United States v. David Mark
2015 U.S. App. LEXIS 13361
| 9th Cir. | 2015Background
- Government promised Mark and Brown immunity in exchange for cooperation in a mortgage-fraud investigation.
- Pugh interview (2008) and later February 2011 call memorialized, suggesting informal immunity agreements.
- August 2011 target letter informed Mark he faced indictment; Mark hired counsel and immunity deal not mentioned in plea negotiations.
- Prosecution asserted a July 2011 phone call (with two ASAs and an FBI agent) as breach; no contemporaneous notes or records of the call.
- District court credited prosecutors and denied dismissal; later evidence showed July call records did not exist, leading to appeal.
- Court remands with instructions to dismiss the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mark breached the immunity agreement by the July 2011 call | Mark contends no July call occurred; breach not proven | Prosecutors contend the July call breached the deal | Yes, breach not proven; remand to dismiss |
| Whether the district court abused its discretion in denying reconsideration | Record showing July-call inconsistency requires reconsideration | Record supported initial ruling without new evidence | Yes, abuse of discretion; remand for dismissal |
| Whether absence of documentation undermines breach proof | Documentation should exist to support breach | Gaps do not prove nothing happened | Yes, documentation required; remand improper without further hearing |
Key Cases Cited
- United States v. Carrillo, 709 F.2d 35 (9th Cir.1983) (government bears burden to prove breach of immunity)
- United States v. Fitch, 964 F.2d 571 (6th Cir.1992) (burden to prove breach by preponderance)
- United States v. Packwood, 848 F.2d 1009 (9th Cir.1988) (breach proof requires preponderance; immunity deals)
- United States v. Castaneda, 162 F.3d 832 (5th Cir.1998) (breach proof standard)
- United States v. Meyer, 157 F.3d 1067 (7th Cir.1998) (breach proof standard)
- United States v. Gerant, 995 F.2d 505 (4th Cir.1993) (breach proof standard)
- United States v. Harvey, 869 F.2d 1439 (11th Cir.1989) (need for contemporaneous documentation of immunity deals)
- Ricketts v. Adamson, 483 U.S. 1 (1987) (breach interpretation of plea agreements)
- United States v. Floyd, 1 F.3d 867 (9th Cir.1993) (cooperation vs. testimony obligations)
- United States v. Irvine, 756 F.2d 708 (9th Cir.1985) (breach implications for cooperation)