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U.S. v. MARK

No. 13-10579.

795 F.3d 1102 (2015)

UNITED STATES of America, Plaintiff-Appellee, v. David M. MARK, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed July 31, 2015.

Attorney(s) appearing for the Case

Michael S. Fawer (argued), Smith & Fawer, Covington, LA, for Defendant-Appellant.

Peter S. Levitt (argued), Assistant United States Attorney, Daniel G. Bogden , United States Attorney, Elizabeth O. White , Appellate Chief, United States Attorney's Office, Las Vegas, NV, for Plaintiff-Appellee.

Opinion by Judge FRIEDLAND; Concurrence by Judge McKEOWN.

OPINION

When the government promises not to prosecute a witness in exchange for his cooperation, it cannot then indict the witness unless it proves that he failed to cooperate. Because the government did not do so here, we remand with instructions to dismiss the indictment.

I.

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