But You Promised!

File this one under, #CallYourLawyerFirst.

Two weeks ago, a federal court of appeals reversed a man’s conviction for mortgage fraud and ordered the case dismissed because the government had broken its promise not to prosecute him in exchange for his cooperation.

The case presents a strange but interesting set of facts.

From 2006 to 2007, the man worked for a real-estate firm that came to be investigated for mortgage fraud. In November 2007, he and his girlfriend, who also worked at the firm, actually contacted the FBI on their own to provide information about the company.

Four months later, the couple was formally interviewed by the government, and at the end of the interview, the man expressed concern about their own legal exposure, but the prosecutor assured them that they wouldn’t be prosecuted as long as they cooperated.

Fast-forward to February 2011: The government had indicted the owners of the real-estate firm and was preparing for trial. The prosecutor called the man to go over his testimony, and they were joined on the call by another prosecutor and an FBI agent. The call lasted an hour, and the agent prepared a report on it. Then the trial got postponed for unrelated reasons, and ultimately, the man wasn’t called on to testify in it.

But six months later, the other shoe dropped; in August, the man received a target letter from the government telling him that he was next. He hired a lawyer at that point, but negotiations failed, and he was indicted, too. All the while, the government never mentioned the immunity deal to his lawyer, but neither did the defendant, apparently, and it’s not clear why. Perhaps he simply didn’t understand the situation, or perhaps he was trying to protect his girlfriend, who testified in the main case later that year and was never prosecuted.

Now fast-forward to March 2013 and the defendant’s own trial. His girlfriend took the stand as a witness, and she testified to the prosecutor’s promise to them. That surprised the man’s defense lawyer, who promptly filed a motion to dismiss the indictment (after picking up his jaw from the floor, probably), and the court suspended the trial to hear the motion.

At the hearing, the government acknowledged the immunity deal but argued that the defendant had breached it by not continuing to cooperate. Both prosecutors testified that they issued the August target letter because they had called the defendant again in July 2011, but unlike in February 2011, he was suddenly uncooperative.

There was one problem, though: the August letter didn’t refer to any July call. Nor did it refer to any other failure to cooperate or otherwise explain why the government now considered the defendant a target. The defendant denied that a July call even took place.

The prosecutors’ story was suspect for other reasons as well. They testified they made the July call from a conference room in the U.S. Attorney’s office, but they couldn’t produce any notes, logs, or records of the call. They testified they called the defendant at the same phone number they had from his prior interviews, but they couldn’t point to any logs or records on that end, either. They testified that an FBI agent was present for the call, but they couldn’t recall which one it was, except for one who testified that he couldn’t remember such a call.

Despite all that, the trial court denied the defendant’s motion to dismiss and let the trial resume, whereupon he was convicted.

But the court of appeal reversed the case because the government hadn’t proven any breach of the immunity deal, given that the prosecutors’ testimony was directly contradicted by the phone records, and there was a total absence of other notes, logs, or records to support their version of the facts. The court offered to send the case back for an evidentiary hearing to help sort things out, but the government liked that idea even less, so the court dismissed the case.

Get it in writing, then, or better yet, call your lawyer first.