 years, my release date is in November, 2030. I will be 78 years old at that time. I did not commit murder or any other heinous or violent crime. In fact, I committed no crimes at all. I did what lawyers do— I represented a client in trouble. A jury of my peers, however, was convinced otherwise. One’s first impression: isn’t that the way our criminal justice system is supposed to function? No, it’s not. Our trial system is supposed to be a process enabling the discovery of truth. The system was also designed with fairness accorded to the accused. I am here to tell you how our criminal justice system has been and can be distorted. That the exposure of truth is frequently manipulated by those in positions of authority in our government to further their own personal and career objectives. One position of authority that is prone to sacrifice truth and fairness for professional gain are some (but not all) prosecutors.
I share my own thoughts and experiences here because I can be assured of accuracy of the underlying facts. My case is one of many hundreds of federal and state prosecutions where similar prosecutorial misconduct exists. In many instances a defendant actually is guilty of the crime charged. In fact, a high percentage of those accused of crime have actually committed the crime charged. But, there is an alarmingly increasing number of people accused that are pushed through our criminal justice system who are being sent to prison for a long time who are factually innocent. Recent developments in forensic evidence analysis, such as DNA, have demonstrated this to be true. No one really knows what the percentages look like, but then again, it is possible that no one wants to know.
Before my 2010 conviction for mail fraud, sale of unregistered securities and conspiracy, I practiced law for over 30 years. I concentrated my practice in securities laws for 20 of those years. I had never been accused or convicted of any crime. I never have been accused of wrongdoing as a member of the bar of three states, and I have never lied under oath. So, what did I do wrong? How and why did federal prosecutors target me as the leader and organizer of a massive investment scheme? The answer is a long and tortured story and I suppose it depends on who you ask. The story has facts, and although they can be bent, twisted, and manipulated, there can only be one set of truthful facts. The facts recounted in this article are based upon information revealed since my three week trial in November, 2010. If the information since revealed was known by my defense before or at the time of trial, there would have been a reasonable likelihood I would still be practicing law, still living with my wife, still able to be a father in the lives of my two children, and still holding on to my professional reputation. Instead, I have had to spend each day since November 18, 2010 challenging my wrongful conviction and taxpayers have had to support my existence. Even though the information I have revealed below has been disclosed properly to the federal court system within the legal procedures available to challenge a conviction, success has thus far eluded me. Even so, I have been emboldened by the discoveries of serious prosecutorial misconduct, a pattern of deliberate withholding of evidence favorable to my defense, which by law must be disclosed before trial, the presentation of false and perjured testimony by the government’s principle witness against me, the corruption of the lead prosecutor on my case who deliberately withheld evidence, made undisclosed promises of immunity and leniency to the government’s principle witness and his wife, and the prosecutor’s own false and perjured declarations designed by Assistant U.S. Attorney Clay C. Wheeler to conceal his earlier misconduct. It is hard to discover what I don’t know about my prosecution, but I soldier on because I know the truth.
Before diving into some of the more prominent acts of misconduct in my prosecution, what did I do that attracted the interest of federal prosecutors? I, and one of my North Carolina-based former law partners, agreed to represent a former broker and investment sales representative, Scott B. Hollenbeck (“Hollenbeck”), in civil proceedings brought against him and others in the state of North Carolina and by the Securities and Exchange Commission out of its Atlanta District Office (“SEC-ATL”). Hollenbeck initially portrayed himself as a victim of one company he actively sold investments for due to the company’s belief that it was not selling securities subject to securities regulations. In reality, over the course of the many months we represented Hollenbeck, we discovered that he had been engaged in several investment frauds over the span of at least five years, four of which preceded my introduction to Hollenbeck. Not until very late in my representation of Hollenbeck, did it become apparent that he deliberately and methodically concealed from me the nature and extent of his fraudulent activities. Upon my discovery, I fired him as a client, although my co-counsel continued to represent him until Hollenbeck’s case turned into a probable criminal prosecution. I may have been naive in believing Hollenbeck was following our legal advice (given over and over in writing and in conversations), but it was only the AUSA’s who targeted me for prosecution that converted my best efforts into criminal activities. These AUSA’s knew that to successfully convict me, they had to “cheat” by concealing exculpatory and impeachment evidence. They had to cheat by enticing Hollenbeck to testify against the very lawyer who tried to help him (that’s me) by dangling all sorts of incentives to him in exchange for his cooperation and testimony. And worst of all they had to cheat by concealing, not only the incentives given to Hollenbeck, but also permitting the false and misleading testimony given by Hollenbeck against me at trial. How did all of this plan work out? Hollenbeck received a shortened prison sentence upon the request of AUSA Wheeler. AUSA Wheeler then left the U.S. Attorney’s Office in the Eastern District of North Carolina (“EDNC”) to take a position as a partner in a well-known North Carolina law firm. I, on the other hand, received a 23-year prison sentence, was accused by my prosecutors and trial judge of having committed perjury during my trial testimony, and was deemed to be the ring leader of Hollenbeck’s fraudulent schemes in 2003 to 2005.
Complicating my representation of Hollenbeck was my belief at the time that since he was no longer permitted to solicit investors due to his legal problems, I became interested in his referral of his more sophisticated clients interested in an investment in a small, start-up private equity fund that I was managing at the time. After raising a little over $2.5 million for the fund from Hollenbeck’s investors, it was devastating to discover that Hollenbeck had continued defrauding those who he referred to the fund. Upon this discovery, a decision was made to return all investments and close down the fund. This was AUSA Wheeler’s opportunity to begin to destroy me.
Spending the first 17 months of my prison sentence in two North Carolina county jails, I constantly scratched my head trying to figure out what went wrong in my defense. How could a person who did not commit the offenses for which he stood trial, who testified truthfully in my own defense extensively, had been represented throughout the case purportedly by some of the best criminal defense lawyers in the Southeast, and who tried to do everything above board upon discovery of my former client’s fraudulent activities—-be convicted. Some answers to these questions began to surface on June 29, 2011—seven months after my trial. The following revelations are fully documented in the case filings in the federal trial and appeals court that relate to my criminal conviction. Each of these developments include extended factual background and legal analysis which cannot be recited here due to complexity and length, as I suspect that the reader would be lost in minutiae and boredom:
1. Effective May 31, 2011, the lead AUSA assigned to my prosecution, AUSA Wheeler, terminated his employment as an AUSA in the Eastern District of North Carolina and moved into private practice. We have since
learned that he has been the subject of misconduct complaints in the past.
2. AUSA David A. Bragdon (the more junior AUSA assigned to the case) assumed responsibility over my sentencing and post-conviction proceedings. On June 29, 2011, seven months after trial, AUSA Bragdon sent a letter to my lawyers explaining that the government (acting through AUSA Wheeler) had failed to disclose the existence of what the Hollenbecks referred to as an “immunity contract” for Mr. and Mrs. Hollenbeck. Both agreements were enclosed fully signed by the Hollenbecks and AUSA Wheeler. It quickly became evident that the Hollenbecks had been given “use immunity” from prosecution as early as March, 2009 and were told that they were not targets of the investigation. Other promises to the Hollenbecks were included in the agreements. The Hollenbecks’ lawyer, C. Scott Holmes, who facilitated the negotiation and documentation of the agreements routinely characterized the agreements as “immunity agreements.”
3. After this discovery, AUSA Bragdon represented that AUSA Wheeler merely “forgot” about the existence of both Hollenbeck agreements, seemingly explaining why they were not disclosed. Even if true (which it is not), forgetting about the agreements does not excuse concealing the existence of the promises and benefits extended to the Hollenbecks—also Brady/Giglio violations. One would think that during trial when AUSA Wheeler asked Hollenbeck what if any promises had been made to him by the government, Hollenbeck’s emphatic answer of “none” would have sparked Wheeler’s memory.
4. On July 25, 2011, my trial judge conducted a summary evidentiary hearing (where no testimony was taken) to determine the legal ramifications of the government’s failure to disclose the Hollenbeck immunity contracts. Before the hearing, and due to defense counsel’s prodding, AUSA Bragdon also disclosed that a tolling agreement (and an extension to the agreement) had been entered into between AUSA Wheeler and another government witness and alleged co-conspirator. The effect of the agreements was to stop the running of the statute of limitations against the witness, thus continuing the threat of prosecution of the witness until the trial was over and her testimony against Bartko presented. The witness was never prosecuted.
5. Also, before the hearing, but several months after trial in preparation for sentencing, AUSA Wheeler disclosed a Memorandum of Interview (“MOI”) prepared by one of the case agents arising from an interview by AUSA Wheeler and the North Carolina Superior Court Judge who had supervised the Bull Mountain Receivership Litigation, which I and my co-counsel handled for over three years. The interview took place more than a year before trial and included information favorable to my defense, as the NC state judge believed we did a reputable job in collecting over $21.0 million of Hollenbeck’s investor losses which were then distributed to his victims in the Bull Mountain fraud scheme.
6. Although my role in the Bull Mountain Receivership Litigation was excluded from mention in my trial, the case had a prominent impact on my indictment and my conviction. The purpose of the litigation was to recover
tens of millions of dollars raised by Hollenbeck long before we began representing him and that was deployed to a large coal mining operation in Montana. A receiver was appointed to conduct the litigation, who my co-counsel and I represented. The case consumed thousands of hours, a difficult Connecticut-based private equity fund, and many threats of bankruptcy. After more than three years, the receiver was successful in recovering over $21.0 million representing about 96% of the victim claims before fees and expenses. The recovery was distributed to Hollenbeck’s victims under court supervision. Since my co-counsel and I recovered a “common fund” on behalf of these victims, we petitioned the receivership judge to award a 10% success fee to each of us. After a full hearing on the fairness of the fee request where all victims were invited to attend, the judge approved our request and we both received about $2.0 for our efforts. In my opinion, this fee was what prompted AUSA Wheeler to investigate, indict, and prosecute me. In other words, a completely legitimate common fund recovery exposed the professional jealousy of a government lawyer who had the means at his disposal to destroy me.
7. Did I mention that the Bull Mountain Receivership Litigation was excluded from mention during my trial? Even though that was a pretrial decision reached by my trial judge, that did not inhibit a finding by the judge in a post-conviction motion that my role in the receivership case was just another aspect of my fraudulent conduct.
8. Following the July 25, 2011 hearing, six months later on January 17, 2012, my trial judge issued a 120- page decision rejecting all of the Brady claims advanced at the hearing. The decision reported at 2012 U.S. Dist.
LEXIS 189014 (E.D.N.C. Jan. 17, 2012) is the first of several trial court decisions based upon a review of almost exclusively the government’s evidence without mentioning defense evidence supporting claims of innocence. The trial judge specifically found Hollenbeck’s trial testimony to be truthful and contradictory to much of the defense evidence. The trial judge ignored AUSA Wheeler’s actions.
9. My conviction was appealed to the Fourth Circuit Court of Appeals with oral argument conducted on May 17, 2013. The appellate decision was released on August 23, 2013 in a 40-page published opinion reported at
728 F.3d 327 (4th Cir. 2013). Although unfortunately my conviction and sentence were affirmed, the appellate court highly criticized the prosecution’s concealment of evidence from the defense, its failure to correct Hollenbeck’s false testimony denying his receipt of promises from the government, emphasized that cases prosecuted in the EDNC include a troubling pattern of such misconduct, and demanded of the United States Attorney’s Office that “something must be done.” Judge Floyd, who authored the opinion, took the unusual step of referring the case to the U.S. Attorney General (Eric Holder at the time) and the Department of Justice’s Office of Professional Responsibility (“OPR”). Neither office conducted any meaningful investigation of AUSA Wheeler’s misconduct.
10. Long before the appeal of the conviction was completed, and largely due to the concern that AUSA Wheeler had concealed other evidence favorable to my defense, a concerted effort was undertaken by me to uncover information which should have been disclosed to the defense under constitutional principles as well as other ethical and Department of Justice policy requirements. The only means of doing so was in reliance on the Freedom of Information Act (“FOIA”).
11. Between March 1, 2012 and the present day, FOIA requests have been submitted by me to seven government agencies seeking additional records related to the investigation and my conviction. This effort has resulted in six years of federal court litigation, and an appeal in the District of Columbia federal appeals court, all challenging the government’s withholding of responsive records. The appeal of one of my two FOIA cases resulted in a published opinion issued by the U.S. Circuit Court for the District of Columbia worth reading. See 898 F.3d 51 (D.C. Cir. 2018). This effort has also resulted in the revelation of scores of additional witness interview statements following interviews by case agents, several of which could have been used by the defense to debunk the government’s theories of my guilt. Even though AUSA Wheeler told the trial judge and defense counsel in writing that all such witness interview statements had been disclosed to the defense, there were no less than a dozen such MOI’s and FBI 302’s which were concealed. This was during the same time frame that AUSA Wheeler convinced my trial judge that “open file” discovery had been accorded to the defense with the trial judge so finding in a written decision.
12. In addition to the concealed witness statements, records were obtained through the FOIA consisting of the handwritten case agent notes taken during the interviews which in several instances included information favorable to my defense but miraculously was not included in the formal interview statements disclosed to the defense. By way of example, the FBI 302 prepared by case agents following Hollenbeck’s interview expressly states that no promises were being made to him. This, of course, has since been shown to be demonstrably false.
13. After accumulating all of the concealed information that was favorable to the defense, some of which demonstrated other aspects of Hollenbeck’s false and perjured testimony as well as the prosecutors’ awareness of the falsity of the testimony, motions to vacate the conviction were filed on January 26, 2015 and amended on July 27, 2015. These motions, which challenged the constitutionality of the conviction and my incarceration under 28 U.S.C. § 2255 were fully briefed, but the trial court appears to have intentionally delayed deciding these motions until November 2, 2018, almost 46 months after they were initially filed.
14. During the many months (and years) my habeas challenges were pending, two private investigators acting on my behalf agreed to develop additional information to bolster the challenges. Although this effort in itself took over two years, it was highly successful.
15. After great effort, Hollenbeck was located after he was released from BOP custody In October, 2015. He was approached in January, 2018 and agreed to a series of interviews by the investigators, all of which were taped with his consent.
16. Finally, on March 7, 2018, Hollenbeck agreed to a full and final interview session under oath in the presence of a court reporter. The result of these interviews was Hollenbeck’s complete recantation of his damaging trial testimony, his candid admissions that he intentional concealed his fraudulent investment activities from his lawyers, and that he perjured much of his trial testimony implicating me in his fraud scheme. Hollenbeck also explained why he did what he did, which was due to his fear that AUSA Wheeler would further prosecute he and his wife and that he was told he would likely receive a shortened sentence if AUSA Wheeler was satisfied with his cooperation and trial testimony. Hollenbeck lied about all of these benefits during trial as well. Hollenbeck also testified to these same lies in his business partner’s trial held six months earlier. This false testimony involved the same AUSA before the same trial judge.
17. Hollenbeck’s recantation was of course significant. A second request to supplement the pending motion to vacate to include these developments as supplemental Brady claims was submitted in March, 2018 attaching certified transcripts of all of Hollenbeck’s recantation statements and making the audio recordings available.
18. Still my trial judge failed to decide any of the pending motions for eight more months. Finally on November 2, 2018, a 43-page decision was issued dismissing every claim made which challenged the constitutionality of my conviction and denied my request to supplement the existing Brady claims based upon Hollenbeck’s sworn recantation. This decision, reported at 2018 U.S. Dist. LEXIS 187931(E.D.N.C. Nov. 2, 2018) was filed one day after a petition for a writ of mandamus was sent to the Fourth Circuit Court of Appeals on my behalf requesting the appellate court to order my trial judge to render decisions on the pending motion to vacate. Could this be merely a coincidence after 46 months of waiting? Unlikely.
19. As anyone can see by reading the trial court’s dismissal of all of my habeas claims brought under 28 U.S.C. § 2255, the trial court used unnecessarily abusive and intemperate judicial language in denying the habeas claims. Anyone can see, who knows this case, that these are not the remarks and findings of an unbiased and impartial judge. Habeas claims based upon concealing favorable evidence, presenting false and perjured testimony, falsified declarations by a prosecutor, and facially credible sworn recantations of the trial testimony of the government’s principle witness should not be labeled as “laughable” or “nonsensical.”
20. Even more inimical to a fair assessment of my efforts to supplement the Brady violations set forth in the motion to vacate is the trial judge’s conclusions that Hollenbeck’s recantations have no credibility, that nothing Hollenbeck will ever say will be believed by the judge, and that nothing Hollenbeck could say would alter the outcome of my conviction. In short, although Hollenbeck has admitted perjured trial testimony under oath, the only truthful statements accepted by my trial judge were those presented at trial. This conclusion remains at odds with the Fourth Circuit’s holding that Hollenbeck testified falsely at trial. The prosecutors have steadfastly maintained that Hollenbeck testified truthfully.
21. The trial judge’s dismissal of the motion to vacate is now on appeal to the Fourth Circuit where the appellate court first must determine if the dismissed habeas claims have sufficient merit to proceed on appeal. In the trial court, motions have been filed and are pending requesting recusal of the trial judge based upon the appearance of bias and lack of impartiality in dismissing the motion to vacate and the judge’s statements that reflect that under no circumstances would Hollenbeck’s recantation statements be considered by the court. In addition, a motion is pending which seeks relief from the trial court’s refusal to consider the Brady claims arising from Hollenbeck’s recantation found to be untimely by the judge, when in fact the additional Brady claims were timely filed under the relevant statute of limitations. The trial judge never considered the timeliness of these additional claims under other provisions of the statute of limitations.
At my sentencing hearing, AUSA Bragdon asked my judge to impose a 90-year sentence. Bragdon made the request with a straight face. AUSA Bragdon also said that obtaining a conviction in a case such as mine was a 1 in a 100 proposition. Although I am uncertain what he meant by that statement, those sort of odds give some meaning as to why my prosecutors violated the law to destroy me. The only remaining question I have is whether Due Process guaranteed by the Fifth Amendment to the Constitution is more important than exposing government misconduct, a tainted conviction, and holding a corrupt AUSA accountable. As to this, I’m not sure.