“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

U.S. SECURITIES AND 

EXCHANGE COMMISSION,

 

v.

 Plaintiff,

JOHN J. BRAVATA, RICHARD J. 

TRABULSY, ANTONIO 

BRAVATA, BBC EQUITIES, LLC 

AND BRAVATA FINANCIAL 

GROUP, LLC

 Defendants,

and

SHARI A. BRAVATA,

 Relief Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO.: 2:09-cv-12950-

DML-VMM

MOTION IN LIMINE TO PROTECT

THE ELICITING OF TESTIMONY FROM 

RELIEF DEFENDANT, SHARI A. BRAVATA VIOLATIVE 

OF APPLICABLE SPOUSAL TESTIMONIAL PRIVILEGES 

AND MEMORANDUM OF LAW IN SUPPORT THEREOF

I. Preliminary Statement and Certification under LR 7.01(A)

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 1 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

On September 9, 2009, the Plaintiff, Securities and Exchange Commission 

(“SEC”) caused to be issued and served a subpoena compelling the testimony of 

the Relief Defendant, Shari A. Bravata (“Mrs. Bravata”) at the evidentiary 

hearing now scheduled in this cause for October 21-22, 2009. The Bravata 

Defendants hereby seek an order in limine from this Court that precludes the SEC 

and the Receiver from eliciting testimony or evidence from Mrs. Bravata that 

would violate either evidentiary privilege commonly available when spouses are 

compelled to testify in civil proceedings such as in the present case. In complying 

with the movants’ counsel’s obligation to confer with opposing counsel pursuant 

to Local Rule 7.1(A) on this issue, the undersigned counsel does hereby certify 

that although some general discussions were exchanged between Mr. Polish of 

the SEC and the undersigned on behalf of the Bravata Defendants, no clear 

consensus was evident in the exchange of positions between Messrs. Polish and 

Bartko prior to filing this motion. As a result, it is reasonably likely that the 

issues presented by this motion will arise during the course of Mrs. Bravata’s 

hearing testimony, making resolution of this evidentiary matter by an order in 

limine a far more efficient means of addressing the concerns held by the Bravata 

Defendants.

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 2 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

The Joint Rule 26(f) Scheduling Conference Report filed in this case on 

August 12, 2009, reflects that the SEC intends to call Mrs. Bravata as a witness at 

the hearing with respect to “[U]ses of investor funds; compliance with injunction 

and asset freeze; other matters set forth in her declaration.” Mrs. Bravata and the 

Defendant John J. Bravata (“Mr. Bravata”) have been legally married at all times 

relevant to the time frame referenced in the SEC Complaint and continue to be 

married. It is therefore justifiably anticipated by the Bravata Defendants that the 

SEC or Receiver will seek to elicit testimony from Mrs. Bravata at the hearing 

that is privileged by application of one or both “spousal privileges” recognized 

by Federal law. Since Mrs. Bravata has never provided any sworn testimony or 

other similar form of declaration in connection with the facts of this case, the 

SEC’s reference to questioning her about other matters set forth in her

declaration is also troublesome and could very well lead to the SEC seeking to 

elicit testimony from Mrs. Bravata otherwise privileged.

II. Applicable Spousal Privileges

Evidentiary privileges in Federal courts are governed by Federal Rule of 

Evidence 501, which states:

“the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as 

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 3 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

they may be interpreted by the courts of the United States in the light of 

reason and experience. However, in civil actions and proceedings, with 

respect to an element of a claim or defense as to which State law supplies 

the rule of decision, the privilege of a witness, person, government, State, 

or political subdivision thereof shall be determined in accordance with 

State law.”

As this Court has previously opined in Bila v. Radio Shack Corporation, 2004 

U.S. Dist. LEXIS 24649; 65 Fed. R. Evid. Serv. (Callaghan) 1093, Federal courts

have recognized two kinds of evidentiary privileges that apply to the testimony 

of spouses. The spousal immunity privilege, which exists only during the term of 

a valid marriage, protects one spouse from being compelled to testify against the 

other. This privilege belongs only to the testifying spouse and may not be 

asserted by the opposite spouse. Trammel v. United States, 445 U.S. 40, 53, 63 L. 

Ed. 2d 186, 100 S. Ct. 906 (1980); United States v. Sims, 755 F.2d 1239, 1240-41 (6th 

Cir. 1985). Here, Mrs. Bravata does intend to invoke her spousal immunity 

privilege when necessary and appropriate at the hearing. 

The second testimonial privilege protects confidential communications 

made by one spouse to the other during the marriage. It may be asserted by 

either spouse, and it survives the termination of the marriage. The three 

elements of this second testimonial privilege are: (1) a marriage recognized as 

valid by state law at the time of the communication; (2) the expressions must be 

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 4 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

intended by one spouse to convey a message to the other and (3) the communication must be made in confidence. See generally 2 Jack B. Weinstein and 

Margaret A. Berger, Weinstein's Evidence § 505[4] (1992). The third elementconfidentiality - is the essence of most evidentiary privileges, and when 

confidentiality ceases, the privilege no longer applies. 

As will be shown at the hearing on October 21-22, 2009, Mrs. Bravata will 

not be able to offer any direct, competent testimony concerning the matters 

asserted in the SEC Complaint or the operations and history of BBC Equities, 

LLC (“BBC”)—other than statements or information shared with her by her 

husband, Mr. Bravata. Mrs. Bravata is a work at home mother raising two small 

children and is only marginally involved in household expenses, bills, payments 

of family obligations and the like. She has no awareness of the intricacies of BBC 

except what statements may have been told to her by Mr. Bravata, most all of 

which were shared with her by Mr. Bravata as confidential communications 

between husband and wife.

On October 9, 2009, Mr. Bravata’s counsel conferred with the SEC 

requesting a stipulation that would make clear before the hearing that no 

testimony would be elicited from Mrs. Bravata at the hearing that would violate 

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 5 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

any spousal privilege applicable in this Court. The SEC, through Mr. Polish, 

responded: “We will not elicit testimony from Ms. Bravata regarding 

communications with her husband. If you would like to effectuate a stipulation 

along those lines, we are prepared to do so. Otherwise, you should seek 

whatever relief from the Court that you deem appropriate.”1 Counsel for the 

Bravata Defendants then sought more clarity from the SEC and requested that 

the stipulation include the statutory parameters of the provisions of the Michigan 

statutory spousal privileges codified in MCLA 600.2162 (or the provisions 

thereof). The SEC then responded with Mr. Polish indicating that, “[T]o the 

extent you are asking us to stipulate to more than not seeking testimony 

concerning communications among and between Mr. and Mrs. Bravata, “no.”

Consequently, after conferring with the SEC on this issue through an 

exchange of several email messages, it appears to the Bravata Defendants and 

Mrs. Bravata in particular, that the only aspect of Mrs. Bravata’s anticipated 

testimony the SEC agrees is off limits is testimony concerning communications 

between Mr. and Mrs. Bravata. This leaves the door too far open for the SEC to 

advocate that they are entitled to elicit testimony from Mrs. Bravata otherwise

 

1 The SEC’s position stated as such is deemed by the Bravata Defendants to be an 

indication that the relief sought in this motion is opposed by the SEC.

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 6 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

covered by one or both of the spousal privileges enunciated in Bila v. Radio Shack 

Corporation, supra. 

For example, the scope of the spousal immunity privilege is ordinarily 

described as a testimonial prohibition available to the testifying spouse that

protects one spouse from being compelled to testify against the other. This 

testimonial privilege is broader in scope than the second confidential marital 

communications privilege which requires the showing of the three elements cited 

above. In other words, the SEC should be prohibited from not only eliciting 

testimony from Mrs. Bravata that would evoke confidential communications 

between her and her husband, but the spousal immunity privilege protects Mrs. 

Bravata from being compelled to testify against her husband Mr. Bravata. Based 

upon the SEC’s stated position on this issue, the only limitation it is willing to 

accede to is that communications exchanged between Mr. and Mrs. Bravata on 

matters relevant to the subject matter contained in the SEC Complaint are 

prohibited. Due to this difference of interpretation on the scope of the spousal 

and confidential communication privileges, an order in limine is needed prior to 

Mrs. Bravata’s testimony is taken at the evidentiary hearing on October 21-22, 

2009.

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 7 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

Summarizing, Mr. and Mrs. Bravata seek an order in limine from this Court 

that clearly outlines the demarcation of the scope of both the spousal immunity 

privilege available to Mrs. Bravata and the joint marital communications 

privilege available to both spouses, which order would control the areas of 

testimony that the SEC or Receiver could elicit from Mrs. Bravata during the 

coming evidentiary hearing

Dated this 15th day of October, 2009.

Respectfully Submitted, 

By: /s/ Gregory Bartko

Law Office of Gregory Bartko, LLC

Gregory Bartko, Esq.

Michigan Bar No. P30052

Counsel for Bravata Defendants

3475 Lenox Road, Suite 400

Atlanta, GA 30326

Phone: 404-238-0550

Email: 

gbartko@securitieslawcounsel.com

 

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 8 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

U.S. SECURITIES AND 

EXCHANGE COMMISSION,

 

v.

 Plaintiff,

JOHN J. BRAVATA, RICHARD J. 

TRABULSY, ANTONIO 

BRAVATA, BBC EQUITIES, LLC 

AND BRAVATA FINANCIAL 

GROUP, LLC 

 Defendants,

and

SHARI A. BRAVATA,

 Relief 

Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO.: 2:09-cv-12950-

DML-VMM

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing MOTION IN 

LIMINE TO PROTECT THE ELICITING OF TESTIMONY FROM RELIEF

DEFENDANT, SHARI A. BRAVATA VIOLATIVE OF APPLICABLE SPOUSAL 

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 9 of 10
“The Securities Regulation Law Firm” 

3475 Lenox Road, Suite 400 ● Atlanta, GA 30326 ● Phone (404) 238-0550 ● Fax (866) 342-4092

Email: gbartko@securitieslawcounsel.com ● www.securitieslawcounsel.com

10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

TESTIMONIAL PRIVILEGES AND MEMORANDUM OF LAW IN SUPPORT 

THEREOF was filed electronically this 15th day of October, 2009 with the Clerk of 

the Court using CM/ECF. I also certify that the foregoing document is being 

served this day on all counsel of record and any pro se parties identified on the 

attached Service List via e-mail and U.S. mail, either via transmission of Notices 

of Electronic Filing generated by CM/ECF or via U.S. mail to those parties that 

have formally appeared of record but are who are not authorized to receive 

electronic Notices of Electronic Filing.

Respectfully Submitted,

By: /s/ Gregory Bartko

Law Office of Gregory Bartko, LLC

Gregory Bartko, Esq.

Counsel for Defendants

3475 Lenox Road, Suite 400

Atlanta, GA 30326

Telephone: (404) 238-0550

Case 2:09-cv-12950-DML-VMM Document 95 Filed 10/15/2009 Page 10 of 10