Court Doesn’t Let Prosecutor Back out of Deal Not to Prosecute

David Mark worked for a mortgage company that was being investigated by the FBI for fraud.  He decided to contact the FBI and tell them what he knew, even though he himself had committed some crimes.  During the interview, during which Mark did not have a lawyer, the FBI told him that as long as he cooperated, he would not be charged.

When the case against the main defendants went to trial, the prosecutors spoke to Mark to prepare his testimony.  Shortly thereafter, Mark was himself indicted.  It wasn’t until the middle of trial that Mark mentioned to his lawyer that the FBI originally told him he would not be prosecuted as long as he cooperated.  Mark’s lawyer immediately filed a motion to have the promise enforced and for the charges to be dismissed.   The prosecutors claimed that Mark had been uncooperative when they were preparing for trial, and so the agreement not to prosecute him was void.  The judge agreed, and Mark was found guilty at trial.

The Ninth Circuit Court of Appeals disagreed and reversed Mark’s conviction, finding that there insufficient evidence that he actually had stopped cooperating.  Most importantly, the Court was concerned about the lack of documentation of the meeting between Mark and the government when he supposedly had stopped being cooperative.  Unlike earlier meetings he had had with them, there were no notes or reports from this meeting.  Also, two of the people who were supposedly involved in this meeting could not recall being there.  Since there was insufficient evidence that Mark had actually failed to cooperate, the government should have upheld its end of the bargain and not prosecuted him.

A few morals from this story.  First, Mark was extremely lucky.  Very few courts would have reversed a conviction for these reasons. Most courts would have been happy to accept the prosecutor’s version of event, regardless of the documentation, and upheld Mark’s conviction and sentence.

Second, Mark took a huge chance by speaking to the FBI without a lawyer involved.  Having to decide whether to cooperate with federal authorities is one of the most difficult decisions a person will ever have to make.  Doing so without the assistance of a lawyer is dangerous.

Third, after Mark was told that the prosecutors were charging him, he should have told his lawyer immediately about the original agreement.  Instead, he waited until the middle of trial before remembering to tell his lawyer.  It’s critical to tell your lawyer everything about the case .  Even if you don’t think it’s that important, it may make the difference between a lengthy prison sentence and having all charges dismissed.

The case is United States v. Mark, (9th Circuit, July 31, 2015)


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