United States v. Nathan Lavender

MEMORANDUM

Nathan Lavender appeals his conviction and sentence for assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and assault by striking, beating, or wounding, in violation of 18 U.S.C. §§ 1153 and 113(a)(4). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. Lavender contends that the district court erred in denying his motion to dismiss the indictment. In denying the motion, the district court made factual findings, which we review for clear error. See United States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir.2009).

Lavender claims that the government breached its oral promise not to prosecute him in exchange for his testimony as a witness in an unrelated prosecution of Nathan Manuelito. At the evidentiary hearing on the motion to dismiss, Lavender and his wife testified that agent Auggie Belvado (“Belvado”) promised to “push off’ Lavender’s case and “help [Lavender] out” if he testified in the Manuelito trial. They further testified that the Assistant United States Attorney (“AUSA”) agreed to Lavender’s request to have his case “stay tribal” and “not go federal.”

However, both agent Belvado and the AUSA denied promising…