Filed: August 23, 2013 

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4298

(5:09-cr-00321-D-1)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY BARTKO,

Defendant - Appellant.

O R D E R

The Court amends its opinion filed August 23, 2013, as 

follows:

On page 17, in the citation to United States v. Bartko

slip op., “W.D.N.C.” is corrected to read “E.D.N.C.”

 On page 30, Part III, second paragraph, line 4, the 

spelling of “Jenks” is corrected to read “Jencks.”

For the Court – By Direction

 /s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4298

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY BARTKO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

Chief District Judge. (5:09-cr-00321-D-1)

Argued: May 17, 2013 Decided: August 23, 2013

Before KEENAN and FLOYD, Circuit Judges, and Henry E. HUDSON, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Affirmed by published opinion. Judge Floyd wrote the opinion, 

in which Judge Keenan and Judge Hudson concurred.

ARGUED: Donald Franklin Samuel, GARLAND, SAMUEL & LOEB, Atlanta, 

Georgia, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON 

BRIEF: Amanda R. Clark-Palmer, GARLAND, SAMUEL & LOEB, Atlanta, 

Georgia, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
2

FLOYD, Circuit Judge:

Appellant Gregory Bartko was charged by a superseding 

indictment with conspiracy to commit mail fraud, launder money 

instruments, engage in unlawful monetary transactions, make 

false statements, and obstruct proceedings of the Securities and 

Exchange Commission (SEC), in violation of 18 U.S.C. § 371 (Count 

One); mail fraud and aiding and abetting, in violation of 18 

U.S.C. §§ 1341 and 2 (Count Two through Count Five); sale of 

unregistered securities and aiding and abetting, in violation of 

15 U.S.C. §§ 77e, 77x, and 18 U.S.C. § 2 (Count Six); and making 

false statements to a federal agent in January and October 2009, 

in violation of 18 U.S.C. § 1001(a)(2) (Counts Seven and Eight). 

Before trial, and pursuant to the government’s motion, the 

district court dismissed Counts Seven and Eight, as well as two 

of the objects of the conspiracy in Count One—making false 

statements and obstructing SEC proceedings. After a thirteenday trial, the jury convicted Bartko of the remaining counts. 

Thereafter, Bartko filed four motions for a new trial, all 

of which the district court denied. The district court 

subsequently sentenced Bartko to 272 months’ imprisonment. This 

timely appeal followed. 

In his appeal, Bartko maintains that the district court 

erred in denying two of his motions for a new trial, improperly 

considered an ex parte sealed document submitted by the 
3

government, abused its discretion by not instructing the jury on 

accomplice/informant testimony and on multiple conspiracies, and 

improperly imposed Sentencing Guidelines enhancements based on 

the amount of loss, the number of victims, and Bartko’s status 

as a registered broker/dealer at the time of the offenses. We 

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. 

§ 3742(a). Discerning no reversible error, we affirm both 

Bartko’s conviction and sentence.

I.

From 2004 to 2005, Bartko was the leader and organizer of a 

financial scheme that involved securing money from investors to 

provide funding for two private equity funds, the Caledonian 

Fund and the Capstone Fund. John Colvin, Scott Hollenbeck,

Darryl Laws, Rebecca Plummer, and Levonda Leamon participated in 

the scheme. As a part of their scheme, the parties mailed, 

faxed, and e-mailed correspondence to one another and engaged in 

banking transactions. 

Bartko was a securities attorney, investment banker, and 

registered broker/dealer. Laws was also an investment banker 

who, along with Bartko, created the Caledonian Fund. Colvin was 

the president of Colvin Enterprises and a co-managing general 

partner with Scott Hollenbeck of Franklin Asset Exchange. 
4

Leamon and Plummer were financial advisors who owned and 

operated Legacy Resource Management (LRM). 

In January 2004, Bartko was seeking investors for the 

Caledonian Fund. On January 15, 2004, Colvin sent to Bartko a 

fax regarding an investment opportunity that one of Colvin’s

companies, Webb Financial Services, was offering. The articles 

of incorporation for the company were attached. They listed 

Scott Hollenbeck as the initial registered agent of Webb Group. 

These materials made fraudulent claims that the principal and 

interest were guaranteed and that the investments were insured. 

On January 15 and 16, 2004, Bartko performed a record check on 

Colvin with the National Association of Securities Dealers. On 

February 17, 2004, he made the same record check on Hollenbeck. 

According to those records, both had past allegations of forgery 

and both had been fired from securities-related jobs. 

Hollenbeck’s check also showed that his securities license had 

been suspended for violations of securities rules.

Bartko sent a fax to Laws on January 19, 2004, which 

detailed Colvin’s fraudulent fundraising methods. For example, 

one page of the materials stated that “[p]rincipal investment is 

secured & insured [and that the] [i]nterest rate declared is

guaranteed[.]” In a fax that Colvin sent to Bartko on February 

9, 2004, proposing an agreement between Franklin Asset Exchange 

and the Caledonian Fund, Hollenbeck was referred to in the 
5

materials as a “Co-Managing General Partner” of Franklin Asset 

Exchange and as “the founder and creator of both Franklin Asset 

Exchange, LLC and The Webb Group Financial Services, Inc.” 

Colvin ultimately agreed to raise $3 million for the 

Caledonian fund through the Franklin Asset Exchange. Although 

the March 30, 2004, agreement to raise the money was signed by 

Colvin, it was Hollenbeck who actually solicited and secured the 

money from the individual investors. 

In April 2004, the North Carolina Securities Regulatory 

Agency issued a cease and desist order directing Hollenbeck to 

stop selling securities in North Carolina. This arose from his 

involvement in a separate investment scheme regarding Mobile 

Billboards of America (Mobile Billboards). Bartko, along with 

his co-counsel, Wes Covington, provided legal representation to 

Hollenbeck on this matter. During the course of that 

representation, Hollenbeck provided Bartko with information 

concerning how he had sold the Mobile Billboards investments. 

Hollenbeck informed Bartko that he had promised investors that 

their money was guaranteed and insured. He also provided to 

Bartko a copy of his promotional materials, including an 

application for an insurance policy that he used to show that 

the investment was insured.

From January 15, 2004, to May 6, 2004, Hollenbeck 

fraudulently raised large amounts of money for the Caledonian 
6

Fund, as well as for other investments, from a total of 171 

investors. He then deposited the money into Franklin Asset 

Exchange or some similar account. The money was not separated 

but was instead comingled. He sent the money to various 

entities, as directed by Colvin.

Hollenbeck and Colvin raised $701,000 for the Caledonian 

Fund, which was wired to the Caledonian Fund on four separate 

occasions between February and May 2004. Bartko and Laws used 

the money to pay salaries and expenses. None of it was used for 

investments or loans. 

In late 2004, after Colvin failed to send Bartko the $3 

million that he had promised, Bartko terminated their 

relationship. In November 2004, the Caledonian Fund dissolved. 

The $701,000 in the fund was not returned to the investors.

Almost immediately after dissolution of the Caledonian 

Fund, Bartko began the Capstone Fund. Hollenbeck was the 

primary fundraiser. Nevertheless, on December 8, 2004, during a 

deposition with the SEC concerning Mobile Billboards, 

Hollenbeck was asked what investments he was currently selling. 

He failed to mention the Capstone Fund. Bartko and his cocounsel, Wes Covington, were at the deposition representing 

Hollenbeck, but neither one corrected Hollenbeck’s false 

statement.
7

Although securities law disallowed it, Hollenbeck continued 

selling securities and raising money for the Capstone Fund 

through fraudulent means. Moreover, some of the investors were 

not accredited or sophisticated investors, as required by 

securities law. To be an accredited investor, one’s net worth 

or net income must reach a certain threshold. 

On January 11, 2005, Bartko met with potential investors at 

LRM. Around the same time as this meeting, Bartko asked Plummer 

and Leamon whether LRM would receive money from the Capstone 

Fund’s investors and then send the money back to the Capstone 

Fund. Because the money that Hollenbeck had raised—over $1 

million at that point—was fraudulently obtained and because the 

Capstone Fund was an unregistered fund, Bartko wanted LRM to 

appear to be the investor. Plummer and Leamon agreed, and on 

January 19, 2005, they opened a bank account with TriStone Bank 

for the purpose of receiving the Capstone Fund money. TriStone, 

however, eventually closed their account and so, at Bartko’s 

suggestion, they opened an account with Wachovia.

Also on January 19, 2005, Bartko issued reimbursement 

checks to several investors. But then Bartko instructed 

Hollenbeck to have the investors receiving the reimbursements 

endorse the checks and return them to LRM. Bartko sent some of 

the checks to Hollenbeck to return to the investors because he 

did not have their addresses. Instead, Hollenbeck forged the 
8

signatures of the investors on the checks and embezzled the 

proceeds.

The money that was sent to LRM was returned to the Capstone 

Fund. Thus, with the exception of one individual, no refunds 

were actually made to the investors. All told, Bartko received 

$2,684,928.86 from forty Capstone Fund investors.

In February 2005, the North Carolina Secretary of State 

learned that Hollenbeck was continuing to sell investments for 

Bartko, and it advised the SEC of that fact. On March 14, 2005, 

Alex Rue, an attorney for the SEC, confronted Bartko. Bartko 

then filed an interpleader action in the Middle District of 

North Carolina on May 26, 2005, and ultimately returned ninetyfour percent of the Capstone Fund money to the court.

Bartko eventually stood trial for conspiracy to commit mail 

fraud, launder money instruments, and engage in unlawful 

monetary transactions (Count One); mail fraud and aiding and 

abetting (Count Two through Count Five); and sale of 

unregistered securities and aiding and abetting (Count Six). 

The district court dismissed Counts Seven and Eight, as well as 

two of the objects of the conspiracy in Count One—false 

statements and obstructing SEC proceedings. After a thirteenday trial, the jury convicted Bartko of the remaining counts. 

Bartko then filed four motions for a new trial. The 

district court denied them all in a comprehensive and well-
9

reasoned 120-page order. At the subsequent sentencing hearing, 

Bartko objected to several of the Sentencing Guidelines 

enhancements, including those based on the amount of loss, the 

number of victims, and Bartko’s status as a registered 

broker/dealer at the time of the offenses. The district court 

overruled the objections and sentenced Bartko to 272 months’

imprisonment. This appeal followed. 

II.

First, Bartko argues that the district court erred in 

denying two of his motions for a new trial. Rule 33 of the 

Federal Rules of Criminal Procedure provides, in relevant part, 

that “[u]pon the defendant’s motion, the court may vacate any 

judgment and grant a new trial if the interest of justice so 

requires.” Fed. R. Crim. P. 33. “We review the district 

court’s denial of a motion for a new trial under an abuse of 

discretion standard.” United States v. Wilson, 624 F.3d 640, 

660 (4th Cir. 2010).

A.

Bartko’s first motion for a new trial concerns a report on 

Internal Revenue Agent Scott Schiller’s interview with Judge 

Anderson Cromer, who presided over receivership litigation 

involving Webb Group and Franklin Asset Exchange as plaintiffs 
10

and Bull Mountain Project, Colvin, Colvin Enterprises, and 

others as defendants. Bartko and Covington had represented the 

plaintiffs and had obtained a substantial settlement. The 

government failed to give this report to Bartko until after 

trial. 

In the fact section of Bartko’s opening brief, he states 

the following:

This interview summary, referred to in Bartko’s new 

trial motions as the Judge Cromer “302,” revealed that 

the judge believed that Bartko had performed ethically 

and professionally in connection with the coal company 

litigation and that Bartko had made disclosure of his

prior relationship with Colvin, Hollenbeck and the 

proposed receiver. Because that information had not 

previously been furnished to the defense, the defense 

did not know that Judge Cromer’s testimony would have 

been favorable. He was, therefore, never called as a 

witness and the topic of the coal company litigation 

was never raised at trial. The jury never learned 

that Bartko’s efforts on behalf of Hollenbeck’s 

victims in other schemes resulted in a $20 

million recovery for the people he—Bartko—supposedly 

victimized.

The only mention that Bartko makes in the argument section of 

his opening brief, however, is that the interview report

“related to Mr. Bartko’s actual innocence of the charges in this 

case, because that information related to his behavior and state 

of mind, rather than the credibility of any particular witness.” 

Bartko also states that the government agreed “when it moved to 

exclude this evidence” that it “would have unfairly cast Bartko 

in a favorable light.”
11

After reading Bartko’s opening brief, it first appeared to 

us, as it did to the government, that Bartko was not raising 

this issue on appeal. But, then in his reply brief, buried in a 

footnote, he states that it is an issue in this appeal and that 

“this Brady violation [was] a component of his argument that the 

cumulative effect of the withheld evidence resulted in a trial 

that was unfair.” 

The argument section of an appellant’s opening brief must 

contain the “appellant’s contentions and the reasons for them, 

with citations to the authorities and parts of the record on 

which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). 

Because Bartko has failed in this regard, we consider this issue 

waived. See Wahi v. Charleston Area Med. Ctr., 562 F.3d 599, 

607 (4th Cir. 2009) (concluding that those issues on which the 

appellant failed to comply with the specific dictates of Rule 

28(a)(9)(A) were waived).

B.

In Bartko’s second motion for a new trial, he protests that 

the government allowed Scott Hollenbeck to testify falsely that 

he had not received any promises or inducements in exchange for 

his trial testimony. The Supreme Court long ago opined that “a 

State may not knowingly use false evidence, including false 

testimony, to obtain a tainted conviction.” Napue v. Illinois, 
12

360 U.S. 264, 269 (1959). “This is true regardless of whether 

the [g]overnment solicited testimony it knew or should have 

known to be false or simply allowed such testimony to pass 

uncorrected.” United States v. Kelly, 35 F.3d 929, 933 (4th 

Cir. 1994). A new trial is required when the government’s 

knowing use of false testimony could affect the judgment of the 

jury. See Giglio v. United States, 405 U.S. 150, 154 (1972). 

“We do not, however, automatically require a new trial whenever 

‘a combing of the prosecutors’ files after the trial has 

disclosed evidence possibly useful to the defense but not likely 

to have changed the verdict. . . .’” Id. (quoting United States 

v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968)). 

To obtain a new trial on the basis that Hollenbeck 

testified falsely, Bartko must demonstrate that Hollenbeck gave 

false testimony; he need not demonstrate that Hollenbeck 

committed perjury. “[D]ue process is violated not only where 

the prosecution uses perjured testimony to support its case, but 

also where it uses evidence which it knows creates a false 

impression of a material fact.” Hamric v. Bailey, 386 F.2d 390, 

394 (4th Cir. 1967). Hence, “[e]vidence may be false either 

because it is perjured, or, though not itself factually 

inaccurate, because it creates a false impression of facts which 

are known not to be true.” Id.
13

In early 2009, as part of its investigation of the Capstone 

Fund, as well as several other investment schemes, the United 

States Attorney for the Eastern District of North Carolina 

wanted to interview Scott Hollenbeck. Thus, the government

entered into a proffer agreement with him and his attorney, 

Scott Holmes. The agreement, directed to Holmes but signed by 

both Holmes and Hollenbeck, set forth the following: 

As you have indicated, your client, Mr. 

Hollenbeck, is interested in meeting with federal 

agents currently investigating the sale of numerous 

investments, including Webb Group, Franklin Asset 

Exchange, Disciples Trust, and Capstone. I have 

informed you that Mr. Hollenbeck is not a target of 

this investigation. The parties will schedule an 

interview of Mr. Hollenbeck to take place at the 

Federal Correctional Institution in Coleman, Florida. 

Mr. Hollenbeck, you, and the United States Attorney’s 

Office (USAO) agree as follows concerning the “ground 

rules” for this interview:

1. In any trial in this matter, the USAO will not 

offer into evidence in its case in-chief or at 

sentencing any statements made by Mr. Hollenbeck 

at the interview; provided, however, this 

Paragraph 1 shall not apply to any prosecution 

for false statements, obstruction of justice, or 

perjury that is based in whole or in part on 

statements made by Mr. Hollenbeck at the 

interview.

2. Notwithstanding Paragraph 1 above:

a. the USAO may use information derived 

directly or indirectly from statements made 

by Mr. Hollenbeck at the interview for the 

purpose of obtaining other evidence, and 

that evidence may be used in the prosecution 

and sentencing of Mr. Hollenbeck by the 

USAO; in any trial of this matter or at 

sentencing, the USAO may use statements made 
14

by Mr. Hollenbeck at the interview to crossexamine him if he testifies or to rebut any 

evidence offered by or on behalf of him.

3. This agreement is limited to statements made 

by Mr. Hollenbeck at the interview and does 

not apply to any other statements made by 

Mr. Hollenbeck at any other time. No 

understandings, promises, or agreements 

exist with respect to the meeting other than 

those set forth in this agreement, and none 

will be entered into unless memorialized in 

writing and signed by all parties.

4. The USAO will not share the statements made 

by Mr. Hollenbeck during the interview with 

any other state or federal prosecuting 

entity unless the prosecuting entity agrees 

to be bound by the terms of this agreement.

Please return the original signed copy of this letter 

agreement prior to the interview.

Scott Hollenbeck’s wife, Crystal Hollenbeck, also entered into a 

proffer agreement with the government. It is almost identical to 

her husband’s agreement.

At trial, on direct examination, the government asked 

Hollenbeck, “Mr. Hollenbeck, what if any promises has the 

government made to you about your testimony here today?” 

Hollenbeck responded, “None.” Despite any contrary suggestion 

by Bartko, our review of the record convinces us that this was a 

truthful statement. 

Bartko makes much of the fact that the agreements stated 

that the Hollenbecks were not targets of the investigation into 

the sale of investments, including Webb Group, Franklin Asset 
15

Exchange, Disciples Trust, and the Capstone Fund. From this, 

Bartko concludes that Hollenbeck had some sort of incentive to 

assist the government in its prosecution of Bartko. But that is 

not how we interpret the agreement. 

Paragraph three of the agreements make clear that “[n]o 

understandings, promises, or agreements exist[ed] with respect 

to the meeting other than those set forth in th[e] agreement[s], 

and none will be entered into unless memorialized in writing and 

signed by all parties.” Because nothing in the agreements 

suggests that the Hollenbecks not being a target was conditioned 

on their participation in the investigative interviews, or that 

they would not be a target in the future, we decline to graft 

such a provision into the agreements. 

Therefore, Hollenbeck’s answer that he had not been 

promised anything in return for his testimony at trial was true. 

But, his answer to the follow-up question by his counsel was 

not. During cross-examination of Hollenbeck, Bartko’s counsel 

asked, “Now, one of the things that you said when you took the 

stand was that the government has made you no promises, correct? 

You said that?” Hollenbeck replied, “That is exactly right.” 

Then defense counsel followed up: “And the government has not, 

as of this time, made you any promises, have they?” Hollenbeck 

answered, “They have not.” The district court held that 

Hollenbeck’s answer to this question was not false. However, it 
16

provided an alternative analysis on the assumption that 

Hollenbeck’s testimony on this point was false. 

From our review of the record, we conclude that the 

government had made a promise to Hollenbeck. In fact, it made 

to him several promises concerning how the information that he 

gave at the investigatory interview would and would not be used 

against him. And, because the government made those promises, 

it had a duty to correct Hollenbeck’s answers when he testified

falsely that it had not made any promises. But this it

regrettably failed to do. Therefore, we must now decide whether 

that testimony could have affected the jury’s judgment. 

Had Hollenbeck testified truthfully when asked whether the 

government had made any promises to him up to that time, Bartko 

arguably could have used that fact to impeach Hollenbeck. But, 

having made an exhaustive review of the record, we do not think 

that impeachment could have made an iota of difference in the 

jury’s final judgment. As explained by the district court, 

[d]efense counsel thoroughly impeached Hollenbeck on 

the subject of bias in favor of the government and on 

Hollenbeck’s motive to lie to please the government. 

Defense counsel thoroughly impeached Hollenbeck 

concerning his desire to avoid prosecution for his 

fraud involving Colvin, Webb Group, Franklin Asset 

Exchange, Disciple Trust, the Caledonian Fund, and the 

Capstone Fund. Defense counsel thoroughly impeached 

Hollenbeck about his desire to receive a cooperationbased reduction in his 168-month prison sentence

stemming from the Mobile Billboards fraud. 

Furthermore, defense counsel explored at great length 

and with absolutely devastating effect Hollenbeck’s 
17

character for untruthfulness. Defense counsel 

recounted the many lies Hollenbeck had told and the 

many frauds he had committed throughout his life. In 

fact, this court has never seen a witness more 

thoroughly impeached than Hollenbeck. In the face of 

such blistering impeachment and the other evidence in 

the trial, one more false statement by Hollenbeck 

could not have possibly affected the jury’s judgment.

United States v. Bartko, No. 5:09-CR-321-D, slip op. at 101-02 

(E.D.N.C. Jan. 17, 2012) (citations omitted). Consequently, the 

district court did not err in refusing to grant to Bartko a new 

trial on this issue.

C.

In Bartko’s second motion for a new trial, he also contends 

that the government’s failure to disclose the agreements between 

it and Scott and Crystal Hollenbeck amounts to a Brady

violation. 

As this Court recognized in United States v. Wilson, 624 

F.3d 640 (4th Cir. 2010):

In Brady, the Supreme Court held “that the suppression 

by the prosecution of evidence favorable to an accused 

upon request violates due process where the evidence 

is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the 

prosecution.” 373 U.S. at 87, 83 S. Ct. 1194. In 

order to prove that the [g]overnment’s failure to 

tender certain evidence constitutes a Brady violation, 

the burden rested on [the defendant] to show that the 

undisclosed evidence was (1) favorable to him either 

because it is exculpatory, or because it is 

impeaching; (2) material to the defense, i.e., 

“prejudice must have ensued”; and (3) that the 

prosecution had materials and failed to disclose them. 
18

United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 

2001).

Id. at 660-661. “Evidence is ‘exculpatory’ and ‘favorable’ if 

it ‘may make the difference between conviction and acquittal’ 

had it been ‘disclosed and used effectively.’” Id. at 661 

(quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). 

And, it is “‘material’ if it is ‘likely to have changed the 

verdict.’” Id. (quoting Moseley v. Branker, 550 F.3d 312, 318 

(4th Cir. 2008)). “It is an abuse of discretion for the 

district court to commit a legal error—such as improperly 

determining whether there was a Brady violation—and that 

underlying legal determination is reviewed de novo.” Wilson, 

624 F.3d at 661 n.24.

There is no dispute that factors one and three of the test 

set forth in Stokes are satisfied—namely that the proffer 

agreements were favorable to Bartko because they were impeaching 

and that the prosecution had the materials and failed to 

disclose them. See Stokes, 261 F.3d at 502. Thus, our inquiry 

here will focus on only the second element: whether the 

agreements were material to the defense. In other words, was 

Bartko prejudiced by the non-disclosure? See id.

The district court held that the Hollenbecks’ proffer 

agreements constituted cumulative impeachment evidence. In the 

alternative, it stated that there is no reasonable probability 
19

that the jury’s verdict would have been different if the 

government had disclosed the agreements. 

If Bartko had had the Hollenbecks’ proffer agreements, he 

could have used them in an attempt to attack Scott Hollenbeck’s

credibility. But, as the district court noted, “Bartko’s 

impeachment of Hollenbeck was devastatingly thorough and 

thoroughly devastating.” Bartko, No. 5:09-CR-321-D, slip op. at 

103. It encompassed:

(1) Hollenbeck’s felony convictions, (2) his bias in 

favor of the government due to his desire to receive a 

Rule 35 motion and a reduction in his 168-month prison 

sentence for his involvement in Mobile Billboard’s 

fraud, (3) his bias in favor of the government due to 

his desire to avoid being prosecuted for the fraud 

that he committed with Colvin, Webb Group, Franklin 

Asset Exchange, Disciples Trust, and others, (4) his 

bias in favor of the government due to his desire to 

avoid being prosecuted for the fraud he committed 

while raising money for the Caledonian Fund and the 

Capstone Fund, (5) myriad specific instances of lying, 

fraud, and forgery throughout Hollenbeck’s adult life, 

(6) prior inconsistent statements to prosecutors, (7) 

contradictions within his trial testimony, and (8) his 

inability to recall certain facts.

Bartko, No. 5:09-CR-321-D, slip op. at 107-08. Thus, the 

proffer agreements would have been cumulative and, as such, we 

are unable to fathom how the jury’s knowing about them could 

have further damaged Hollenbeck’s credibility. The “proffer

agreement[s] had nothing to add and would not have shed any new 

light on the depth of Hollenbeck’s wrongdoing, the magnitude of 

his incentive to cooperate with the government, or the absence 
20

of his credibility.” Bartko, No. 5:09-CR-321-D, slip op. at 

103. Hence, we are confident that there is no reasonable 

probability that the jury would have reached a different verdict 

if Bartko had been given and effectively used the Hollenbecks’

proffer agreements. 

D.

In Bartko’s third motion for a new trial, he contends that 

the government committed a Brady violation in failing to 

disclose the tolling agreements that it had entered into in 2010 

with Levonda Leamon. The agreements tolled the statute of 

limitations “for potential federal criminal violations regarding 

Ms. Leamon’s involvement in the fraudulent sale of investments 

during the year 2005, including conspiracy, mail fraud, the sale 

of unregistered securities, and money laundering.” The purpose 

of the agreements was “to allow additional time for the parties 

to present facts and discuss the matter . . . [and] to evaluate 

and discuss potential resolutions to [the] case.” The January 

5, 2010, agreement tolled the statute of limitations on Leamon’s 

crimes until July 5, 2010; and the July 2, 2010, agreement 

tolled the statute of limitations until December 5, 2010. It 

appears from the record that, without these agreements, the 

statute of limitations on some of Leamon’s alleged crimes would 

have run before she gave her testimony at Bartko’s trial.
21

As already enumerated, we consider three factors in 

determining whether a Brady violation has occurred: whether the 

undisclosed evidence was “(1) favorable to [the defendant]

either because it is exculpatory, or because it is impeaching; 

(2) [whether the evidence was] material to the defense, i.e., 

‘prejudice must have ensued’; and (3) [whether] the prosecution 

had materials and failed to disclose them.” Stokes, 261 F.3d at 

502. The government acknowledges that the Leamon agreements are 

impeaching and that it had the materials but failed to disclose 

them. Thus, as before, because factors one and three are met, 

we need focus on only the second factor—the materiality factor.

We “discard[] as immaterial . . . undisclosed impeachment 

evidence where it was cumulative of evidence of bias or 

partiality already presented ‘and thus would have provided only 

marginal additional support for [the] defense.’” United States

v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011) (second 

alteration in original) (quoting Douglas v. Workman, 560 F.3d 

1156, 1174 (10th Cir. 2009)).

“In general, evidence whose function is impeachment may be 

considered to be material where the witness in question supplied 

the only evidence linking the defendant to the crime.” United 

States v. Avellino, 136 F.3d 249, 256 (2nd Cir. 1998). 

Likewise, we may find impeaching evidence to be “material where 

the witness supplied the only evidence of an essential element 
22

of the offense.” Id. at 257. “This is especially true where 

the undisclosed matter would have provided the only significant 

basis for impeachment.” Id..

Leamon testified at trial that she was a seventy-year-old 

high school graduate and former flight attendant. She became a 

co-owner of LRM in 2003 or 2004 with her role primarily being 

community involvement. She also attested to Bartko’s use of 

LRM’s office for the January 11, 2005, meeting and how LRM

received money from the Capstone Fund, as well as Hollenbeck’s 

other investors, and then sent the money back to Capstone. 

According to Leamon, she spoke with Hollenbeck and Bartko about 

pooling the money that came in from investors and the potential 

round trip of the refund checks as the investors endorsed them 

to LRM. Leamon also stated that LRM received a six-percent 

commission from the Capstone Fund. 

Leamon further testified about LRM’s process of mailing 

statements and letters to investors, as well as corrected 

statements and letters, the closing of the account at TriStone 

Bank and the opening of an account with, as Bartko put it, “a 

larger bank like a Wachovia.”

As the district court noted, “This testimony served 

primarily as summary evidence of [LRM’s] bank activity, 

mailings, and meetings, which was corroborated by substantial 

documentary evidence, the testimony of victims, the testimony of 
23

Plummer, and the testimony of Bartko.” Bartko, No. 5:09-CR-321-

D, slip op. at 111. “In short, Bartko’s admissions and a 

mountain of other evidence independently corroborate Leamon’s 

testimony.” Id. at 112. As such, Leamon’s testimony was not 

material. And, because it was not material, the district court 

did not err in its refusal to grant Bartko a new trial on this 

issue. 

E.

Although “courts of necessity examine undisclosed evidence 

item-by-item, their materiality determinations must evaluate the 

cumulative effect of all suppressed evidence to determine 

whether a Brady violation has occurred.” United States v. 

Ellis, 121 F.3d 908, 916 (4th Cir. 1997). When “the net effect 

of the evidence withheld by the [government] in [a] case raises 

a reasonable probability that its disclosure would have produced 

a different result, [the defendant] is entitled to a new trial.” 

Kyles v. Whitley, 514 U.S. 419, 421-22 (1995). “A reasonable 

probability does not mean that the defendant ‘would more likely 

than not have received a different verdict with the evidence,’

only that the likelihood of a different result is great enough 

to ‘undermine[] confidence in the outcome of the trial.’” Smith 

v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Kyles, 514 U.S. at 

434).
24

Here “the likelihood of a different result is [not] great 

enough to ‘undermine[] confidence in the outcome of [Bartko’s]

trial.’” See id. As the district court aptly noted, 

In so finding, the court stresses that Bartko’s case 

was not a close one. The trial record reveals 

overwhelming evidence of Bartko’s guilt. The jury 

carefully heard the evidence over a three-week period. 

The jury received detailed jury instructions. After 

deliberating approximately four hours, the jury 

unanimously convicted Bartko on all six counts.

. . . .

Circumstantial this case was; tenuous it absolutely 

was not. The mountain of evidence marshaled against 

Bartko demonstrated his guilt beyond any shadow of a 

doubt. Moreover, if the jury had had any doubts, 

Bartko’s testimony destroyed them. The jury was 

permitted not only to disbelieve Bartko’s testimony, 

but to believe the opposite.

Bartko, No. 5:09-CR-321-D, slip op. at 118. Therefore, having 

reviewed the omitted evidence “in the context of the entire 

record.” United States v. Agurs, 427 U.S. 97, 112 (1976), and 

finding that there is no reasonable probability that the 

disclosure of the withheld evidence or the correction of 

Hollenbeck’s false testimony could have produced a different 

result, we conclude that the district court did not err in 

refusing to grant Bartko a new trial. 

F.

Having analyzed the Brady and Giglio issues that Bartko 

raises, we pause here to address the discovery practices of the 
25

United States Attorney’s office in the Eastern District of North 

Carolina.1 A cursory review of this Court’s opinions reveals 

recent consideration of at least three cases involving discovery 

abuse by government counsel in this district. See, e.g., United 

States v. Flores-Duran, No. 11-5167, 2013 WL 3286248, *2-4 (4th 

Cir. July 1, 2013)2 (noting that (1) “[d]uring the week prior to 

trial, . . . the [g]overnment sent over one thousand pages of 

additional discovery, the bulk of which was due no later than 

fourteen days prior to trial” and that the government argued its 

“discovery violation” was excusable because it “misread[] . . . 

the discovery order; a power outage [occurred] at the courthouse 

in Raleigh; and [it made a] last minute decision to present 

certain evidence” and (2) that on the Saturday immediately prior 

to the Monday on which trial was to begin, the government faxed 

key information obtained approximately twenty-four hours earlier 

to defense counsel’s office, but it did nothing to ensure that 

counsel received the fax, even though it sent the information 

 1 We note that the current United States Attorney for the 

Eastern District of North Carolina did not assume office until 

2011, which is after some of the conduct described herein 

occurred. 

2 We recognize that unpublished cases have no precedential 

value in this circuit. We rely on them here not for their legal 

conclusions, but only to demonstrate that certain conduct has 

occurred repeatedly.
26

outside of normal business hours); United States v. Burkhardt, 

484 F. App’x 801, 802 (4th Cir. 2012) (considering a defendant’s 

appeal of his civil commitment as a sexually dangerous person 

and citing as a “matter of concern” the government’s failure to 

disclose prior to the commitment hearing that one of the 

defendant’s victims would testify); United States v. King, 628 

F.3d 693, 701-04 (4th Cir. 2011) (vacating and remanding the 

defendant’s conviction for felony possession of a firearm 

because the government “specifically rebuffed both . . . written 

and oral demands [by the defendant] that it disclose” 

potentially exculpating grand jury testimony and “refused to 

disclose” the testimony, even after the district court 

“suggest[ed] that it do so”). And this case, which confronts us 

with three alleged constitutional violations—two instances of 

withholding discoverable evidence and one choice to leave 

uncorrected a witness’s false testimony—only adds to the list.

Mistakes happen. Flawless trials are desirable but rarely 

attainable. Nevertheless, the frequency of the “flubs” 

committed by this office raises questions regarding whether the 

errors are fairly characterized as unintentional. Cf. Oral 

Argument at 24:50-25:10, Flores-Duran, 2013 WL 3286248 (No. 11-

5167), available at http://www.ca4.uscourts.gov/OAaudioop.htm. 

(referencing the government’s late disclosure of pages of 

discovery in violation of the judge’s discovery order and 
27

stating, “This is a repeat offense by the government. The order 

is entered by the court requiring disclosure by a certain date, 

and the government simply ignores it. And their explanation for 

ignoring it is, ‘I missed it. So what. There’s no prejudice.’ 

And it just happens again and again.”). Moreover, the 

government’s responses to queries regarding its practices are 

less than satisfactory. For example, in this case, when asked 

at oral argument about its failure to correct Scott Hollenbeck’s 

testimonial misstatement regarding promises he had received, the 

government suggested that at the time Hollenbeck made the 

misstatement, trial counsel had no recollection of the promises 

made to him. But as Judge Keenan aptly noted, such an idea

“just strains credulity.” Oral Argument at 21:54-21:56, United 

States v. Bartko (No. 12-4298), available at

http://www.ca4.uscourts.gov/OAaudiotop.htm. Similarly artless 

responses have been given in other cases. See, e.g., Oral 

Argument at 11:20-14:30, Flores-Duran, 2013 WL 3286248 (No. 11-

5167), available at http://www.ca4.uscourts.gov/OAaudiotop.htm. 

And here, when we gave counsel an opportunity to correct her 

farfetched assertion, she refused. Faced with such behavior, we 

must conclude that this office is uninterested in placating 

concerns about its practices. 

As detailed above, our confidence in the jury’s conviction 

of Bartko was not undermined by the government’s misconduct in 
28

this case. And such is the result in many cases. Remedies 

elude defendants because discovery violations ultimately prove 

immaterial to the verdict. But that is not the true problem. 

The problem is that the government appears to be betting on the 

probability that reams of condemning evidence will shield 

defendants’ convictions on appeal such that at the trial stage, 

it can permissibly withhold discoverable materials and ignore 

false testimony. Make no mistake, however. We may find such 

practices “harmless” as to a specific defendant’s verdict, but 

as to litigants in the Eastern District of North Carolina and 

our justice system at large, they are anything but harmless. 

“No [one] in this country is so high that [she or] he is above 

the law. No officer of the law may set that law at defiance 

with impunity. All the officers of the government, from the 

highest to the lowest, are creatures of the law and are bound to 

obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). The 

law of this country promises defendants due process, U.S. Const. 

amend. V, and the professional code to which attorneys are 

subject mandates candor to the court, see Model Rules of Prof’l 

Conduct R. 3.3., and fairness to opposing parties, see id. R.

3.4. Yet the United States Attorney’s office in this district 

seems unfazed by the fact that discovery abuses violate 

constitutional guarantees and misrepresentations erode faith 

that justice is achievable. Something must be done. 
29

We urge the district court in the Eastern District of North 

Carolina to meet with the United States Attorney’s Office of 

that district to discuss improvement of its discovery procedures 

so as to prevent the abuses we have referenced here. Moreover, 

if this sort of behavior continues in subsequent cases, this 

Court may wish to require that the United States Attorney for 

the Eastern District of North Carolina, as well as the trial 

prosecutor, be present at oral argument so that the panel can 

speak directly to her or him about any alleged misconduct. 

Sanctions or disciplinary action are also options. 

To underscore our seriousness about this matter, and to 

ensure that the problems are addressed, we direct the Clerk of 

Court to serve a copy of this opinion upon the Attorney General 

of the United States and the Office of Professional 

Responsibility for the Department of Justice. The transmittal 

letter should call attention to this section of the opinion.

We do not mean to be unduly harsh here. But “there comes a 

point where this Court should not be ignorant as judges of what 

we know as men [and women].” Rumsfeld v. Padilla, 542 U.S. 426, 

465 n.10 (2004) (Stevens, J., dissenting) (quoting Watts v. 

Indiana, 338 U.S. 49, 52 (1949)). 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 
30

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.

III.

Next, Bartko contends that the district court improperly 

considered an ex parte sealed document submitted by the 

government. Bartko had filed a motion asking the district court 

to unseal the document, but the court denied his motion. 

At our request, the government provided to us a copy of the 

sealed document, which asks the district court to make an in 

camera review of grand jury testimony in another case to 

determine whether that testimony contained any Jencks materials. 

The district court concluded that the sealed document did not, 

and we agree. Thus, we need not decide whether the district 

court erred in considering the document in that it caused no 

harm to Bartko.

IV.

Bartko also maintains that the district court erred by not 

instructing the jury on accomplice/informant testimony and on 

multiple conspiracies. A district court’s “decision to give (or 

not to give) a jury instruction . . . [is] reviewed for abuse of 

discretion.” United States v. Russell, 971 F.2d 1098, 1107 (4th 
31

Cir. 1992). A district court’s decision not to give a requested 

instruction by the criminal defendant amounts to reversible

error only if the proffered instruction: (1) was correct, (2) 

was not substantially covered by the charge that the district 

court actually gave to the jury, and (3) involved some point so 

important that the failure to give the instruction seriously 

impaired the defendant’s defense. United States v. Lewis, 53 

F.3d 29, 32 (4th Cir. 1995). Even if these factors are met, 

however, failure to give the defendant’s requested instruction 

is not reversible error unless the defendant can show that the 

record as a whole demonstrates prejudice. See Ellis, 121 F.3d 

at 923.

A.

Bartko complains that the district court abused its 

discretion in its refusal to instruct the jury that it “should 

consider the testimony of Hollenbeck, Leamon and Plummer with 

great care and scrutiny.” It appears that Bartko asked for an 

instruction regarding the testimony of an accomplice, informer,

or witness with immunity. But, the district court declined and 

gave the following instruction instead:

You, as jurors, are the sole and exclusive judges of 

the credibility of each of the witnesses called to 

testify in this case, and only you can determine the 

importance or weight that their testimony deserves. 

After making your assessment concerning the 
32

credibility of a witness, you may decide to believe 

all of that witness’[s] testimony, only a portion of 

it, or none of it.

In making your assessment of each witness, you 

should carefully scrutinize all of the testimony given 

by each witness, the circumstances under which each 

witness has testified, and all of the other evidence 

which tends to show whether a witness, in your 

opinion, is worthy of belief.

Consider each witness’[s] intelligence, motive to 

falsify, state of mind, and appearance and manner 

while on the witness stand. Consider each witness’[s]

ability to observe the matters as to which he or she 

testified and consider whether he or she impresses you 

as having an accurate memory or recollection of these 

matters. Consider also any relation each witness may 

bear to either side of the case, the manner in which 

each witness might be affected by your verdict, and 

the extent to which, if at all, each witness is either 

supported or contradicted by other evidence in the 

case.

This instruction certainly encompasses any specific 

instruction that the jury “should consider the testimony of 

Hollenbeck, Leamon and Plummer with great care and scrutiny.”

And, as detailed herein, the record fails to support any 

argument that the three were promised something in exchange for 

their testimony. Thus, in our judgment, we are unable to say 

that the district court’s decision denying Bartko’s request to 

give an accomplice/informer instruction was an abuse of 

discretion in that Bartko was not prejudiced by the omission. 
33

B.

Bartko also insists that the district court erred in 

refusing to give his requested multiple conspiracy charge. “A 

court need only instruct on multiple conspiracies if such an 

instruction is supported by the facts.” United States v. Mills, 

995 F.2d 480, 485 (4th Cir. 1993). Hence, “[a] multiple 

conspiracy instruction is not required unless the proof at trial 

demonstrates that appellants were involved only in ‘separate 

conspiracies unrelated to the overall conspiracy charged in the 

indictment.’” United States v. Kennedy, 32 F.3d 876, 884 (4th 

Cir. 1994) (quoting United States v. Castaneda-Cantu, 20 F.3d 

1325, 1333 (5th Cir. 1994)). And, even if one overarching 

conspiracy is not evident, the district court’s failure to give 

a multiple conspiracies instruction is reversible error only 

when the defendant suffers substantial prejudice as a result. 

United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996). For 

us to find such prejudice, “the evidence of multiple 

conspiracies [must have been] so strong in relation to that of a 

single conspiracy that the jury probably would have acquitted on 

the conspiracy count had it been given a cautionary multipleconspiracy instruction.” Id.

Bartko proposed that the district court give the following 

multiple conspiracy charge:
34

You must determine whether the conspiracy charged 

in the indictment existed, and, if it did, whether the 

defendant was a member of it. If you find that the 

conspiracy charged did not exist, then you must return 

a not guilty verdict, even though you find that some 

other conspiracy existed. If you find that a 

defendant was not a member of the conspiracy charged 

in the indictment, then you must find that defendant 

not guilty, even though that defendant may have been a 

member of some other conspiracy. 

According to Bartko, “the [g]overnment’s evidence, at best, 

would show that there were two separate and independent 

conspiracies: the Caledonian Fund and Capstone Fund. . . . 

There was no testimony that the activities of either fund 

overlapped or coexisted. The only connection between the Funds 

was Bartko.”

But, “a single overall conspiracy can be distinguished from 

multiple independent conspiracies based on the overlap in

actors, methods, and goals.” United States v. Stockton, 349 

F.3d 755, 762 (4th Cir. 2003). Here, we have all three. The 

actors in both conspiracies were the same: Bartko, Franklin 

Exchange, and Scott Hollenbeck. The methods of investor 

recruitment and the handling of their money were also the same. 

And, the goals of raising money for investing and personal gain 

were the same. Moreover, we are unable to say that “the 

evidence of multiple conspiracies was so strong in relation to 

that of a single conspiracy that the jury probably would have 

acquitted on the conspiracy count had it been given a cautionary 
35

multiple-conspiracy instruction.” Tipton, 90 F.3d at 883. 

Hence, we are unconvinced that the district court committed 

reversible error in its refusal to give a multiple conspiracy 

charge. 

 

V.

Bartko next complains that the district court improperly 

imposed Sentencing Guidelines enhancements based on the amount 

of loss, the number of victims, and his status as a registered 

broker/dealer at the time of the offenses. When deciding 

whether the district court properly applied the Guidelines, “we 

review the court’s factual findings for clear error and its 

legal conclusions de novo.” United States v. Allen, 446 F.3d 

522, 527 (4th Cir. 2006). The district court’s decision 

concerning a role adjustment is a factual determination, 

reviewable for clear error. United States v. Kellam, 568 F.3d 

125, 147-48 (4th Cir. 2009). “A finding of fact is clearly 

erroneous when, ‘although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed.’” In re 

Mosko, 515 F.3d 319, 324 (4th Cir. 2008) (quoting United States 

v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
36

A.

Bartko argues that the district court erred in determining 

the amount of loss attributed to him. The district court 

imposed an eighteen-level increase to his base offense level 

pursuant to U.S.S.G. § 2B1.1(b)(1)(J) (providing an eighteenlevel increase for a loss of more than $2,500,000). 

But Bartko claims that he should have been able to take 

advantage of a Guidelines-provided credit against loss for the 

amount of money he caused to be returned “to the victim[s] 

before the offense was detected.” U.S.S.G. § 2B1.1 cmt.

n.3(E)(i). The Guidelines provide, however, that “[t]he time of 

detection of the offense is the earlier of (I) the time the 

offense was discovered by a victim or a government agency; or 

(II) the time the defendant knew or reasonably should have known 

that the offense was detected or about to be detected by a 

victim or government agency.” Id.

First, Bartko contends that none of the refund checks 

should be counted in the loss amount. But, as detailed above, 

and as observed by the district court during the sentencing 

hearing, “the part [of the refund checks] that wasn’t embezzled 

ended up being filtered back through LRM as part of the 

conspiracy,” with the exception of investor Danny Briley, who 

decided not to endorse his refund check over to LRM. Thus, 
37

because the money was not ultimately returned to the investors, 

the district court did not clearly err on this point.

Second, Bartko avers that the loss amount should be reduced 

by the money that was returned to the investors through the 

interpleader. As noted above, the SEC knew of Bartko’s offense 

when Alex Rue, an attorney from that office, met with him on 

March 14, 2005. But, Bartko did not file his interpleader 

action until after that, on May 26, 2005. Consequently, he is 

unable to avail himself of Guidelines-provided credit against 

loss for the amount of money he caused to be returned “to the 

victim[s] before the offense was detected.” U.S.S.G. § 2B1.1 

cmt. n.3(E)(i). Thus, the district court did not err in 

overruling Bartko’s objection to this enhancement. 

B.

Bartko also avers that the district court erred by finding 

that there were more than fifty victims of his crimes. Bartko 

posits “that none of the money invested in Caledonian should be 

counted towards [his] loss amount . . . . Therefore, the number 

of victims is limited to those people who invested in Capstone, 

which is fewer than 50.” The import of this objection is that, 

under U.S.S.G. § 2B1.1(b)(2)(B), the district court is to impose 

a four-level enhancement if the offense that the defendant was 

convicted of “involved 50 or more victims.” The commentary 
38

accompanying this Guideline provides, in relevant part: 

“‘Victim’ means . . . a person who sustained any part of the 

actual loss determined under subsection (b)(1) [the amount of 

loss chart].” U.S.S.G. § 2B1.1 cmt. n.1. Neither party 

disputes that there were at least thirty-nine investors in 

Capstone. So, we are left to decide if there were at least 

eleven investors in Caledonian. We think that there were. 

As we have already observed, from January 15, 2004, to May 

6, 2004, Hollenbeck fraudulently raised large amounts of money 

from a total of 171 investors for the Caledonian Fund, as well 

as other investments. The money was not separated, but was 

comingled. He sent the money to various entities, including the 

Caledonian Fund, as directed by Colvin.

If one’s money is combined with other funds and, as here, 

$701,000 is lost from the total, then each individual or entity

who contributed to the total loses a pro-rata share of her 

contribution. And, because each of those who contributed

“sustained [a] part of the actual loss determined under 

subsection (b)(1),” id., they are a victim pursuant to U.S.S.G. 

§ 2B1.1(b)(2)(B). Accordingly, the district court did not 

commit clear error in its refusal to sustain Bartko’s objection 

to the imposition of this enhancement. 

 
39

C.

Finally, Bartko asserts that the district court erred in 

imposing an enhancement pursuant to U.S.S.G. § 2B1.1(b)(18)(A) 

inasmuch as, according to him, he was part-owner of a registered 

broker-dealer, but it was not used to commit the crime.

Pursuant to U.S.S.G. § 2B1.1(b)(18), “[i]f the offense 

involved . . . a violation of securities law and, at the time of 

the offense, the defendant was . . . a registered broker or 

dealer, or a person associated with a broker or dealer[,] . . . 

increase by 4 levels.” The accompanying comment to this 

Guideline defines a “registered broker or dealer” as “a broker 

or dealer registered or required to register.” U.S.S.G. § 2B1.1 

cmt. n.14(A) (incorporating 15 U.S.C. § 78c(a)(48)).

Without citation, Bartko maintains that “[t]he purpose of 

this enhancement is not to increase the punishment for anybody 

who happened to have a broker-dealer license who commits a 

securities law violation.” He is mistaken. The meaning of the 

Guideline is clear. Under § 2B1.1(b)(18), the district court is 

to impose a four-level enhancement when a broker or dealer’s 

criminal offense involves a securities law violation. There is 

no dispute that Bartko was a broker and that his offense 

involved a securities violation. Thus, the four-level 

enhancement was proper. 
40

D.

The government states that, even if we find any procedural 

sentencing error in our review, the error is harmless. But, 

because we find no error in the district court’s sentencing of 

Bartko, we need not engage in a harmless error review. 

VI.

For the foregoing reasons, we affirm Bartko’s conviction 

and sentence.

The Clerk of Court shall serve a copy of this opinion upon 

the Attorney General of the United States and the Office of 

Professional Responsibility for the Department of Justice. The 

transmittal letter should call attention to Section II(F) of 

this opinion.

AFFIRMED