US v. Mark, No. 13-10579 (7-31-15)(Friedland and Murguia; concurrence by McKeown).  If the gov't promises immunity, it cannot then prosecute absent proof of a violation of the deal. In this case, the defendant was promised immunity for cooperation in a mortgage fraud matter.  It seems though that in a subsequent call, the defendant became uncooperative.  There were no notes or records of the call.  The defendant said the call did not take place.  This immunity agreement came out at trial.  The court denied the motion to dismiss and the reconsideration (with cell phone records indicating no call).  On appeal, with an admittedly "abysmal" record, the 9th vacated the conviction, and remanded to dismiss the indictment.  The government bears the burden to show that a breach occurred.  Here, the very event that supposedly caused the breach -- the call -- is disputed by the defendant.  The FBI agent had no memory of the call.  The AUSAs said it took place.  It was a swearing match with no evidence the call took place.  In light of this, and the fact the court credited the defendant's account, the immunity needs to be enforced.  McKeown, concurring, writes to stress the importance of record keeping and notes and the burden of proof.

 

US v. Winkles, No. 13-56376 (7-31-15)(Lamberth, Sr D.J., with M. Smith and N. Smith). The 9th dismisses a Rule 60(b) motion for a petition to vacate his sentence for lack of jurisdiction.   A COA was required from the denial of the Rule 60(b) motion.   The petitioner had failed to show an abuse of discretion in the court's denial of a COA related to reopening the time of appeal and an amended 2255 motion.