United States v. Bartok , 472 F. App'x 25 ( 2012 )

11-3553-cr
United States v. Bartok
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 29th day of March, two thousand twelve.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 11-3553-cr
ANDREW BARTOK,
Defendant-Appellant,
KATHLEEN ADDARIO, a.k.a. Kathy Adams, a.k.a.
Kate Adams, a.k.a. Kathleen Kelly, VERONICA TOBIN,
a.k.a. Veronica A. Tobin, a.k.a. Veronica Jackson,
Defendants.
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APPEARING FOR APPELLANT: COLLEEN P. CASSIDY, Appeals Bureau,
Federal Defenders of New York, Inc., New York,
New York.
APPEARING FOR APPELLEE: JOHN P. COLLINS, JR., Assistant United States
Attorney, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, New York.
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Appeal from an order of the United States District Court for the Southern District of
New York (Cathy Seibel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order issued on August 18, 2011, is AFFIRMED.
Andrew Bartok, who stands indicted for conspiracy to commit bankruptcy fraud,
conspiracy to commit mail and wire fraud, conspiracy to commit obstruction of justice, and
obstruction of justice, see 18 U.S.C. §§ 371, 1001, 1349, 1512(k), 1519, appeals from an
order revoking bail pending trial pursuant to 18 U.S.C. § 3148(b), see United States v.
LaFontaine, 210 F.3d 125, 130 (2d Cir. 2000). We review the district court’s findings of fact
pertaining to the challenged revocation for clear error, see United States v. English, 629 F.3d
311, 319 (2d Cir. 2011), and will not reverse “unless on the entire evidence we are left with
the definite and firm conviction that a mistake has been committed,” United States v.
Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation marks omitted). We assume
familiarity with the facts and the record of prior proceedings, which we reference only as
necessary to explain our decision to affirm.
A district court may revoke a prior grant of bail based on a finding, made after a
hearing, that there is probable cause to believe that the defendant has committed a crime
while on release, see 18 U.S.C. § 3148(b)(1)(A), and that “there is no condition or
combination of conditions of release that will assure that the person will not flee or pose a
danger to the safety of any other person or the community,” id. § 3148(b)(2)(A), or that “the
person is unlikely to abide by any condition or combination of conditions of release,” id.
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§ 3148(b)(2)(B). A finding of probable cause to believe that the defendant committed a
felony while on release gives rise to “a rebuttable presumption . . . that no condition or
combination of conditions will assure that the person will not pose a danger to the safety of
any other person or the community.” Id. § 3148(b). Such a rebuttable “presumption does
not disappear once the defendant has produced some rebuttal evidence, but continues to be
weighed along with other factors.” United States v. LaFontaine, 210 F.3d at 130 (internal
quotation marks omitted). Here, the felonious conduct prompting revocation was Bartok’s
purported perjury in a March 15, 2011 financial affidavit filed with the court pursuant to the
Criminal Justice Act (“CJA”). See 18 U.S.C. § 3006A.
1. The “Hearing” Requirement
As a preliminary matter, Bartok faults the district court for revoking his bail without
holding the hearing required by § 3148(b). We are not persuaded. Bail revocation hearings
are “typically informal” affairs. United States v. LaFontaine, 210 F.3d at 131 (internal
quotation marks omitted); see United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986).
We afford district courts wide discretion regarding the scope of such hearings, so long as the
chosen procedures are sufficient to ensure the reliability of questioned evidence. See United
States v. Martir, 782 F.2d at 1147.
Here, the government filed a letter on August 8, 2011, accusing Bartok of perjury in
his CJA affidavit. One week later, on August 15, 2011, the district court informed the parties
that the issue would be considered at a previously scheduled August 18, 2011 conference.
At the conference, Bartok’s counsel first told the district court that he was prepared to
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respond to the government’s allegations. Later, however, Bartok’s counsel claimed that he
had not yet had sufficient opportunity to verify the government’s information regarding his
client’s financial situation. The district court nevertheless instructed the parties to proceed
by proffer on the issue of whether bail should be revoked. After a short recess, the court
engaged in a detailed discussion with the parties regarding the proffered evidence of perjury
and concluded that bail should be revoked. Before so ruling, however, it advised that it
would leave the evidentiary record open should either party wish to supplement the record
or seek reconsideration. Bartok has not availed himself of these options. In these
circumstances, we conclude that the district court did not abuse its discretion by declining
to hold more extensive hearings before ordering revocation. See id. at 1145 (warning against
allowing bail hearing to become “mini-trial” or “discovery tool for the defendant”).
2. The Perjury Finding
Bartok argues that the district court clearly erred in finding probable cause to believe
that, by submitting the undisputedly “incomplete” financial affidavit, Revocation Hr’g Tr.
at 58, Bartok committed the federal felony of perjury. We are not persuaded. For Bartok’s
affidavit to have been perjurious, he would have had willfully to subscribe as true to material
matter that he did not believe to be true. See 18 U.S.C. § 1621(2). While probable cause
requires more than a mere suspicion of such wrongdoing, its focus is on probabilities, not
hard certainties. See Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007).
Here, Bartok failed truthfully to disclose certain assets, namely, his withdrawal of
$21,000 from a retirement account on the very day he filed the financial affidavit or shortly
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before that day. In response to the question on the form asking whether he received any
income during the past twelve months from “self-employment, or in the form of . . .
retirement or annuity payments, or other sources,” Bartok listed only $50,000 from “self-
employment,” [Ex. C] with no mention of the $21,000 withdrawal. Further, in response to
the question whether he owned “any real estate, stocks, bonds, notes, automobiles, or other
valuable property,” Bartok listed only $26,000 in a retirement account—the balance after the
$21,000 withdrawal. Nor did he disclose his partial equity in a 2009 Mercedes Benz
automobile purchased for approximately $120,000. The district court acted well within its
discretion in inferring from “the magnitude of the omissions” and the timing of the
withdrawal that the omissions were probably willful. Revocation Hr’g Tr. at 64.1
3. The Public Danger Finding
Bartok contends that a probable cause finding of perjury should not trigger
§ 3148(b)’s rebuttable presumption of dangerousness. However, the law plainly states that
the presumption may be triggered by a probable cause finding as to a defendant’s
commission of any felony, regardless of whether the felony itself involves violence, threats,
or other indicia of dangerousness. See United States v. LaFontaine, 210 F.3d at 134. Perjury
is a Class D federal felony crime. See 18 U.S.C. § 1621 (providing for five-year maximum
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Like the district court, we need not consider any other possible knowing
misstatements in the affidavit, e.g., whether Bartok’s statement that he had no cash on hand
or money in bank accounts was false in light of evidence that (1) during Bartok’s release, he
and his family frequently withdrew funds from a business account for personal use; and
(2) over the course of the month following Bartok’s submission of the affidavit, he purchased
some $40,000 in chips at Atlantic City casinos.
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prison sentence); id. § 3559(a)(4) (providing that offense with maximum prison term of “less
than ten years but five or more years” is Class D felony). Moreover, conduct by a defendant
that “pose[s] a serious threat to the court’s processes” has long been recognized as a ground
for pretrial detention, see United States v. Payden, 768 F.2d 487, 490 (2d Cir. 1985), and a
defendant’s submission of a materially false affidavit to the court signifies such a threat. No
different conclusion is warranted because the affidavit pertained to defendant’s eligibility for
publicly funded legal counsel rather than the merits, particularly where, as here, defendant
was already charged with obstruction of justice and fraud on a federal court.
At the hearing, Bartok proffered no evidence to rebut § 3148(b)’s presumption in
favor of detention. Thus, we cannot identify clear error in the district court’s finding that no
conditions of release were adequate to safeguard against the risk of public danger posed by
Bartok. As such, we need not and do not reach Bartok’s argument that the district court
clearly erred in its separate factual finding that Bartok’s history of deceiving the court also
warranted his detention as a risk of flight. See 18 U.S.C. § 3148(b)(2)(A).
4. Conclusion
For the foregoing reasons, the district court’s order revoking bail is AFFIRMED. The
district court may revisit its decision to revoke bail at any time in light of new information.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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