United States District Court, D. Montana, Helena Division
FINDINGS OF FACT, CONCLUSIONS OF LAW &
CHARLES C. LOVELL UNITED STATES DISTRICT JUDGE.
the Court is Defendant Jada Marie Johnson's Motion to
Dismiss Indictment. (Doc. 142). The motion came on for
hearing on June 18, 2019. Defendant was represented by her
counsel, Michael Donahoe, and the United States was
represented by Assistant United States Attorney Ryan Weldon.
The Court requested post-hearing briefing and Defendant filed
her reply brief on June 24, 2019. The Court has considered
the parties pre and post hearing briefing and documents filed
by the parties and the testimony from the hearing and is
prepared to rule on Defendant Johnson's motion to
1, 2019, the grand jury returned a 15-count indictment
charging Defendant Johnson and her do-defendant, Dominque
Hamilton, with five counts of bank fraud, five counts of wire
fraud, and five counts of aggravated identity theft. Both
defendants appeared for an arraignment before Magistrate
Judge Lynch on May 15, 2019, and were released pending
further proceedings in this case. The Court entered a
scheduling order on May 16, 2019, setting trial for June 17,
2019. Since that time, Defendant Hamilton has entered into a
plea agreement with the United States and entered guilty
pleas as to Counts I and XI of the indictment.
Johnson moves to dismiss the indictment on the grounds that
she became a confidential informant for the Missouri River
Drug Task Force based on a confidential informant agreement
that she understood as an agreement that “her fraud
case (the instant case) would remain in state court and that
she would likely receive a sentence of probation.”
(Doc. 15 at 5).
Defendant acknowledges that the United States cannot be bound
by a cooperation agreement to which the United States
Attorney is not a party, she relies on United States v.
Williams, 780 F.2d 802, 803 (9th Cir. 1986),
to argue that “even if the U.S. Attorney was not a
party to the cooperation agreement, it would be fundamentally
unfair not to enforce it.” (Doc. 16 at 2). She argues
in the alternative, relying on United States v.
Flemmi, 225 F./3d 78, 90 (1st Cir. 2000) that
the government should be bound by the agreement because it
was ratified by Assistant United States Attorney Weldon.
(Doc. 16 at 2).
of a cooperation agreement between the United States and the
individual offering to cooperate requires that the person
making the promise not to prosecute has the authority to make
the promise and that the person to whom the promise is made
relies on the promise to her detriment. Thomas v.
INS, 35 F.3d 1332, 1337 (9th Cir. 1994). The
United States Court of Appeals recognized in Thomas
that a “cooperation agreement is analogous to a plea
agreement.” Id. State officials can no more
bind the federal government to the terms of a cooperation
agreement than they can bind the federal government to the
terms of a plea agreement. See United States v.
Cordova-Perez, 65 F.3d 1552, 1554 (9th Cir.
1995), overruled on other grounds as recognized by In re
Gallaher, 548 F.3d 713, 718 n. 7 (9th Cir.
2008). Similarly, law enforcement agents employed by the
federal government cannot, as a general rule, bind the United
States Attorney to a promise as to whether a prosecution will
be initiated in federal court. Id.
United States Court of Appeals has recognized an exception to
the general rule “where, although the United States
Attorney was not a party to a cooperation agreement, breach
of the agreement render[s] a prosecution fundamentally
unfair.” Williams, 780 F.2d at 803. The Ninth
Circuit rejected the defendant's argument that his
prosecution was fundamentally unfair in Williams,
noting that Williams “was not induced by the agreement
to incriminate himself, to furnish information useful to the
government in developing the case against him, or to plead
guilty, nor did he suffer any other prejudice that might
render his conviction unfair. Id.
principle, the government may be bound by an unauthorized
agreement if a properly authorized official subsequently
ratifies it.” United States v. Flemmi, 225
F.3d 78 at 90. In the absence of an express ratification,
“ratification can be implied only when the ratifying
office knows of the agreement, fails to repudiate it in a
timely manner, and accepts benefits under it.”
Detective Zapata, of the Helena Police Department, was a
credible witness and testified that he spoke with Ms. Johnson
on January 16, 2018 about her involvement in the allegedly
unlawful use of a debit card that eventually led to the
federal prosecution in this case.
Although Ms. Johnson voluntarily met with Detective Zapata at
the law enforcement center, he advised her of her
Miranda rights and she waived those rights.
Detective Zapata informed Ms. Johnson that there was a
possibility that the charges relating to her allegedly
unlawful use of a debit card could be charged in federal
court because her activity crossed state lines.
Johnson asked Detective Zapata if there was a way she could
avoid getting charged, claiming that she knew someone else
who had avoided charges. Detective Zapata was familiar with
the individual she identified and told her that individual
was charged. The only promise that Detective Zapata made to
Ms. Johnson was that she would be charged.
Detective Zapata did not know during his January 16, 2018,
meeting with Ms. Johnson that she would be charged with a
Detective Zapata explained the recording system used during
his interview with Ms. Johnson, which could only be shut off
using a toggle switch located outside the room. Detective
Zapata did not turn off the recording system until he
concluded his interview concerning the fraud case and left
the room to get Detective Snelling. Detective Zapata was not
in the room during Detective Snelling's conversation with
Johnson testified that she asked Detective Zapata what she
could do to get out of trouble, but he refused to answer her
question until the recording was shut off. Her statement was
contradicted by Detective Zapata's explanation of the
recording system, which the Court deems credible. At any
rate, the parties appear to agree that Detective Zapata
brought Detective Snelling in to speak with Ms. Johnson about
becoming a confidential informant and was not present during
their conversation, which was not recorded.
Detective Zapata was aware that Ms. Johnson signed an
agreement to become a confidential informant because he
witnessed the agreement.
Detective Zapata spoke with Special Agent Sampson of the FBI
about the possibility of federal charges on January 18, 2018,
which is when he learned that the fraud case against Ms.
Johnson would be considered for federal prosecution.
Detective Snelling, of the Helena Police Department, was a
credible witness and testified that he spoke with Ms. Johnson
on January 16, 2018, about the possibility of her becoming a
confidential informant for the Missouri River Drug Task Force
(MRDTF or Task Force).
Task Force was “founded in 1990 as a multi-agency task
force to address drug-related crimes.” (Doc. 37 at 2).
Although the Task Force receives some federal funding and
federal agents can be assigned to the Task Force, the Task
Force operates independently from and is not supervised by
the United States Attorney's Office although it can and
does present cases to the United States Attorney's
Office, just as other law enforcement agencies present cases
to the United States Attorney's Office. (Doc. 38-1 at 2).
During his January 16, 2018, meeting with Ms. Johnson,
Detective Snelling convinced her to fill out and sign the
“Missouri River Drug Task Force Confidential Informant
Agreement” (CI Agreement).
the extent that anything in the CI agreement can be construed
as a promise, it was, at most, a promise that Detective
Snelling would make a favorable ...