United States v. Gibson

• Decision Date: 18 March 2014
• Docket Number: No. 4:13–cr–000081–JEG.,4:13–cr–000081–JEG.
• Citation: 4 F.Supp.3d 1089
• Parties: UNITED STATES of America, Plaintiff, v. William Earl GIBSON, III, Defendant.
• Court: U.S. District Court — Southern District of Iowa

4 F.Supp.3d 1089

UNITED STATES of America, Plaintiff,

v.William Earl GIBSON, III, Defendant.

No. 4:13–cr–000081–JEG.

United States District Court,

S.D. Iowa,

Central Division.

Signed March 18, 2014.

Craig P. Gaumer, Clifford D. Wendel, U.S. Attorney's Office, Des Moines, IA, for Plaintiff.

Dean A. Stowers, Stowers & Sarcone PLC, West Des Moines, IA, for Defendant.

ORDER

JAMES E. GRITZNER, Chief Judge.

This matter comes before the Court on Motion to Dismiss Indictment and Motion to Suppress by Defendant William Earl Gibson, III (Gibson). The Government resists. A hearing on the matter was conducted on December 16, 2013.¹ Attorney Dean A. Stowers represented Gibson. Assistant U.S. Attorney Craig P. Gaumer represented the Government. The matter is fully submitted and ready for disposition.

I. BACKGROUND

In February 2013, Special Agent Phillip Pritchett (Special Agent Pritchett) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) received information that Gibson was in possession of illegal automatic weapons, which were located at the residence of Gibson's father in Dexter, Iowa. After discussing the case with Assistant U.S. Attorney Cliff Wendel (AUSA Wendel), Special Agent Pritchett applied for and obtained a federal search warrant on February 26, 2013, to seize any illegal weapons located at the father's residence.

After the warrant was approved by Magistrate Judge Ross A. Walters, Special Agent Pritchett and AUSA Wendel had a conversation about the case in AUSA Wendel's office. AUSA Wendel expressed to Special Agent Pritchett that he just wanted to seize the guns and was not interested in prosecuting Gibson based on his lack of criminal history and only possessing a couple of automatic weapons.

On March 6, 2013, Special Agent Pritchett executed the search warrant. Special Agent Pritchett had been informed that Gibson had an anti-government sentiment and could potentially be hostile to law enforcement officers. To diffuse any potential tension that may have occurred when executing the search warrant, Special Agent Pritchett decided to approach Gibson away from his father's residence. Special Agent Pritchett had an officer with the Stuart, Iowa, Police Department place a phone call to Gibson to inform him that some of his mail had been stolen and he needed to come to the Stuart Police Department to retrieve his mail.

As Gibson arrived at the police station and exited his vehicle, Special Agent Pritchett observed Gibson pull a handgun from his waistband and place it under the driver's seat of his vehicle. Special Agent Pritchett, along with other ATF and local law enforcement officers, approached Gibson as he walked toward the police station and informed Gibson that they had a search warrant for Gibson's elderly father's residence. Special Agent Pritchett explained to Gibson that he wanted to make the search as quick as possible and he didn't want to upset Gibson or Gibson's ill father. Described as a tactic to prevent a potential hostile situation, Special Agent Pritchett told Gibson that so long as he was cooperative, the U.S. Attorney's Office was not interested in prosecuting him based on his lack of criminal history and only possessing two machine guns.²

During the initial confrontation, Gibson proclaimed, “Oh, we're going to do this again,” and informed Special Agent Pritchett that the ATF searched Gibson's father's home in the late 1970s and seized a number of machine guns, explosives, and hand grenades. Hrg. Tr. 14:10–14:23, ECF No. 39. Neither Gibson nor his father were prosecuted after the first occasion when the ATF seized weapons from Gibson's father's home, and Gibson didn't expect anything to happen on this occasion. On this record, the Court can conclude Special Agent Pritchett and AUSA Wendel were not aware prior to the execution of the search warrant that ATF agents had previously seized weapons from Gibson.

Special Agent Pritchett and Gibson then went to the residence of Gibson's father and conducted the search. Gibson was read his Miranda³ rights, which Gibson subsequently waived. With cooperation and assistance from Gibson, Special Agent Pritchett was able to locate three machine guns and a short-barreled Uzi—all of which are illegal to possess. The search also revealed several parts kits that can be used to convert semi-automatic firearms into machine guns. Special Agent Pritchett testified that Gibson said he eventually would have used those kits to modify semi-automatic weapons into machine guns.

During the search of his father's residence, Gibson informed Special Agent Pritchett that he also possessed a number of guns and parts kits at his personal residence. Special Agent Pritchett then obtained a signed consent from Gibson to search Gibson's personal residence. Special Agent Pritchett subsequently located and seized a machine gun and numerous parts kits from Gibson's residence.

A few weeks after the search, Gibson called Special Agent Pritchett to inquire about the possibility of regaining possession of the seized firearms. During their conversation, Gibson stated to Special Agent Pritchett, “you kind of gave me the impression last time that [there] might still be a case against me ... when you told me that I wasn't going to be prosecuted.” Tr. of Phone Call, Def. Hrg. Ex. B. Special Agent Pritchett then told Gibson, “The U.S. Attorney's Office wasn't that interested in prosecuting you early on before we knew that you were hit by ATF back in the 70s. That's got them thinking that they may change their mind. I don't know that that will happen, but that's a possibility.” Id.

On July 23, 2013, the Grand Jury issued a one-count Indictment charging Gibson with being in possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Gibson filed a Motion to Dismiss Indictment and a Motion to Suppress on November 8, 2013. The Government resists the Motion to Dismiss but concedes some issues raised in the Motion to Suppress.

II. DISCUSSIONA. Motion to Dismiss Indictment

Gibson seeks to dismiss the Indictment arguing that the Government breached a binding agreement not to prosecute. Gibson contends the Government offered a non-prosecution agreement when Special Agent Pritchett told Gibson that the U.S. Attorney's Office would not prosecute him for possessing machine guns if he cooperated during the search. Gibson argues that Special Agent Pritchett was authorized to enter into the alleged non-prosecution agreement because prior to executing the search warrant, AUSA Wendel disclosedto Special Agent Pritchett that he did not intend to prosecute Gibson. Gibson asserts that he fully complied with the terms of the alleged agreement by cooperating with law enforcement during the search, waiving his Miranda rights, admitting to possessing the illegal firearms, and consenting to a subsequent search of his personal residence where an additional illegal firearm and parts kits were seized.

The Government argues that it is not bound by Special Agent Pritchett's statement because Special Agent Pritchett did not have the authority to make a non-prosecution agreement on behalf of the U.S. Attorney's Office. The Government avers that federal agents do not have authority to offer immunity, and the decision to prosecute rests solely with the U.S. Attorney's Office. The Government maintains that AUSA Wendel's statement to Special Agent Pritchett was merely an “off-the-cuff comment” that did not discuss the grant of immunity or authorize Special Agent Pritchett to convey the message to Gibson. Gov't Post Hearing Br. 5, ECF No. 41. The Government contends that Special Agent Pritchett made the statement to Gibson as a tactical decision, without any actual authority from the U.S. Attorney's Office, to help ease any potential hostile behavior that may have arisen during the execution of the search warrant.

“Cooperation-immunity agreements are contractual in nature and subject to contract law standards.” United States v. Johnson, 861 F.2d 510, 512 (8th Cir.1988) (citing United States v. Brown, 801 F.2d 352, 354 (8th Cir.1986)). “With an agreement not to prosecute, parties agree that the defendant's cooperation is sufficient consideration for the government's promise of immunity.” Id. (citing United States v. McGovern, 822 F.2d 739, 745 (8th Cir.1987)). As a general rule, promises made by the Government pursuant to a non-prosecution agreement must be upheld, and the Government will only be excused of its performance by a material breach. United States v. Hyles, 521 F.3d 946, 952 (8th Cir.2008). However, in order for a non-prosecution agreement to be enforced, the agent must have the authority to make the promise, and the defendant must detrimentally rely on the promise. United States v. Flemmi, 225 F.3d 78, 84 (1st Cir.2000) (“[A] defendant who seeks specifically to enforce a promise, whether contained in a plea agreement or a freestanding cooperation agreement, must show both that the promisor had actual authority to make the particular promise and that he (the defendant) detrimentally relied on it. If either part of this showing fails, the promise is unenforceable.” (internal citations omitted)).

The first issue, then, is whether Special Agent Pritchett was authorized to enter into an immunity agreement on behalf of the U.S. Attorney's Office. See Margalli–Olvera v. INS, 43 F.3d 345, 353 (8th Cir.1994) (“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” (quoting Thomas v. INS, 35 F.3d 1332, 1338 (9th Cir.1994))). It is well established that, absent express authority from the U.S. Attorney's Office, federal agents, such as ATF agents, do not have actual authority to bind the Government to non-prosecution agreements as the decision to prosecute rests solely at the discretion of the U.S. Attorney's Office. See Flemmi, 225 F.3d at 91 (...