Opinion
Case No. 2:11-cr-00453-LDG (CWH)
05-25-2017
UNITED STATES OF AMERICA, Plaintiff, v. DAVID MARK, Defendant.
ORDER
In 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).
The 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).
Mark filed a motion for leave to file a post-hearing brief (ECF No. 318), even though the Court had already granted the parties leave and a schedule for filing post-hearing briefs. Attached to the motion was a copy of the brief Mark intended to file. The Court granted the motion, signing the proposed order submitted by Mark, but that order merely granted leave to file the brief. Mark did not file the brief. Nevertheless, the Court has considered the brief in the form it was attached to the motion for leave.
The 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.
Background
In 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.
The evidence supports, at most, a finding that the meeting occurred several months after November 15, 2007, and possibly before March 13, 2008. Whether the meeting occurred in early March 2008, is not material. Nevertheless, the meeting has come to be referred to as the March 2008 meeting, and the Court will follow that convention.
In 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.
The 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.
Phone records establish that a phone call did not occur in the precise m anner 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.
In 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.
A week 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 . . .."
Mark's 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).
On 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, 2011.
Following 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.
Following 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.
In 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 reconsider.
On 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.
More 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 Mark breached.
The 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 indictment.
Mark now moves, pursuant to the Hyde Amendment, for an award of his attorney's fees and costs that he incurred in his defense.
Analysis
Pursuant 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.
Whether Mark is a Prevailing Party?
Relying 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 guilt or innocence. In Chapman, the Ninth Circuit explained:
Although the amendment does not explicitly define the term, we have interpreted "prevailing party" to mean "one who has gained by judgment or consent decree a material alteration of the legal relationship of the parties." Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) (defining the term under the Equal Access to Justice Act) (internal quotation marks omitted); United States v. Campbell, 291 F.3d 1169, 1172 (9th Cir.2002) (extending the Perez-Arrellano definition to the Hyde Amendment). There can be no doubt that a dismissal with prejudice materially alters the legal relationship of the parties, as it precludes the government from bringing a prosecution that it otherwise would be entitled to bring. However, our cases have also required a prevailing party to have " 'receive[d] at least some relief on the merits of his claim.' " Campbell, 291 F.3d at 1172 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)) (alteration in original) (emphasis added).Id. The circuit court went on to conclude, in Chapman, that the defendants were not prevailing parties where the indictment was dismissed, with prejudice, for prosecutorial misconduct that was not relevant to the defendants' guilt or innocence.
Mark responds that the Ninth Circuit's decision and reasoning in Chapman is contrary to the plain language of the Hyde Amendment, is inconsistent with other Ninth Circuit authority, and that it disregards Buckhannon. Mark argues that the government has attempted to graft "additional requirements" to the plain language of "prevailing party."
The Court disagrees. The requirement that a prevailing party is a party that has received at least some relief on the merits of his claim was established by the Supreme Court. As the Supreme Court explained in Buckhannon, the term "prevailing party" is a legal term of art. Buckhannon, 532 U.S. at 603. As Mark acknowledges, the Supreme Court determined in Buckhannon "that enforceable judgments on the merits and court-ordered consent decrees create the 'material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." Id. at 604, quoting Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Accordingly, the Supreme Court established that, for purposes of determining eligibility for an award of attorney's fees, a "prevailing party" is not merely the party obtaining a favorable judgment, but a party obtaining a favorable judgment on the merits.
In Chapman, the Ninth Circuit further indicated that the dismissal of an indictment for prosecutorial misconduct that was not relevant to a defendant's guilt or innocence was "not an enforceable judgment on the merits of the case." Chapman, 524 F.3d at 1089. Mark does not offer any argument that he obtained a favorable judgment on the merits relevant to his guilt or innocence. Accordingly, Mark has not established that he is a prevailing party for purposes of determining eligibility for attorney's fees pursuant to the Hyde Amendment.
Whether the Government Prosecuted Mark in Bad Faith
Even if the Court were to find that, in the context of this case, the Ninth Circuit's remand with direction to dismiss the indictment constitutes a judgment on the merits, Mark has not shown that he is entitled to an award of attorney's fees. To be entitled to attorney's fees, Mark has the burden of showing that "the position of the United States was vexatious, frivolous, or in bad faith . . .." In Chapman, the Ninth Circuit indicated that, because it had determined the defendant was not a prevailing party, the appellate court "need not review the court's finding that the overall case was not 'vexatious, frivolous, or in bad faith.'" Chapman, 524 F.3d at 1090. The Eleventh Circuit has noted "[a] defendant must show that the government's position underlying the prosecution amounts to prosecutorial misconduct—a prosecution brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous." United States v. Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999). The Eleventh Circuit further noted "the Hyde Amendment was targeted at prosecutorial misconduct, not prosecutorial mistake." Id., 198 F.3d at 1304. As noted by the Ninth Circuit, the initial "intent of the legislation was to ensure that innocent people would not bankrupt themselves defending against frivolous and bad faith prosecutions." United States v. Braunstein, 281 F.3d 982, 995 n. 10 (9th Cir. 2002).
In Gilbert, the Eleventh Circuit summarized the meanings of vexatious, frivolous, and bad faith:
"Vexatious" means "without reasonable or probable cause or excuse." Black's Law Dictionary 1559 (7th ed.1999); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (describing "vexatious" conduct in the Title VII context as being "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith"). A "frivolous action" is one that is "[g]roundless ... with little prospect of success; often brought to embarrass or annoy the defendant." Black's Law Dictionary 668 (6th ed.1990); see also Fed.R.Civ.P. 11. Finally, "bad faith" "is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will." Black's Law Dictionary 139 (6th ed.1990); see also Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (defining bad faith in the law enforcement context to include "reckless disregard for the truth").198 F.3d at 1298-99.
Mark has not shown that the government's position was vexatious or frivolous.
Mark's opening brief generally asserts the government's position was vexatious, frivolous, and in bad faith. During the evidentiary hearing, Mark's counsel represented that the motion was based on bad faith and frivolousness, and expressly represented that his motion was not based on whether the government's position was vexatious. In his post-hearing brief, Mark argued only that Pugh acted in bad faith. --------
Mark argues that Pugh acted in bad faith by:
(A) indicting him despite promising Mark he would not prosecute him;
(B) intentionally concealing the immunity agreement from Mark; and
(C) lying about a breach that never occurred. Mark has the burden of showing that Pugh acted in bad faith; that is, that Pugh knew that his conduct in each of these events was wrong because he was acting with a dishonest purpose, with "a state of mind affirmatively operating with furtive design or ill will."
In considering whether Pugh acted in bad faith, the Court will begin by noting the prior findings and rulings in this matter that are relevant to the motion. As those rulings arise in the context of Mark's motion to dismiss the indictment, the Court will begin with a brief review of that motion.
Mark filed his motion to dismiss the indictment against him on the fifth day of trial. He argued that the government had violated its discovery, Brady, and Giglio obligations by failing to disclose, to defense counsel, that the government had granted informal immunity to him and Brown. He argued that because his counsel was (prior to the fifth day of trial) unaware of the immunity agreement, his counsel lacked a valid, legal basis to move to prohibit the government from using statements in opening arguments that Mark had made to the government. Mark asserted that, "[a]lthough [he] believed from the outset that the Government did not intend to prosecute him because he was cooperating, he did not realize that the prosecutor had granted him immunity until it was revealed on the fifth day of trial." Without citation to any authority, Mark argued the government's pretrial obligation to disclose-to the defendant-an immunity agreement with the defendant was graver that in its obligation to disclose-to the defendant-an immunity agreement with a witness.
To the extent Mark addressed the breach, he noted that the record lacked any evidence documenting the breach, and that the government had not notified Mark that he had breached the agreement. He argued that the government had the burden of proving the breach, and that the government was required to show that Mark had made material untruthful statements, and had not merely minimized his own involvement.
Mark's motion to dismiss required that the Court determine, as a threshold matter, whether Pugh had granted Mark informal immunity, whether the government met its burden of showing that Mark had breached that agreement, and whether the government had a duty to disclose the immunity agreement to Mark's counsel.
The Court held several evidentiary hearings on the motion. Regarding the grant of informal immunity in the March 2008, meeting, Pugh testified: "I told him that so long as he continued to be truthful and continued to cooperate that he would not be prosecuted." By contrast, Mark testified that Pugh had stated "that we should cooperate and we did, we shouldn't have to worry." Mark went on to testify that, despite Pugh's statement, he remained "extremely worried" that he would be prosecuted. Mark explained that Pugh also told him that they were not targets and not persons of interest, and assumed that was why he didn't need to worry. In denying the motion to dismiss in an oral ruling, the judge expressly relied upon the testimony of Pugh to find that Pugh had granted informal immunity to Mark.
Regarding Mark's breach of the immunity agreement, Pugh and Griswold testified that the breach occurred during a phone call to prepare Mark as a witness for an upcoming trial. During that call, Mark was no longer able to recall relevant facts. Pugh and Griswold testified that the phone call occurred in July 2011, and was placed from a phone in the United States Attorney's office to the phone number previously used to talk with Mark. Mark testified that he did not recall the phone call. The judge credited the testimony of the prosecutors. He further noted that he did not need to address Mark's credibility on this issue, as Mark testified that he could not recall the phone call. The judge held that Mark had breached the agreement and the breach was material.
The judge also rejected Mark's argument that the government had a duty to disclose the immunity agreement to defense counsel. The judge noted that Mark was privy to the agreement, and was free to communicate that to his counsel.
Following this ruling, Mark moved for reconsideration. In support, he submitted a phone record establishing that, contrary to the prosecutors' testimony, a phone call was not placed in July 2011 from an office in the United States Attorney's office to the phone number previously used to telephone Mark. The judge denied the motion for reconsideration.
On appeal, the Ninth Circuit addressed the narrow issue whether the district court had abused its discretion in either denying the motion for reconsideration or failing to hold a further evidentiary hearing. On this narrow issue, the appellate court found an abuse of discretion "[i]n 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." This holding rested upon the Ninth Circuit's determination that, on the record before it, the government had not met its burden of proving Mark breached the informal immunity agreement.
In considering Mark's present motion, the Court notes that Mark has not offered or directed the Court's attention to any direct evidence that Pugh consciously acted with a dishonest purpose. This is unsurprising because intent is rarely established by direct evidence. Further, Mark is not required to meet his burden with direct evidence. Accordingly, the Court has not drawn any adverse inference or conclusion from the lack of direct evidence. Rather, the present matter represents the more typical case in which the intent underlying a person's conduct must be inferred from the circumstances surrounding the conduct at issue.
Whether Pugh acted in bad faith in causing the indictment of Mark requires that Mark establish, by a preponderance of the evidence, that Pugh granted informal immunity to Mark. The government has conceded that such a grant of informal immunity occurred, and the Court has previously held that it occurred. The Court will not disturb that ruling.
As a requisite to showing Pugh acted in bad faith, however, Mark must further show that Pugh was aware that he had granted informal immunity to Mark. The government's concession that Pugh granted informal immunity to Mark does not, of itself, establish that Pugh was aware that he had done so when he made the decision to send a target letter to Mark. The concession establishes only that the government concluded that Pugh had granted informal immunity to Mark at the March 2008 meeting.
Mark's own testimony regarding Pugh's grant of informal immunity would suggest that Pugh was not aware that he had granted informal immunity. In the evidentiary hearing on the present motion, Pugh's testimony mirrored Mark's testimony.
Nevertheless, the Court will not disturb the prior determination that the grant of informal immunity occurred in the manner to which Pugh testified 2013: "I told him that so long as he continued to be truthful and continued to cooperate that he would not be prosecuted." The Ninth Circuit apparently relied upon this determination, when it noted that "Pugh assured Mark and Brown that, as long as they cooperated with the government, they would not be prosecuted." The Court finds that, given Pugh's testimony regarding the words he used to communicate the informal immunity agreement to Mark, Pugh was aware that he had granted informal immunity to Mark.
The next issue that Court must resolve is whether Mark has shown that he did not engage in any conduct that would allow a reasonable prosecutor to conclude that he had breached the immunity agreement. Mark's burden is met, to some extent, by the unique circumstances of this case in which the prosecutors offered testimony as to some specific details regarding the phone call in which the breach occurred, which testimony was later demonstrated to be inaccurate. However, drawing the inference that the call did not occur remains tenuous. A significant difference exists between concluding that a phone call did not occur in the specific manner to which the prosecutors testified and concluding that no phone call occurred between Pugh and Mark. The evidence establishes the former conclusion, but only suggests the latter.
Mark's reliance on the Ninth Circuit's opinion is misplaced. The appellate court was not required to determine, nor did it determine, that the phone call did not occur. Rather, the issue before that court was whether the government met its burden of showing that the phone call did occur. In this context, the documentary evidence that the prosecutors' testimony was inaccurate as to the details of the call and the scant evidence indicating the call occurred (resulting from the government's failure to document the call) established that the government had not met its burden. The Ninth Circuit did not conclude, and was not required to find, that the phone call did not happen. By contrast, in the present motion, the burden rests with Mark and not the government. Mark cannot rely upon the government's failure to meet its burden to show the breach occurred to meet his burden of showing that he did not engage in any conduct that a prosecutor could construe as a breach.
In his motion to dismiss the indictment, Mark argued that the record lacked any evidence of the breach, and that Pugh did not disclose the breach to Mark's counsel until the March 15, 2013, meeting in Pugh's office. The record indicates, however, that Mark's counsel was aware of the phone call before the March 15, 2013, meeting. Following Pugh's initial effort to have Brown testify regarding the grant of immunity, some discussion occurred between counsel and the Court before the Court recessed for lunch. Following lunch, an extensive colloquy occurred between counsel and the Court. During that colloquy, Mark's defense counsel discussed with the Court his belief that the government had not met its obligation of disclosing all appropriate documents in its possession. Specifically, defense counsel stated: "But the point I'm making is there are a number of contacts, telephone contacts, as well, between Mr. Pugh, the witness, with Mr. Pugh and my client, and I don't know if there were notes taken. I would assume there was some memorialization of the conversations. And if there is, then I need to get those produced as well and I ask the Court's assistance." (Emphasis added.)
After Griswold identified relevant documents that had been disclosed, defense counsel stated, "When he [sic] says 'the notes,' there was, I know, a conversation, I believe it was in early '11, if I'm not - in February of '11, in which, for whatever reason, Mr. Pugh was unhappy with what Mr. Marks was telling him. That I know. I do not recall if those are the notes, although I stand corrected if I have been shown the notes, but I don't know what period of time Ms. Griswold is referring to that these notes relate to, when it was." (Emphasis added). Griswold then referred to the notes from the September 13, 2011, meeting, to which defense counsel responded, "That's not what I'm talking about. I'm talking about ten months before that, before I ever heard of this case. There was a - David, so you understand, in August - ." Griswold then noted that defense counsel had the 302 from the February 2011 telephonic conversation between Pugh and Mark.
The 302 documenting the February 2011 phone call between Pugh and Mark was disclosed to defense counsel. In support of Mark's motion to dismiss the indictment, defense counsel elicited testimony from Pugh that Pugh believed Mark was cooperative during the February 2011 phone call. Mark has consistently argued that the 302 of the February 2011 phone call documents the interview of a cooperating witness. Accordingly, the February 2011 telephone call was not the conversation between Pugh and Mark that counsel referenced as a conversation in which Mark told Pugh something that made Pugh unhappy.
Mark has not shown that he did not engage in any conduct that a reasonable prosecutor could conclude was a breach of the immunity agreement. Defense counsel became involved in this case in mid-to-late August, 2011, shortly after Mark received the target letter that Pugh had prepared (and before Mark was indicted). At some point prior to the March 15, 2013, meeting, defense counsel became aware that Mark and Pugh engaged in a conversation that made Pugh unhappy, and that this conversation occurred prior to his becoming aware of the case. Pugh and Griswold testified that, during a phone call before Pugh prepared the target letter, Mark answered Pugh's questions by indicating an inability to remember. Mark testified that he could not recall the phone call. Accordingly, Mark has not met his burden of showing that Pugh acted in bad faith in causing Mark to be indicted. Further, while Mark has established that Pugh's testimony regarding the details of the phone call was inaccurate, Mark has not shown that Pugh acted in bad faith when he testified that the phone call was placed in July 2011, from a phone in the United States Attorney's office to the phone number previously used to communicate with Mark.
Finally, the Court must resolve whether Pugh intentionally concealed the immunity agreement from Mark's defense counsel. Pugh could conceal the knowledge of the immunity agreement from Mark's counsel only if he believed that Mark's counsel were unaware of the agreement, and would not become aware of the agreement unless Pugh disclosed the agreement to them. As such, Mark must show that Pugh engaged in acts by which Pugh intended, at a minimum, to preclude Mark's defense counsel from learning of the agreement from Pugh. To meet his burden, Mark must show that Pugh had knowledge of the immunity agreement. He must further show that Pugh believed Mark's counsel lacked knowledge of the agreement. Finally, he must show Pugh believed that he was either the sole source of the information regarding the agreement, or that it was likely defense counsel would not gain knowledge of the agreement from any other source.
Pugh could not have concealed the immunity agreement from Mark, because Mark was privy to that agreement. The Court has previously determined that Pugh knew he had granted informal immunity to Mark. The corollary to that finding is that Mark also knew he had been granted informal immunity. Further, as relevant to the present motion, Pugh could reasonably believe that Mark had knowledge of the informal immunity agreement.
Mark testified that he did not understand that he had been g ranted immunity. Mark's failure to understand, however, is relevant only to the extent that Pugh was aware of that lack of understanding. Even assuming that Mark had not realized that Pugh had granted immunity, Mark has not shown that Pugh was aware of Mark's ignorance.
Mark's counsel testified that Mark did not disclose the immunity agreement to them because Mark was not aware that he had been granted immunity. The record suggests that this testimony was not entirely accurate. During the extensive colloquy between defense counsel and the Court following the lunch recess on March 15, 2013, defense counsel referenced the March 2008 meeting between Pugh, Brown, and Mark. Defense counsel noted that the next significant event after the November 2007 meeting between Brown, Mark and the FBI was a search conducted on March 13th, 2008, regarding the target of the FBI's investigation. Defense counsel then represented to the Court, "It's just before the search, most likely early March, that a meeting occurs that David is at with Kim at Mr. Pugh's office in the presence of agents. I can tell you what the subject matter was in part. We have no document of that." Defense counsel continued, "There are other - that's - and it's very critical - I don't know if any promise - I think that's the time the promise was made to both of them about not being subject to prosecution." (Emphasis added).
Defense counsel then identified several topics discussed at the meeting, indicating "[t]hose are subjects that I am [sic] understand from my client that that's what - but we have nothing. And I think at that meeting, if not evidence, there's promises with respect to non-prosecution. I have yet to see any such 302s."
At the time defense counsel made this representation, the only possible source for the knowledge revealed in counsel's representation was Mark. The witnesses to the meeting, and the grant of immunity, were Pugh, Brown, Mark, and one or two government agents. The agents had not testified regarding the March 2008 meeting. Brown had not yet testified of the March 2008 meeting. Further, when she did testify, she could not recall whether Mark was present. Accepting the underlying premise of Mark's motion that Pugh's first disclosure of the immunity agreement occurred during the March 15, 2013, meeting, Pugh could not have been the source for defense counsel's representation. That meeting did not occur until later in that day.
The record also establishes that, several days before Mark's trial began, Miles Mark expressed his belief to an FBI agent that he believed the FBI had granted immunity to his son if his son continued to cooperate. In his testimony to this Court, Miles Mark drew a distinction between a grant of immunity from the FBI and a grant of immunity from the prosecutor. He further asserted that he never disclosed his belief-that the FBI had granted immunity to Mark-to his co-counsel. In denying Mark's motion to dismiss, the trial judge expressed his skepticism that Mark had not disclosed the immunity agreement, noting that counsel had demonstrated an awareness of the agreement the week prior to trial.
However, accepting that Mark did not disclose the agreement to his counsel (prior to March 15, 2013) and assuming that counsel was unaware of the immunity agreement, such evidence is relevant to the present motion only to the extent that Pugh was aware both (1) of Mark's failure to inform his counsel and (2) that Mark's counsel were ignorant of the immunity agreement. In the circumstances of this case (and in the absence of evidence to the contrary), Pugh could, as a prosecutor, reasonably conclude that Mark was aware of the immunity agreement. Further, Pugh could reasonably conclude that Mark had discussed the immunity agreement with his counsel. Mark has not met his burden of showing that Pugh was aware of Mark's asserted ignorance. He has also failed to offer evidence that Pugh was aware of counsel's asserted ignorance of the immunity agreement. The only evidence submitted by Mark is that Pugh did not disclose the immunity agreement to counsel prior to the March 15, 2013, meeting. The failure to disclose the agreement to counsel neither establishes that Pugh was aware that defense counsel was ignorant of the immunity agreement, nor that Pugh was concealing the immunity agreement from defense counsel.
The record in this case strongly suggests that Pugh was not diligent, and perhaps may even have been negligent, in documenting (or ensuring the documentation of) critical interactions with Mark. At issue, however, is not whether Pugh acted negligently, but whether he acted in bad faith in his failure to document and disclose the grant of immunity to Mark's counsel. Mark has not shown that Pugh's failure to document (or ensure the documentation) of the meetings was intentional. Rather, the totality of the circumstancens indicate that Pugh believed the meetings had been documented.
During the events immediately following Pugh's first effort to ask Brown whether she had been offered any assurances, the Court directed a question to Brown as to the timing of her meeting with Pugh relative to her November 2007 meeting with Mark and the FBI. Brown stated "I want to say months, but I feel like this has been so many years going forward it's very difficult to pinpoint it." The Court followed up, asking if it would help if Brown had a date. Pugh then volunteered: "Your Honor, I just checked my notebook. I have every Memorandum of Interview except that one in my book. We have it - I have it back in the office."
The Court accepts Pugh's representations to the Court as accurate reflections of his belief that he had possession of a document memorializing the meeting, which supports an inference that Pugh's conduct in failing to disclose the immunity agreement to defense counsel was not in bad faith. Nothing within the context of this exchange indicates that Pugh was being deceitful or otherwise acting in bad faith. The record lacks any evidence that Pugh's representation to the judge that he had just checked his notebook was other than an accurate report that he had just checked his notebook. Moreover, having considered the totality of the circumstance, the Court is unpersuaded that Pugh's representations-reflecting a belief that he had a memorandum documenting the interview and believed that document was in his office-were deceitful. In particular, the court disagrees with Mark that Pugh's representations were a means of furthering Pugh's effort to intentionally conceal the immunity agreement from defense counsel. Deceiving the Court and opposing counsel into believing that a document disclosing the immunity agreement existed would have been contrary to a conscious effort to conceal the immunity agreement. The result of Pugh's representations to the Court was Pugh's express disclosure to defense counsel, later that day, that he had granted immunity to Mark. Pugh's representations to the Court support the inference that his failure to document (or ensure the documentation) of the March 2008 meeting was a mistake and was not an intentional act underlying a strategy to eventually indict Mark and conceal the immunity agreement from defense counsel. Accordingly, Mark has not met his burden of showing that Pugh acted in bad faith.
Conclusion
The Court holds that Mark is not a prevailing party.
Nevertheless, assuming that Mark is a prevailing party, he has not shown that the government's position was in bad faith.
The Court finds that Pugh was aware that he had granted informal immunity to Mark in March 2008, and that he remained aware of that agreement at the time he sent a target letter to Mark and at the time he caused Mark to be indicted.
Mark has not shown that he did not engage in any conduct that Pugh could reasonably construe as a breach of the immunity agreement. The Court acknowledges that the prosecutors' testimony regarding the details of a phone call in which the breach occurred was inaccurate. The burden rests on Mark, however, to not merely establish that the testimony was inaccurate as to the details, but was also inaccurate regarding the contents of that conversation. As to the content of that conversation, it was consistent with the prior representations of defense counsel to the Court revealing an awareness of a phone call in which Mark's answers made Pugh unhappy. Accordingly, Mark has not met his burden of showing that Pugh acted in bad faith in causing Mark to be indicted. Additionally, Mark has not shown that Pugh acted in bad faith in testifying regarding the details of the phone call in which Mark's answers caused Pugh to conclude that Mark had breached his obligations under the immunity agreement.
Finally, Mark has not shown that Pugh intentionally concealed the immunity agreement from defense counsel. Pugh communicated the grant of informal immunity to Mark in a manner sufficient that Pugh could believe Mark understood he had been granted immunity. Accepting Mark's testimony that he did not understand he had been granted immunity, he has not shown that Pugh was aware of this lack of understanding. Pugh could reasonably conclude that Mark was aware and communicated his understanding of the immunity agreement to his defense counsel. Mark has not shown that Pugh was aware that Mark had not communicated his understanding of the immunity agreement to his own counsel. Rather, having considered the totality of the circumstances, Mark has shown only that Pugh acted in a manner consistent with a prosecutor interacting with defense counsel whom the prosecutor reasonably believed was aware both that immunity had been granted to his client and that his client had engaged in conduct that a prosecutor would construe as a breach of that immunity.
Pugh's failure to document (or ensure the documentation) of meetings with Mark, which failures resulted in the government's failure to disclose the grant of immunity to opposing counsel, was not an act done in bad faith. Nor does the failure to document establish that Pugh acted in bad faith in failing to verbally disclose the agreement to defense counsel.
Finally, the Court notes that, in considering Mark's motion, the Court has not considered or reviewed the additional evidence which the government sought to admit. Accordingly, the Court will deny the motion to admit that evidence as moot. The Court also took care to not consider any argument, whether by the government or by Mark, that referenced or depended upon that the additional evidence. While the effort to avoid those arguments necessarily exposed the Court to the arguments, the Court did not consider the arguments (or the additional evidence) in reaching its decision. While the defendant has moved to strike the government's arguments referencing that evidence, granting that motion would require the Court to also strike Mark's arguments referencing that evidence. Given that the Court reached its conclusions without considering the arguments, it will deny the motion to strike as moot. Accordingly,
THE COURT ORDERS that the Government's Motion to Admit Additional Evidence (ECF No. 326) is DENIED as moot;
THE COURT FURTHER ORDERS that David Mark's Motion to Strike Motion (ECF No. 331) is DENIED;
THE COURT FURTHER ORDERS that David Mark's Motion for Leave to File Sur-reply (ECF No. 334) is DENIED;
THE COURT FURTHER ORDERS that David Mark's Motion for Reimbursement of His Attorneys' Fees and Litigation Expenses Pursuant to 18 U.S.C. §3006A (the Hyde Amendment) (ECF No. 279) is DENIED. DATED this 25 day of May, 2017.
/s/_________
Lloyd D. George
United States District Judge