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July 6, 2016
  United States v. Lilly
Case Name: U.S. v. Lilly

Headline: Tenth Circuit Holds Investigators' Promises of Immunity to Confidential Informant Could Not Prevent Federal Charges

Area of Law: Fourth Amendment, Public Contract

Issue Presented: Whether the Wyoming agents, acting independently or on behalf of the federal DEA, had actual authority to bind the United States to a non-prosecution agreement pursuant to the Constitution, federal statute, or duly promulgated regulation, or as integral part of their duties.

Brief Summary:

Investigative agents from the Wyoming Division of Criminal Investigation (DCI) interviewed Defendant in connection with her fiancé's arrest by the Drug Enforcement Agency (DEA) for distribution of methamphetamine. Defendant agreed to serve as a confidential informant and made several incriminating statements about her involvement. Defendant was subsequently indicted for conspiracy to distribute methamphetamine. Defendant filed a motion seeking to prevent the United States from prosecuting her, arguing that the investigative agents promised her federal immunity from prosecution. The district court denied the motion, finding that neither the DCI nor DEA had the authority to bind the United States to any such agreement.

Defendant appealed. The Tenth Circuit held that the state investigators, acting independently or on behalf of the DEA, did not have the authority to promise Defendant federal immunity. Because any agreement was therefore unenforceable against the United States, the Tenth Circuit affirmed the district court's denial of Defendant's motion.

Extended Summary:

First, the Tenth Circuit held that, assuming there was an enforceable non-prosecution agreement between Defendant and the DCI agents, the DCI agents were acting independently and did not have authority to bar federal prosecution, because state officials have no power to bind the federal government. See United States v. Vinson, 414 F.3d 924, 929 (8th Cir.2005).

Second, as to express actual authority, Defendant pointed to no federal statute or regulation expressly authorizing DEA agents to grant immunity to cooperating informants. See United States v. Flemmi, 225 F.3d 78, 85 (1st Cir. 2000).

Third, regarding implied actual authority, while granting immunity might be helpful to securing cooperation of informants, the connection between a promise of immunity and the DEA's duty to investigate crimes is far too attenuated to establish that the DEA had implied actual authority to grant Defendant immunity. See id. at 86. Further, Defendant could not identify any participation by a federal prosecutor - who actually did possess such authority - in making a non-prosecution promise to her. See id. at 87.

Fourth, Defendant did not explain why her general fairness considerations should trump the well-established principle that anyone entering into an arrangement with the Government takes the risk of having accurately ascertained the limits of an agent's authority. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383-84 (1947). Nor was this case so extraordinary as to invoke the fundamental fairness exception to the requirement of actual authority. See Flemmi, 225 F.3d at 88 n.4.

Fifth, the supervisory power of the Court did not apply because a failure to enforce promises, which were unauthorized in the first instance, would not implicate the integrity of the judiciary or violate Defendant's recognized rights; nor were the alleged promises tainted by any illegality. See United States v. Payner, 447 U.S. 727, 734 - 35 (1980). Finally, Defendant did not raise, and therefore waived, the argument that a federal prosecutor ratified the agreement or failed to repudiate it knowing of the grant of immunity. See Flemmi, 225 F.3d at 90.

Concluding that the DCI agents had no independent authority to bind the United States, and the DEA agents likewise lacked the authority to direct them to do so, the Tenth Circuit affirmed the district court's denial of Defendant's motion.

To read the full opinion, please visit:

Panel: Briscoe, Holmes, and Bacharach

Date of Issued Opinion: January 19, 2016

Docket Number: No. 14-8014

Decided: The Tenth Circuit affirmed the district court's denial of Defendant's motion.

Case Alert Author: Veronica C. Gonzales-Zamora


W. Keith Goody, Cougar, WA, for Defendant-Appellant.

Thomas Szott, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Office of the United States Attorney, District of Wyoming, Cheyenne, WY, for Plaintiff-Appellee.

Author of Opinion: Hon. Holmes

Case Alert Circuit Supervisor: Dawinder S. Sidhu

    Posted By: Veronica Gonzales @ 07/06/2016 11:46 AM     10th Circuit  

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