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United States v. Johnson

United States District Court, D. Montana, Helena Division

July 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JADA MARIE JOHNSON, and DOMINIQUE AURTHERALLE HAMILTON Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER

          CHARLES C. LOVELL UNITED STATES DISTRICT JUDGE.

         Before 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 dismiss.

         BACKGROUND

         On May 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.

         Defendant 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).

         Although 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).

         LEGAL STANDARD

         Enforcement 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.

         The 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.

         “In 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.” Id.

         FINDINGS OF FACT[1]

         1. 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.

         2. 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.

         3. 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.

         4. Ms. 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.

         5. Detective Zapata did not know during his January 16, 2018, meeting with Ms. Johnson that she would be charged with a federal offense.

         6. 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 Ms. Johnson.

         8. Ms. 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.

         9. Detective Zapata was aware that Ms. Johnson signed an agreement to become a confidential informant because he witnessed the agreement.

         10. 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.

         11. 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).

         12. The 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).

         13. 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).[2]

         14. To 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 ...


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