A Deal’s a Deal, 9th Cir. Tells Fed. Prosecutors

SAN FRANCISCO (CN) - A man who was promised immunity for cooperating with a mortgage-fraud investigation no longer has to face criminal charges, a Ninth Circuit panel ruled Friday.

David M. Mark was indicted on five counts of bank fraud, mail fraud and wire fraud in December 2011 after an FBI agent told him he would not face charges if he cooperated, according to the panel's opinion.

Mark and his then-girlfriend Kimberly Brown worked for Distinctive Real Estate and Investments, a Las Vegas company run by Eve Mazzarella, who, along with her husband Steven Grimm, became the target of a large-scale mortgage-fraud investigation in 2007.

Mark and Brown voluntarily contacted the FBI and provided information to assist the investigation. Later, a U.S. attorney interviewed the pair to determine if they would make good witnesses and - after Mark expressed concern about what would happen to him - made informal immunity agreements with both Mark and Brown.

But the government claimed that after initially cooperating with investigators in February 2011, Mark suddenly "pretended not to remember anything" during a phone call several months later and was later charged and convicted.

The trial court denied Mark's request for reconsideration, finding the informal immunity agreement had not been documented by either the U.S. attorney or Mark's lawyer and that even if one existed, Mark had breached it.

But a three-judge panel of the Ninth Circuit reversed Mark's conviction, finding scant evidence that the defendant breached his immunity deal with the government and noting that key details of the government's story were inaccurate.

"When the government promises not to prosecute a witness in exchange for his cooperation, it cannot then indict the witness unless it proves that he failed to cooperate," Circuit Judge Michelle Friedland wrote for the panel.

In the case at hand, the government could not precisely say which FBI agent conducted the phone interview where Mark allegedly became uncooperative, and Mark has denied that the conversation ever took place.

The government also provided no evidence of the alleged phone call other than the sworn testimonies of the prosecutors, and Mark later produced phone records contradicting claims that he received a call on his cellphone from the government in July 2011, the panel found.

"This case is a textbook lesson in the importance of documentation with regard to immunity deals," Circuit Judge M. Margaret McKeown wrote in a concurring opinion. "When it comes to proving breach of an immunity agreement, the government should do better than, 'he said, she said.'"

Mark's attorney, Michael Fawer of Smith & Fawer in Covington, La., and the Justice Department did not immediately return requests for comment.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit