United States District Court, D. Nevada
D. George United States District Judge.
early 2008, Brian Pugh, a prosecutor, made a statement to
David Mark that, the government has since conceded, was a
grant of informal immunity. More than five years later,
following the fifth day of Mark's trial, Mark moved to
dismiss because the statement was a grant of immunity. The
government did not contest that the statement was a grant of
immunity, but argued that Mark had breached the immunity.
Ultimately, the Ninth Circuit required that the indictment
against Mark be dismissed because the government had not met
its burden of showing Mark breached the agreement. Mark now
moves for reimbursement of his attorney's fees and
litigation expenses pursuant to 18 U.S.C. §3006A (the
Hyde Amendment) (ECF No. 279). He argues that Pugh
intentionally concealed the grant of informal immunity and
fabricated the breach of that agreement. The government
opposes the motion (ECF No. 283).
Court held an evidentiary hearing on the motion, and the
parties filed post-hearing briefs (ECF Nos. 318 Attachment 1,
327, 333). The government also moved to admit additional
evidence (ECF No. 326), which Mark opposes (ECF No. 330).
Mark further moves to strike the government's arguments
that reference the additional evidence (ECF No. 331).
Court will deny the motion to strike, deny the motion to
admit the additional evidence, and will deny the motion for
reimbursement of attorneys' fees.
November 2007, Mark and Kim Brown met with the FBI to
cooperate with a mortgage fraud investigation targeting the
principals of the real estate company for which they worked.
Several months later (possibly in early March 2008),
Mark and Brown met with Pugh (the Assistant United States
Attorney prosecuting the company's principals) and other
government agents. At the end of that meeting, Pugh made a
statement to Mark and Brown that the government has since
conceded was a grant of informal immunity. There is no
documentary evidence of this meeting or of the statement Pugh
made to Mark and Brown.
February 2011, Pugh telephonically interviewed Mark. The
interview was documented in a 302, which 302 was disclosed to
Mark's defense counsel. Mark was cooperative with the
government in this interview.
government's attorneys testified that they telephonically
interviewed Mark in July 2011, in a call originating from a
speakerphone in the United States Attorney's office to
the phone number previously used to telephonically interview
Mark. During this telephonic interview, Mark's answers to
Pugh's questions caused Pugh to conclude he could no
longer use Mark as a witness.
records establish that a phone call did not occur in the
precise manner to which the prosecutors had testified: that
is, the record established that a phone call did not
originate from a speakerphone in the United States
Attorney's office to the number previously used to
communicate with Mark in either June or July 2011. Pugh
continues to contend that the phone call occurred. Mark
contends this telephonic interview did not occur.
August 2011, Pugh prepared a target letter that he caused to
be sent to Mark, notifying Mark that he was the target of an
investigation. Mark's father, Miles Mark, contacted Pugh
in response to the letter to inquire whether the matter could
be resolved. Mark retained Michael Fawer to represent him.
Fawer contacted Pugh several times. Eventually, a meeting
occurred between Mark, Fawer, and Pugh (at which an agent was
also present) on September 13, 2011. The agent took notes of
the meeting, but did not reduce the notes to a 302. Following
the meeting, the parties engaged in plea negotiations, and
Mark signed a plea agreement in late September. Mark
subsequently decided to not plead guilty. In December 2011,
the government indicted Mark for his conduct related to the
underlying mortgage fraud investigation.
before Mark's trial, Mark and his father engaged in a
search for and review of evidence in the custody of the FBI.
They were escorted by an FBI agent who documented this event
in a 302. The agent documented that “[Miles Mark] said
the FBI told his son they would grant him immunity if he
continued to provide them with information . . ..”
trial was conducted in March 2013, before the trial judge
previously assigned to this matter. Mark was represented by
Fawer, with Mark's father appearing as co-counsel. On
March 15, 2013-the fifth day of trial-Pugh asked Brown
whether, when she came to talk with Pugh and other government
agents (after meeting with the FBI in November 2007), she was
concerned about being prosecuted. Brown's answer was that
she wasn't concerned. Pugh then asked Brown if she was
“given any assurances in that regard?” Defense
counsel objected before Brown could answer, and an extensive
colloquy occurred between counsel and the Court. Eventually,
the Court directed the parties to meet, which they did later
that day (the March 15, 2013, meeting).
March 18, 2013, Mark moved to dismiss the indictment
asserting, in part, that during the March 15, 2013, meeting,
Pugh had acknowledged to defense counsel that he had granted
immunity to Mark. Mark subsequently asserted that this was
the first time that Pugh had disclosed the immunity agreement
to defense counsel. In its response, the government
acknowledged that Pugh had granted informal immunity to Mark,
but asserted that Mark had breached his obligation to
cooperate during a phone call on or shortly before July 14,
an evidentiary hearing, the court credited the testimony of
the prosecutors, found that Pugh had granted immunity to
Mark, but also concluded that Mark had breached the immunity
agreement in the July 2011 phone call. Accordingly, the Court
denied Mark's motion to dismiss the indictment.
the trial, Mark moved for reconsideration. He relied upon a
phone record he had subpoenaed from the government, which
record established that two phone calls had been placed from
the U.S. Attorney's office to a Louisiana-based phone
number in January and February 2011, but that no call had
been placed between the office and that phone number in June
or July 2011. Mark argued the phone record established that
the government attorneys had fabricated their testimony
regarding the phone call.
opposition, the government argued the subpoenaed phone record
did not prove that the phone call never occurred. Rather, the
government argued the phone record showed only that the
prosecutors' memories as to how the phone call was
initiated were mistaken. The trial judge denied the motion to
appeal, the Ninth Circuit noted:
The district court did not explain why, despite the new phone
records, it chose not to hold a further evidentiary hearing
or otherwise reconsider its earlier order denying the motion
to dismiss. In light of the scant record supporting the
government's claim of a breach and clear evidence that
key details of the government's story were inaccurate,
the district court abused its discretion when it failed to
either grant Mark's motion for reconsideration or order
an additional evidentiary hearing.
particularly, the Ninth Circuit noted:
Perhaps at a further evidentiary hearing the prosecutors
could have reconciled their recollections that a call
happened with all of the apparent evidence to the contrary.
But the government has urged us not to remand for an
evidentiary hearing and instead has expressed a desire to
stand on the existing record. When asked whether remanding
the case for a further evidentiary hearing would be
appropriate, the government attorney stated: “I
can't imagine that at a further evidentiary hearing . . .
that anything else is going to get unearthed.” When
pressed further on whether the government would “stake
its claim” on the existing record, he answered
“correct.” We therefore evaluate whether, on the
current record, the government met its burden of proving that
Ninth Circuit found that, on the record before it, the
government had not met its burden of proving Mark breached
the informal immunity agreement. The Ninth Circuit held that
“the district court's failure to either grant
Mark's motion for reconsideration or order an additional
evidentiary hearing was an abuse of discretion.” The
circuit court then reversed the denial of the motion to
reconsider and remanded with directions to dismiss the
now moves, pursuant to the Hyde Amendment, for an award of
his attorney's fees and costs that he incurred in his
to the Hyde Amendment, this court “may award to a
prevailing party, other than the United States, a reasonable
attorney's fee and other litigation expenses, where the
court finds that the position of the United States was
vexatious, frivolous, or in bad faith, unless the court finds
that special circumstances make such an award unjust.”
18 U.S.C. §3006A Note.
Mark is a Prevailing Party?
upon United States v. Chapman, 524 F.3d 1073, 1089
(9th Cir. 2008), the government argues that Mark
is not a prevailing party because he did not prevail on the
merits relevant to his ...