United States v. Lilly

Filing

[10335391] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Briscoe, Holmes, author; and Bacharach. Mandate to issue. [14-8041]

FILED
Appellate Case: 14-8041

Document: 01019555886

United States Court of Appeals
Date Filed: 01/19/2016 Circuit 1
Tenth Page:

January 19, 2016
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 14-8041

JANET LEA LILLY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 1:13-CR-00286-SWS-1)

W. Keith Goody, Cougar, Washington, 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, Wyoming, for Plaintiff-Appellee.

Before BRISCOE, HOLMES, and BACHARACH, Circuit Judges.

HOLMES, Circuit Judge.

After federal investigative agents from the United States Drug Enforcement
Administration (“DEA”) arrested her fiancé with a quarter pound of
methamphetamine, Defendant-Appellant Janet Lilly was contacted by

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investigative agents from the Wyoming Division of Criminal Investigation
(“DCI”). She made several incriminating statements to the DCI agents about her
involvement in distributing methamphetamine. The agents suggested that it
would be beneficial to her to cooperate, and she ultimately agreed to serve as a
confidential informant. Approximately eighteen months later, she was
nevertheless indicted for conspiracy to distribute methamphetamine in violation
of federal law. Believing that the investigative agents had promised her federal
immunity from prosecution, Ms. Lilly filed a motion seeking to prevent the
United States from prosecuting her. The district court denied her motion, finding
that neither the DCI nor the DEA had the authority to bind the United States to
any such agreement. Ms. Lilly entered a conditional guilty plea, and now appeals
from the district court’s denial of her motion. Exercising our jurisdiction under
28 U.S.C. § 1291, we affirm.
I
DEA agents arrested Tim Thomas, Ms. Lilly’s fiancé, with approximately a
quarter pound of methamphetamine on November 21, 2011. The DEA agents then
called DCI special agent Chris McDonald and asked him to check the registration
of Mr. Thomas’s vehicle. The vehicle’s registration indicated that Mr. Thomas
resided at an address that Agent McDonald believed to be Ms. Lilly’s home.
Agent McDonald reported to the DEA agents that he had previously received
information that Ms. Lilly was distributing methamphetamine; the DEA then
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asked him to interview her. The DEA agents also called Ms. Lilly to notify her
that Mr. Thomas had been arrested and that DCI agents “would be coming to talk
to” her. Aplt. App. at 172 (Tr. Mot. Hr’g, dated Feb. 21, 2014). She testified that
the DEA told her that “it would be in [Mr. Thomas’s] best interest if [she]
cooperated.” Id.
That same afternoon Agent McDonald and another DCI agent interviewed
Ms. Lilly at her home. During the twenty-minute meeting, she made numerous
incriminating statements directly implicating herself in the distribution of
methamphetamine, including discussing prices, frequency of distribution, and the
quantities in which she dealt, and revealing the identities of some of her
associates. She acknowledged that “saying all of this to [the DCI agents] [was]
an admission of guilt,” Aplee. App., Vol. II, at 6:28–6:30 (Audio Recording of
Nov. 21, 2011 Interview), and they responded that it was “going to help” and that
they were “trying to minimize the damage to [her],” id. at 6:37–6:42. When she
asked if she would be arrested for her actions, the DCI agents told her that they
could not make any promises, but that “if [she] cooperate[d] and help[ed] out,
that’d go a long ways.” Id. at 4:22–4:27.
The following day, November 22, 2011, Ms. Lilly met with DEA agents.
The DEA agents asked Ms. Lilly questions about the sources of her
methamphetamine; the possibility that she would not be prosecuted as a result of

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her cooperation, however, was not discussed. It does not appear that any DCI
agents were present at this meeting.
Next, on December 12, 2011, Ms. Lilly met with Agent McDonald and
another DCI agent. At this meeting, she continued to provide information about
her contacts and local distributors and sent several messages to her source in
Colorado. Agent McDonald was “sure” they discussed the possibility of her
cooperation, but denied promising her immunity from prosecution, Aplt. App. at
119; according to Ms. Lilly, she was informed “that the more [she] helped them,
the more they would be able to help [her],” id. at 181. She claims that the DCI
agents told her that they were going to treat the interview “as a proffer,” which
she understood to mean that “anything that [they talked about] wasn’t going to be
used.” Id. at 183. Nevertheless, Ms. Lilly began to have qualms about speaking
with the DCI agents and engaged an attorney to represent her.
Ms. Lilly, her lawyer, and the DCI agents again met in late December 2011.
Ms. Lilly signed an agreement to work as a confidential informant, and provided
further details about her sources and distribution network. 1 While the DCI agents
again stated that they were amenable to treating the interview as a “proffer,” id. at
137, it does not appear that they explicitly promised that she would not face
federal prosecution. Indeed, the confidential-informant agreement indicated that
1

Between December 2011 and at least May 2012, Ms. Lilly worked as
a confidential informant, conducting controlled buys and assisting with the
execution of a search warrant.
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the agency could “make only recommendations” regarding whether any potential
charges against her should be reduced. Aplee. App., Vol. III, at 4 (Confidential
Informant Agreement, dated Dec. 30, 2011) (emphasis omitted). Ms. Lilly agreed
that the agents never explicitly promised that she would not be prosecuted, but
that it “was just somewhat implied.” Aplt. App. at 193.
Her attorney also admitted that there was no formal non-prosecution
agreement. He had worked with Agent McDonald in the past, “trust[ed] [him]
implicitly,” id. at 165, and believed “there was kind of an implied ‘wink and a
nod’” that if Ms. Lilly cooperated she would not “have to be looking over [her]
shoulder with the feds,” id. at 166. He conceded that the United States Attorney’s
Office for the District of Wyoming was not involved in the discussions.
Ultimately, he did not remember any “specific conversation,” “written
communication,” or “specific reason” why he advised Ms. Lilly to answer the
DCI agents’ questions, id. at 168; her counsel was apparently guided by his
implicit “impression that there would not be federal charges coming,” id. at 156.
But federal charges did come. On November 20, 2013, a grand jury
indicted Ms. Lilly on one count of conspiracy to possess with intent to distribute,
and to distribute, methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. The indictment alleged that the conspiracy occurred
between January 2010 and April 2013. Believing that she had been promised
immunity from federal prosecution, Ms. Lilly filed a “Motion to Enforce
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Agreement of the United States to Not Prosecute the Defendant and Motion in
Limine.” Id. at 12 (Mot., filed Feb. 4, 2014) (capitalization altered). The district
court denied the motion after a hearing, concluding that regardless of whether Ms.
Lilly was promised immunity, “the evidence fail[ed] to establish any actual
authority on the part of the DCI agents to grant” any immunity, id. at 270 (Tr.
Telephonic Oral Ruling, dated Feb. 24, 2014), and even if “the DEA agents were
somehow giving authority to DCI to negotiate immunity on their behalf,” there
was still no evidence “to support that the DEA agents had the authority to do so,”
id. at 267.
Ms. Lilly then entered a conditional guilty plea and reserved her right to
appeal, inter alia, the district court’s denial of her motion to enforce the alleged
non-prosecution agreement. Ms. Lilly was sentenced, pursuant to a plea
agreement, to eighty-seven months’ imprisonment and four years of supervised
release. This timely appeal followed.
II
On appeal, Ms. Lilly claims that she had an agreement with the “United
States that she would not be prosecuted for her criminal conduct occurring
between January 10, 2010 and November 21, 2011[,] and anything she said during
her proffer would not be used against her.” Aplt. Opening Br. at 5. This
contention has both a factual dimension—namely, whether the DCI or DEA
agents actually promised Ms. Lilly federal prosecutorial immunity—and a legal
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dimension—whether the DCI or DEA agents had the authority to promise such
immunity. We focus on the latter aspect of Ms. Lilly’s argument; more
specifically, we assume arguendo that Ms. Lilly has demonstrated the factual
aspect—viz., that either the DCI or the DEA agents promised her immunity from
federal prosecution—and turn our inquiry to whether either group of agents had
the legal authority to enter into such an agreement on behalf of the United States.
“This is a pure issue of law, which we review de novo.” United States v. Ellis,
527 F.3d 203, 205 (1st Cir. 2008). As we explain below, neither agency had the
authority to promise Ms. Lilly federal immunity, and thus any purported
agreement is unenforceable against the United States.
A
In a seminal Supreme Court case that is perhaps most central to the
resolution of Ms. Lilly’s appeal, almost seventy years ago, Justice Frankfurter
wrote:
Whatever the form in which the Government functions, anyone
entering into an arrangement with the Government takes the risk
of having accurately ascertained that he who purports to act for
the Government stays within the bounds of his authority. The
scope of this authority may be explicitly defined by Congress or
be limited by delegated legislation, properly exercised through
the rule-making power. And this is so even though, as here, the
agent himself may have been unaware of the limitations upon his
authority.
Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947); cf. Office of Pers.
Mgmt. v. Richmond, 496 U.S. 414, 420 (1990) (describing Merrill as “the leading
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case in our modern line of estoppel decisions”). Currently, “[i]t is well
established that the federal government will not be bound by a contract or
agreement entered into by one of its agents unless such agent is acting within the
limits of his actual authority.” Dresser Indus., Inc. v. United States, 596 F.2d
1231, 1236 (5th Cir. 1979); see, e.g., Ellis, 527 F.3d at 207 (“When a private
party seeks performance of a promise allegedly made by the government, it must
show that the government representative alleged to have entered into the
agreement had actual authority to bind the United States.”); Saulque v. United
States, 663 F.2d 968, 974 (9th Cir. 1981) (“[O]ne who relies on the act of a
government agent must show that the agent acted within his authority.”); Hicks v.
Harris, 606 F.2d 65, 68 (5th Cir. 1979) (“[T]hose dealing with an agent of the
United States must be held to have had notice of the limitation of his authority.”
(alteration in original) (quoting Wilber Nat’l Bank of Oneonta v. United States,
294 U.S. 120, 123–24 (1935))).
“[D]octrines such as estoppel and apparent authority are not available to
bind the federal sovereign.” Ellis, 527 F.3d at 208 (quoting United States v.
Flemmi, 225 F.3d 78, 85 (1st Cir. 2000)); accord Thomas v. INS, 35 F.3d 1332,
1338 (9th Cir. 1994). But see Restatement (Third) of Agency § 1.01 cmt. c (Am.
Law Inst. 2006) (stating, as a general matter (outside of the governmental
context), that “Actual authority does not exhaust the circumstances under which
the legal consequences of one person’s actions may be attributed to another
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person. An agent also has power to affect the principal’s legal relations through
the operation of apparent authority . . . .”). Thus, “unless the agent had actual
authority, any agreement is ineffectual.” Urso v. United States, 72 F.3d 59, 60
(7th Cir. 1995).
“Actual authority incorporates the concepts of express and implied
authority.” Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1278 (10th Cir.
2000) (quoting Zions First Nat’l Bank v. Clark Clinic Corp., 762 P.2d 1090,
1094–95 (Utah 1988)); see Flemmi, 225 F.3d at 85 (“Actual authority may be
conferred either expressly or by necessary implication.”); H. Landau & Co. v.
United States, 886 F.2d 322, 324 (Fed. Cir. 1989) (“[I]mplied actual authority,
like expressed actual authority, will suffice.”). Express actual authority to bind
the federal government exists “if—and only if—the Constitution, a federal statute,
or a duly promulgated regulation grants such authority in clear and unequivocal
terms.” Flemmi, 225 F.3d at 85; see also Merrill, 332 U.S. at 385–86 (looking at
a regulation to determine the limits of the Federal Crop Insurance Corporation’s
authority to insure the respondent’s crops). On the other hand, actual authority
may be implied “when such authority is considered to be an integral part of the
duties assigned to a [g]overnment employee.” H. Landau & Co., 886 F.2d at 324
(alteration in original) (quoting J. Cibinic & R. Nash, Formation of Government
Contracts 43 (1982)). That is, the authority must be “incidental to some other
express grant of authority.” Thomas, 35 F.3d at 1338; see also Flemmi, 225 F.3d
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at 85 (“[I]n the case of a federal agent, authority to do an act may be implied
when that act is integral to the tasks assigned to him or otherwise necessary for
the due accomplishment of those tasks.”). Because implied actual authority
emanates from an agent’s core competency, “the agent must first possess express
actual authority in the subject area at question” before implied authority may be
invoked. Abrams v. Trunzo, 129 F.3d 1174, 1179 (11th Cir. 1997).
As relevant here, “a defendant who seeks specifically to enforce a promise
. . . contained in a plea agreement or a freestanding cooperation agreement, must
show . . . that the promisor had actual authority to make the particular promise.”
Flemmi, 225 F.3d at 84; see Thomas, 35 F.3d at 1338 (“The rule requiring
compliance by the government with promises made during plea bargaining and
analogous contexts generally requires that the agent be authorized to make the
promise.”). The Fifth Circuit sagely observed the troubling implications of the
counterfactual:
If the rule were otherwise, a minor government functionary
hidden in the recesses of an obscure department would have the
power to prevent the prosecution of a most heinous criminal
simply by promising immunity in return for the performance of
some act which might benefit his department. Such a result could
not be countenanced.
Dresser Indus., 596 F.2d at 1236–37.
Ms. Lilly maintains that DCI agents promised her that she would not face
federal prosecution in return for her cooperation. Alternatively, she argues that

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“the DCI was acting through and under the direction of . . . the DEA.” Aplt.
Opening Br. at 13. Thus, to prevail, she must show that the DCI, acting
independently or on behalf of the DEA, had the actual authority to bind the
United States to a non-prosecution agreement either pursuant to “the Constitution,
a federal statute, or a duly promulgated regulation,” Flemmi, 225 F.3d at 85, or as
an “integral part” of its duties, H. Landau & Co., 886 F.2d at 324 (quoting J.
Cibnic & R. Nash, supra, at 43).
B
The DCI is a division of the Wyoming State Attorney General’s Office, see
Wyo. Stat. § 9-1-611, charged with working in cooperation with “federal, state[,]
and local law enforcement agencies . . . for the efficient investigation of criminal
activity and swift apprehension of persons suspected of violating the criminal
laws of th[e] state,” id. § 9-1-616(a). It is clear that, as state officials acting
independently, the DCI agents “are without authority to bind federal
proceedings.” Johnson v. Lumpkin, 769 F.2d 630, 634 (9th Cir. 1985); accord
United States v. Glauning, 211 F.3d 1085, 1087 (8th Cir. 2000) (“[S]tate and local
government officials have no power to bind the federal government.”).
This rule is grounded in principles of sovereignty and prosecutorial
discretion: “[t]he sovereign not offering immunity has the undeniable right to
protect the integrity of its law enforcement prerogatives” and “[t]his right cannot
be controlled, thwarted, or diminished by another sovereign granting immunity
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from prosecution.” United States v. Barker, 542 F.2d 479, 483 (8th Cir. 1976)
(quoting United States v. First W. State Bank, 491 F.2d 780, 783 (8th Cir. 1974));
see also United States v. Roberson, 872 F.2d 597, 611 (5th Cir. 1989) (“If state
agreements that immunize criminal defendants from state charges could bind
federal prosecutors, state prosecutors would be able to usurp federal prosecutorial
discretion.”). And, in an analogous context of plea agreements, we have held that
“the federal government is not bound by provisions of a state plea agreement . . .
unless it was a party to the state proceedings.” United States v. Sells, 477 F.3d
1226, 1234 (10th Cir. 2007); see United States v. Padilla, 589 F.2d 481, 484 (10th
Cir. 1978) (“We are not persuaded . . . that the United States is bound by the plea
bargain in the state court proceeding. The United States was not a party to the
[state] prosecution and its power to enforce its criminal laws cannot be affected
by any proceedings in the state court.”); see also United States v. Pinter, 971 F.2d
554, 557 (10th Cir. 1992) (noting that “‘[a] cooperation agreement is analogous to
a plea bargain[,]’ and therefore . . . the same analysis applies to both types of
agreements” (alterations in original) (quoting United States v. Carrillo, 709 F.2d
35, 36 (9th Cir. 1983))).
The effect of these authorities here is patent: the DCI agents—acting
independently—did not have the authority, as state officials, to bind the United
States to any purported agreement with Ms. Lilly to secure her cooperation in
exchange for immunity. That is, “even assuming there was an enforceable non12

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prosecution agreement between [Ms. Lilly] and the [DCI agents], it does not bar
the federal prosecution, because state and local officials have no power to bind
the federal government.” United States v. Vinson, 414 F.3d 924, 929 (8th Cir.
2005); accord Glauning, 211 F.3d at 1087; United States v. Sparks, 87 F.3d 276,
279 (9th Cir. 1996); Roberson, 872 F.2d at 611.
C
However, as Ms. Lilly sees it, the United States was a party to the alleged
agreement she struck with the DCI agents because the DCI was acting at the
behest of the DEA, a federal agency. Even assuming this contention is true as a
factual matter, Ms. Lilly still cannot demonstrate that the DEA, as a matter of
law, had the actual authority (acting through the DCI) to grant her immunity from
federal prosecution.
To begin, as to express actual authority, Ms. Lilly points to no federal
statute or regulation authorizing DEA agents to grant immunity to cooperating
informants. See Flemmi, 225 F.3d at 85. Further, regarding implied actual
authority, while the DEA has “broad powers to investigate violations of federal
drug laws,” United States v. Moffett, 84 F.3d 1291, 1293 (10th Cir. 1996), “the
power to investigate does not necessarily encompass (or even reasonably imply)
the power to grant . . . immunity,” Flemmi, 225 F.3d at 87. As Flemmi observed,
“the test is not whether such a power might from time to time prove
advantageous, but, rather, whether such a power usually accompanies, is integral
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to, or is reasonably necessary for the due performance of the task.” Id. at 86.
While granting immunity might be helpful to securing cooperation of witnesses
and developing informants, “[g]iven the many other avenues that exist . . . (e.g.,
money, promises of good words at sentencing), we view the connection between a
promise of immunity and the [DEA]’s duty to investigate crimes as far too
attenuated” to establish that the DEA had implied actual authority to grant Ms.
Lilly immunity. Id.
Indeed, in declining to enforce federal investigators’ promises of immunity,
or other forms of favorable disposition of potential criminal charges, several of
our sister circuits have reasoned in like fashion regarding actual authority.
Specifically, they have indicated that, ordinarily, there is nothing inherent in a
federal investigator’s role that actually authorizes the investigator to make such
promises; instead, there must be a showing that the investigator has received
permission or authorization from a governmental actor that actually possesses
actual authority—notably, a federal prosecutor. See, e.g., United States v.
McInnis, 429 F.3d 1, 5–6 (1st Cir. 2005) (“The Marshal Service is an
investigatory arm of the Department of Justice, not a prosecutorial agency. It
lacks authority deriving from its investigatory role, even when operating in
conjunction with probation officers, to make promises to suspects binding on the
United States Attorney.”); Flemmi, 225 F.3d at 87 (noting in declining to enforce
Federal Bureau of Investigation (“FBI”) promises, “the case law supports this
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result and, at the same time, contradicts the district court’s premise that officials
having lesser authority over prosecutions than United States Attorneys, such as
FBI agents, may bind the United States either to dismiss an indictment or to
refrain from prosecution”); United States v. Streebing, 987 F.2d 368, 372–73 (6th
Cir. 1993) (noting that “the agent must be authorized to make the promise” and
that “the record is devoid of any evidence establishing that [the FBI agent] was
authorized to make promises or representations to induce defendant’s
cooperation”); see also United States v. Fuzer, 18 F.3d 517, 520 (7th Cir. 1994)
(noting that “[the defendant] is still not entitled to have his conviction vacated
because the record contains no evidence that the [Bureau of Alcohol, Tobacco,
and Firearms (“ATF”)] agents promised [the defendant] that he would not be
prosecuted in federal court or that the ATF agents were authorized to bind the
United States Attorney even if they did make such a promise”); cf. United States
v. Hudson, 609 F.2d 1326, 1329 (9th Cir. 1979) (declining to “suggest that federal
agents as a matter of law may never bind the prosecution to promises made to
criminal defendants,” but specifically noting in refusing to enforce U.S. Secret
Service agent’s promise that “there was no allegation that the United States
Attorney knew about the alleged promise or that such acts by [the Secret Service
agent] were sanctioned by the prosecution”).
Moreover, at least one circuit—the Eleventh—has expressly adopted this
position in an analogous context with respect to the DEA; specifically, it
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concluded that the DEA lacks the authority to bind the United States to terms of a
purported plea agreement setting a maximum penalty. United States v. Kettering,
861 F.2d 675, 678 n.1 (11th Cir. 1988) (rejecting defendant’s contention that
DEA agent’s “own belief that he possessed the authority to bind the prosecution
to the five year incarceration maximum should bar the government from
withdrawing from the plea proposal in the interests of fundamental fairness,”
because “the record evidence . . . reveals that the [federal prosecutor] never
authorized the agent to accept a plea agreement”). 2 Accordingly, we discern no
legal foundation for Ms. Lilly’s contention that the U.S. Attorney’s Office for the
District of Wyoming (the federal prosecutor’s office at issue here) should be
bound by any non-prosecution promise that the DEA allegedly allowed the DCI to
make to her.
Ms. Lilly’s contrary arguments are inapposite or otherwise unavailing. For
example, she misguidedly relies on breach-of-plea-agreement jurisprudence from
the Supreme Court and our court. In this regard, she notably discusses our
decision in United States v. Cooper, 70 F.3d 563 (10th Cir. 1995). From Cooper,

2

A panel of our court reached a similar conclusion in a persuasive
nonprecedential decision. See United States v. Hurst, 166 F.3d 1222, 1999 WL
12977, at *3–4 (10th Cir. 1999) (unpublished table decision) (where a DEA agent
supposedly made an oral plea agreement with the defendant, noting that “the
person who allegedly made the promise to the defendant must have been
authorized to do so” and that “[t]here [wa]s no evidence that [the federal
prosecutor] authorized [the DEA agent] to orally close a deal with [the
defendant]”).
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Ms. Lilly divines the proposition that, “[i]f the defendant proffers and undertakes
activities which involve personal risk, such as in this case, the promise made by
the authorities” must be honored. Aplt. Br. at 14 (emphasis added). However,
Ms. Lilly’s reading of Cooper’s holding—as well as that of similar breach-ofplea-agreement cases—is too broad. Cooper’s focus was not on ensuring that
governmental agents of all stripes and classifications keep their promises but,
instead, on enforcing the promissory fidelity of one specific class of
governmental actors—viz., those who are legally authorized to bind the United
States in criminal-prosecution matters before the courts, namely, federal
prosecutors. Indeed, the passage of Cooper upon which Ms. Lilly relies makes
this patent: invoking the Supreme Court’s landmark breach-of-plea-agreement
precedent, Santobello v. New York, 404 U.S. 257 (1971), Cooper refers to “a
promise or agreement of the prosecutor” that “can be said to be part of the
inducement or consideration” and underscores that “such [a] promise must be
fulfilled.” Cooper, 70 F.3d at 565 (emphasis omitted) (quoting Santobello, 404
U.S. at 269).
In Cooper, there was no dispute that the class of governmental actors at
issue (i.e., federal prosecutors) had the actual authority to make binding
commitments for the United States regarding criminal prosecutions; our concern
there was simply whether a member of that class had made a promise that was
subject to enforcement. But here, the question of actual authority is front and
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center. See Dresser Indus., 596 F.2d at 1237 n.4 (“This question of actual
authority readily distinguishes the principal cases relied upon by Dresser. . . . In
Santobello, there was no question that the first prosecutor possessed actual
authority to strike the bargain with the defendant, and the Court did not hesitate
to order that the bargain be kept.”); cf. Hudson, 609 F.2d at 1328 & n.3 (citing,
among other cases, Santobello, and stating, “The federal courts have long been
cognizant of the responsibility of federal prosecutors meticulously to fulfill their
promises. In the instant case, however, the issue is whether a federal agent not
within the United States Attorney’s office may bind the prosecution to promises
made outside his authority.” (emphasis added) (footnote omitted)). And the
critical problem for Ms. Lilly in seeking to bind the United States to a nonprosecution promise is that she cannot identify any alleged governmental official
who had the actual authority to make such a promise. In particular, she cannot
identify any participation by a federal prosecutor—who actually does possess
such authority—in making a non-prosecution promise to her. And, as we have
noted, neither governmental agency that Ms. Lilly has identified as allegedly
having a role in delivering a non-prosecution promise to her—i.e., the DCI or the
DEA—independently possessed the actual authority to do so. Accordingly, rather

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than being “instructive,” as Ms. Lilly contends, Aplt. Br. at 14, Cooper and
similar breach-of-plea-agreement cases are inapposite. 3
Ms. Lilly’s fallback position involves a general appeal to fairness. She
contends that the district court’s ruling—that she was not the beneficiary of a
binding immunity promise—“violates every principal of justice and fair dealing.”
Aplt. Br. at 15. Put succinctly, Ms. Lilly argues that the government “double
crossed” her, and it should not be permitted to unfairly benefit from this wrongful
conduct. Id. at 14. However, regardless of the “hardship” that may result, it is
well established that “anyone entering into an arrangement with the Government
takes the risk of having accurately ascertained” the limits of an agent’s authority.
Merrill, 332 U.S. at 383–84; accord Hicks, 606 F.2d at 68. Ms. Lilly does not
explain why general fairness considerations should trump this well-established

3

Ms. Lilly is mistaken in seeking succor from a couple of district
court decisions that apply the “framework” of the breach-of-plea-agreement cases
to facts analogous to these because those cases elide the actual-authority
distinction between federal prosecutors and government investigative agents when
it comes to binding the United States regarding criminal-prosecution matters. See
In re Doe, 410 F. Supp. 1163, 1166 (E.D. Mich. 1976) (“In this limited context
the government may not rely upon distinctions between express, implied, and
apparent authority among its agents in avoiding the effect of its promise. These
distinctions have meaning for the legal technician, not for the layman dealing
with the ‘government’ in his negotiations.”); see also United States v. Barrett,
390 F. Supp. 1022, 1024 (D.S.C. 1975) (“There can be no distinction between
promises made by prosecutors in the Attorney General’s office and promises
made by agents of the Drug Enforcement Administration.”). We discern no legal
basis for ignoring this actual-authority distinction, given the clear direction of
Merrill and its progeny.
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principle of Merrill and its offspring. Furthermore, Ms. Lilly has not cited to any
Tenth Circuit case where fairness considerations have been given this effect.
To be sure, we acknowledge that some of our sister circuits have
recognized “[a] narrow exception to this rule [i.e., of actual authority] exists
when the government’s noncompliance with an unauthorized promise would
render a prosecution fundamentally unfair.” Flemmi, 225 F.3d at 88 n.4. As the
Ninth Circuit has stated,
In general, a promise made by a government employee other than
the United States Attorney to recommend dismissal of an
indictment cannot bind the United States Attorney. An exception
has been recognized where, although the United States Attorney
was not a party to a cooperation agreement, breach of the
agreement rendered a prosecution fundamentally unfair.
United States v. Williams, 780 F.2d 802, 803 (9th Cir. 1986) (per curiam); see
also United States v. Rodman, 519 F.2d 1058, 1059–60 (1st Cir. 1975) (per
curiam) (upholding dismissal of an indictment where defendant gave “substantial
information, including self-incriminating statements” based on an unfulfilled
promise from the Securities and Exchange Commission (“SEC”) to recommend
non-prosecution because “the unfairness to the [defendant] warranted dismissal”);
cf. United States v. Costello, 750 F.2d 553, 554, 556 (7th Cir. 1984) (where
defendant “contends that an incriminating statement he gave to agents of the
[FBI] should have been suppressed at trial because he made the statement in
contemplation of receiving statutory immunity,” the court reasoned that “[h]ad the

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Government sought appellant’s cooperation knowing immunity was legally
forbidden or had the Government acted without the good faith intent to obtain
immunity, then appellant would have a colorable argument that fundamental
fairness requires reversal of his conviction”). 4
We need not definitively opine here on the propriety of such a fundamentalfairness exception, because even assuming arguendo Ms. Lilly could avail herself
of it, we would conclude that “[t]his case lies well outside the compass of that
seldom-seen exception.” Flemmi, 225 F.3d at 88 n.4. As characterized by the
First Circuit in Flemmi, the exception is a “narrow” one. Id. We have no reason
to doubt this, being cognizant of “the interpretive principle that exceptions to a
general proposition should be construed narrowly.” First Nat’l Bank of Durango
v. Woods (In re Woods), 743 F.3d 689, 699 (10th Cir. 2014); accord City of New
York v. Beretta U.S.A Corp., 524 F.3d 384, 403 (2d Cir. 2008). However, for
present purposes, the more important point is a related one: if the fundamental4

The government contends that Ms. Lilly “has never asserted that this
rare exception should apply in this case.” Aplee. Br. at 28 n.11. Strictly
speaking, this is correct; Ms. Lilly’s briefing does not expressly invoke a
fundamental-fairness exception. However, as discussed below, Ms. Lilly relies
heavily to support her general fairness arguments on the First Circuit’s decision in
Rodman, and some courts seem to view Rodman as a salient example of the
deployment of the fundamental-fairness exception. See Williams, 780 F.2d at 803
(citing and discussing Rodman in connection with its express analysis of the
fundamental-fairness “exception”); cf. Streebing, 987 F.2d at 372 n.4, 373 (giving
extended treatment to Rodman, but concluding that “the prosecution in the case at
hand was not fundamentally unfair”). Accordingly, acting prudently and with an
eye toward ensuring that Ms. Lilly undisputedly receives a full and fair hearing,
we examine this exception here.
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fairness exception is to truly operate as an exception—rather than as a nominal
exception that proverbially swallows the rule—it must exclude from its ambit the
mine-run (i.e., typical) case. See, e.g., First Nat’l Bank of Durango, 743 F.3d at
699 (“Flowing from this interpretive principle—that we must construe exceptions
narrowly—is the related concept that exceptions must not be interpreted so
broadly as to swallow the rule.”); see also Cuomo v. Clearing House Ass’n, 557
U.S. 519, 530 (2009) (eschewing certain reading of a statutory exception “or else
the exception would swallow the rule”). In this regard, we recognize that fairness
concerns may arise in many instances where governmental actors fail to honor
their promises. But, in order for the fundamental-fairness exception to truly
function as an exception to the rule stemming from Merrill—which generally
dictates that, if the governmental actor’s promises are unauthorized, they will not
be enforceable—the exception must delimit its range of application to those cases
where the fairness concerns are especially acute or extraordinary and,
consequently, exclude the mine-run cases where the fairness concerns fall short of
this standard.
And, having thoroughly reviewed the pertinent caselaw, we must conclude
that, aside from perhaps one noteworthy factor that actually does not benefit her,
Ms. Lilly’s case is patently mine-run. Like Ms. Lilly, the typical defendant in
this setting complains that investigators made unfulfilled promises that the
defendant would not be prosecuted or would receive other favorable treatment
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relative to potential criminal charges if the defendant truthfully disclosed
information regarding an investigation—including self-incriminating
information—or actively assisted the investigators in efforts aimed at catching
other possible criminals. See, e.g., Flemmi, 225 F.3d at 82; Streebing, 987 F.2d at
371; Hudson, 609 F.2d at 1328. Accordingly, because Ms. Lilly’s case is minerun, it is not a suitable candidate for application of the fundamental-fairness
exception.
In this regard, in Flemmi, the defendant alleged that the FBI agents assured
him that, if he repeatedly assisted them in an audio-surveillance investigation of
certain organized crime figures, that any incriminating statements by him that the
surveillance captured would not be used against him. See Flemmi, 225 F.3d at 82.
However, the First Circuit reversed the district court’s judgment that those
assurances should be enforced; in so doing, it concluded that the defendant’s
circumstances fell “well outside the compass” of the fundamental-fairness
exception. Id. at 88 n.4. Ms. Lilly’s alleged circumstances are certainly not
significantly more troubling (if at all) than the Flemmi defendant’s; thus,
consistent with the First Circuit, we conclude that (assuming its propriety) the
fundamental-fairness exception offers Ms. Lilly no aid.
As suggested, Ms. Lilly’s case does appear to deviate in one notable respect
from the typical pattern in the investigator-promise setting discussed here;
however, regrettably for her, it does so in a way that arguably dilutes—not
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strengthens—her claim to relief on fundamental-fairness grounds. Specifically,
unlike many of the defendants in this context, Ms. Lilly had the benefit of
counsel’s advice before making at least some of her important decisions regarding
how to respond to the investigators’ alleged promises. Nevertheless, she still
signed an agreement to work as a confidential informant and gave law
enforcement additional details regarding her sources and distribution network. As
we see it, generally speaking, a defendant’s access to counsel will place the
defendant in a comparatively better position than the mine-run defendant, for
whom the fundamental-fairness exception is unavailing. And, at least arguably,
Ms. Lilly was likewise better off. Consequently, as a logical matter, it follows
that the one noteworthy deviation of Ms. Lilly’s case from the mine-run does not
benefit her.
In support of her fairness arguments, like the Flemmi defendant, Ms. Lilly
“places particularly staunch reliance” on the First Circuit’s decision in Rodman.
Flemmi, 225 F.3d at 90. In summarizing the essential facts and holding of this
earlier decision of its court (i.e., the First Circuit), Flemmi stated:
In Rodman, we affirmed dismissal of an indictment where the
defendant was induced to give statements to the Securities and
Exchange Commission (SEC) by a promise that the SEC would
strongly recommend to the United States Attorney that the
defendant not be prosecuted, and the SEC not only failed to make
the recommendation but was actively contemplating the
preparation of a criminal reference report implicating the
defendant.

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225 F.3d at 90.
However, Rodman does not give us pause. Without belaboring the obvious,
we begin by noting that the First Circuit’s decision in Rodman is not binding
precedent for us, and therefore does not oblige us to change course. Moreover,
Rodman is not persuasive for at least two salient reasons. First, like the First
Circuit’s later decision, Flemmi, we consider Rodman distinguishable because the
essence of the alleged fundamental unfairness there was that the governmental
actor (i.e., the SEC), flagrantly and deceitfully reneged on a promise that it was
fully empowered to fulfill—making a non-prosecution recommendation to the
U.S. Attorney—whereas here neither the DCI nor the DEA was ever empowered
to promise Ms. Lilly any form of immunity from prosecution. See Flemmi, 225
F.3d at 90 (noting that Rodman could be “easily distinguished” and that it was “at
a considerable remove from the case at bar” because “[t]here is no hint that the
unfulfilled promise in Rodman . . . was beyond the promisor’s authority”); see
also Hudson, 609 F.2d at 1329 n.4 (distinguishing Rodman, inter alia, because
“[i]n that case, the promise which was unfulfilled, was within the power of the
SEC”).
And, second, in upholding the district court’s ruling, Rodman relied upon
the supervisory power of federal courts, see, e.g., Streebing, 987 F.2d at 372 n.4
(in discussing Rodman, noting it “held the district court did not abuse its
supervisory powers by dismissing the indictment for unfairness”); however, under
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controlling precedent from the Supreme Court and our circuit, this pathway for
relief is too narrow for Ms. Lilly to travel. Therefore, the substantive premise for
Rodman’s holding (i.e., supervisory power) would not support a like outcome
here.
More specifically, in Rodman, the court concluded: “In light of the failure
of the SEC to comply with what the district court found to be its agreement, the
district court’s view that the unfairness to the [defendant] warranted dismissal of
the indictment was not an abuse of the court’s supervisory function.” 519 F.2d at
1059–60. As support, Rodman cited two of the Supreme Court’s seminal
supervisory-power cases: Mallory v. United States, 354 U.S. 449 (1959) and
McNabb v. United States, 318 U.S. 332 (1943). 5 See Rodman, 519 F.2d at 1060.
Since these two decisions, the Court has had occasion to explicate the central
concerns of this power:
“[G]uided by considerations of justice,” and in the exercise of
supervisory powers, federal courts may, within limits, formulate
procedural rules not specifically required by the Constitution or
the Congress. The purposes underlying use of the supervisory
powers are threefold: to implement a remedy for violation of
recognized rights; to preserve judicial integrity by ensuring that
a conviction rests on appropriate considerations validly before
5

In Corely v. United States, the Supreme Court recognized that the socalled McNabb-Mallory rule “under which an arrested person’s confession is
inadmissible if given after an unreasonable delay in bringing him before a judge,”
was later limited by 18 U.S.C. § 3501(c). 556 U.S. 303, 306, 313–14 (2009).
This subsequent history of the two cases has no appreciable impact on their
standing as seminal examples of the Court’s invocation of the supervisory power
of federal courts.
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the jury; and finally, as a remedy designed to deter illegal
conduct . . . .
United States v. Hasting, 461 U.S. 499, 505 (1983) (alteration in original)
(citations omitted) (quoting McNabb, 318 U.S. at 341); see United States v.
Payner, 447 U.S. 727, 735 n.8 (1980) (”[W]e agree that the supervisory power
serves the ‘twofold’ purpose of deterring illegality and protecting judicial
integrity.”); see also McNabb, 318 U.S. at 340 (“[T]he scope of our reviewing
power over convictions brought here from the federal courts is not confined to
ascertainment of Constitutional validity. Judicial supervision of the
administration of criminal justice in the federal courts implies the duty of
establishing and maintaining civilized standards of procedure and evidence.”).
But the Court has “called for a restrained application of the supervisory power”
and underscored that the power should be “applied with some caution.” Payner,
447 U.S. at 734–35; see Hasting, 461 U.S. at 506–07 (noting that “reversals of
convictions under the court’s supervisory power must be approached ‘with some
caution,’ and with a view toward balancing the interests involved” (citation
omitted) (quoting Payner, 447 U.S. at 734)).
Our decisions have demonstrated scrupulous fidelity to the Court’s
restrained and circumspect approach to the exercise of the supervisory power.
See, e.g., United States v. Gamble, 737 F.2d 853, 859–60 (10th Cir. 1984) (though
acknowledging that the government had “enmeshed in criminal schemes

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fabricated entirely by government agents a black doctor who had no criminal
record and with respect to whom the agents had no apparent hint of a
predisposition to criminal activity,” and had “with their elaborate machinations,
sowed the seeds of criminality and brought defendant into their scheme,” we
concluded that “the breadth of the Supreme Court’s language in” Payner “requires
us to conclude . . . that we may not fashion a ‘sub-constitutional’ rule to permit
dismissal of this case because of the government agents’ conduct”); see also
United States v. Kilpatrick, 821 F.2d 1456, 1475 (10th Cir. 1987) (“We remain
convinced that the drastic remedy of dismissal of an indictment, whether premised
on due process or supervisory powers theories, cannot be exercised without a
significant infringement on the grand jury’s ability to exercise independent
judgment.” (emphasis added)).
In light of this controlling precedent from the Supreme Court and our own
court, we would be hard-pressed to conclude that the substantive premise for
Rodman’s holding—i.e., supervisory power—could afford Ms. Lilly any relief.
More specifically, Ms. Lilly has not demonstrated that we should enforce the
investigators’ alleged immunity promises to her under this narrowly
circumscribed power because, as we have demonstrated, those alleged promises
were, first and foremost, unauthorized, and thus our failure to enforce them would
not implicate the integrity of the judiciary or violate Ms. Lilly’s recognized
rights; nor were the alleged promises tainted by any illegality. Consequently, for
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this second reason as well, Rodman is unpersuasive and cannot guide our
resolution of this case. Therefore, we reject in full Ms. Lilly’s appeal to fairness.
In sum, without the United States Attorney’s Office for the District of
Wyoming’s participation in, or authorization of, the DCI agents’ alleged promises
of immunity to Ms. Lilly, those promises are not enforceable against the United
States. 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. 6
III
For the foregoing reasons, we AFFIRM the decision of the district court.

6

We note one line of argument that Ms. Lilly has not pursued in
contending that the agreement she allegedly reached should be binding on the
United States. “In principle, the government may be bound by an unauthorized
agreement if a properly authorized official subsequently ratifies it.” Flemmi, 225
F.3d at 90; accord Monarch Assurance P.L.C. v. United States, 244 F.3d 1356,
1360 (Fed. Cir. 2001). Ms. Lilly does not allege that federal prosecutors here
either expressly ratified the purported agreement, or, with knowledge of the grant
of immunity, “fail[ed] to repudiate it in a timely manner, and accept[ed] benefits
under it.” Flemmi, 225 F.3d at 90. Therefore, we do not consider such an
argument; by failing to raise it in her briefs, Ms. Lilly waived it. See, e.g., United
States v. Cervini, 379 F.3d 987, 994 n.5 (10th Cir. 2004) (“Arguments not raised
by the parties in their briefs are deemed waived.”).
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