United States v. Johnson

• Decision Date: 08 August 2022
• Docket Number: 20-3272
• Citation: 43 F.4th 771
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

43 F.4th 771

UNITED STATES of America, Plaintiff-Appellee,

v.John JOHNSON, Defendant-Appellant.

No. 20-3272

United States Court of Appeals, Seventh Circuit.

Argued December 1, 2021

Decided August 8, 2022

Eugene L. Miller, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Michael I. Leonard, Attorney, Leonard Trial Lawyers, Chicago, IL, for Defendant-Appellant.

Before Manion, Brennan, and Jackson-Akiwumi, Circuit Judges.

Brennan, Circuit Judge.

While on federal supervised release, John Johnson agreed to cooperate with local police. Federal prosecutors did not object, and his cooperation was allowed by a federal judge. Later, federal drug charges were brought against Johnson, which he argued should be dismissed under the cooperation agreement. But there was no federal non-prosecution agreement, and an agency theory did not bind federal authorities under the cooperation agreement. The Government also did not suppress favorable evidence material to Johnson's defense. So, we affirm.

I

John Johnson was convicted of a series of state drug charges and received a lengthy sentence. He later pleaded guilty to a federal offense for distributing cocaine, which resulted in a 60-month prison sentence. In 2011, he was released from federal custody under supervised release. But on two separate occasions in 2014, Johnson sold cocaine to a Drug Enforcement Administration confidential informant. At that time, he was not prosecuted for either drug offense.

The Proposed Cooperation Agreement. Sixteen months later, Jonathan Jones and David Dailey, two Decatur, Illinois Police Department officers, approached Johnson on the street. The officers told Johnson they knew about his 2014 drug transactions and showed him incriminating evidence. They proposed that Johnson covertly assist local law enforcement in providing information about illegal drug activity and various crimes. Johnson agreed to cooperate in exchange for leniency, although he and the officers understood that the proposed agreement would need to be approved by the federal government in accord with a condition of Johnson's federal supervised release.

The proposed agreement was not reduced to writing, and the parties now dispute its terms. According to Johnson, he reasonably believed that the officers promised him immunity from all prosecution for the 2014 drug transactions, including federal immunity. The Government denies that anyone ever promised Johnson immunity from federal prosecution.

After Johnson agreed to cooperate, Decatur officers contacted his federal probation officer, Gwen Powell, to request federal permission for Johnson to cooperate. According to a violation memorandum Powell later prepared for a revocation proceeding, the officers "requested permission for [Johnson] to cooperate with them and in exchange, no charges would be filed against the offender."

Before seeking permission from the district court, Powell informed Assistant United States Attorneys Jason Bohm and Eugene Miller of the proposed cooperation agreement and requested their position. Powell emailed Bohm that "Johnson wants to cooperate and work with Decatur PD," to which Bohm replied that he had "no objection." Bohm also forwarded Powell's email request to Miller, who replied he "ha[d] no objection to John Johnson's request to cooperate with the Decatur Police Department."

After receiving approval from Bohm and Miller, Powell emailed Judge Harold A. Baker of the United States District Court for the Central District of Illinois. Bohm and Miller received a copy of this correspondence. Powell's email informed Judge Baker of Johnson's two controlled drug buys in 2014, and then stated:

Decatur police officers want offender Johnson to cooperate with them and work as a confidential information. [sic] In exchange, Macon County will not likely charge and/or convict him for the drug related offenses in 2014 and will not convict him for a recent Driving with a Revoked License. I have discussed this matter with AUSA Bohm and AUSA Miller. Neither of us have any objections to Johnson cooperating with Decatur PD. As a condition of offender Johnson's supervised release, he must not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court. Please advise is [sic] you agree for Johnson to cooperate with the Decatur Police Department as a confidential informant.

In response, Judge Baker instructed Powell to "[g]o ahead and allow" Johnson to cooperate with the Decatur Police Department. At no point during Powell's communications with the United States Attorney's Office or Judge Baker did she ever request, or receive approval for, a federal non-prosecution agreement.

After receiving Judge Baker's approval, Jones and Powell separately contacted Johnson to inform him that the federal government had approved the proposed agreement and that Johnson's cooperation could begin.

The Written Agreement. Approximately two months later, Jones approached Johnson with a written Confidential Informant Agreement. According to Johnson, Jones stated that the document was a "formality" to memorialize in writing "the agreement we had already made and that had already been approved." The three-page document did not mention a federal non-prosecution agreement. It states that "[t]he Decatur Police Department/Macon County Sheriff's Office does not promise or agree to any consideration by a prosecutor or a court in exchange for [Johnson's] cooperation," and that Johnson had "no immunity or protection from investigation, arrest or prosecution" for any unauthorized conduct. Johnson also agreed "not to participate in any criminal activity."

Johnson testified that he signed the agreement without reading it, relying on Jones's representations that it was only a formality. Johnson also claimed that Jones did not review the terms of the written agreement with him prior to signing it. Jones disputed this, testifying at Johnson's revocation proceeding that he went over the form "line-by-line" with Johnson before they each signed it.¹

Federal Prosecution for the 2014 Drug Offenses. Twice in 2016, Johnson tested positive for cocaine and thus violated the terms of his federal supervised release and cooperation agreement. He also admitted to not being honest with law enforcement about a previously undisclosed cocaine supplier in Chicago, from whom Johnson had purchased several kilograms of cocaine in 2016. The Decatur Police Department later acquired information that suggested Johnson was continuing to engage in cocaine trafficking while cooperating with officers.

In February 2017, the district court issued a warrant for Johnson's arrest for violating his conditions of supervised release. A federal grand jury indicted Johnson on two counts of distributing a controlled substance related to the drug deliveries in 2014.

Nearly two years later, Johnson moved to dismiss the indictment. He argued he had received federal immunity from prosecution for the 2014 drug offenses through his cooperation agreement with the Decatur Police Department. He relied on his affidavit and Powell's memo, in which she wrote that Decatur officers had told her "no charges would be filed against the offender" in exchange for his cooperation.

Johnson also filed a motion to permit Powell to testify at an evidentiary hearing and to produce her records, which included Powell's notes taken while supervising Johnson and related emails. The Government did not object. After reviewing Powell's records in camera, the court provided the parties with redacted copies, which included the emails between Powell and Decatur officers, Bohm, Miller, and Judge Baker. The court permitted Johnson to subpoena Powell to appear at an evidentiary hearing.

The day before that hearing, Johnson filed a second motion to dismiss the indictment, this time as a discovery sanction. Johnson asserted the Government had not complied with his discovery request to produce documents connected with his cooperation agreement. He pointed to the redacted emails the court provided to the parties from Powell's records, contending the Government should have produced its copies of the emails in response to previous discovery requests.² Notwithstanding the late production of Powell's emails, Johnson's counsel informed the court that the defense was ready to proceed.

On January 7, 2020, the district court held an evidentiary hearing, at which Powell and Johnson testified. In response to questions about her memo, in which she had written that "no charges would be filed against the offender" in exchange for Johnson's cooperation, Powell clarified that she understood the Decatur officers had promised Johnson prosecutorial immunity "by the state or the county if he fully cooperated." When asked whether she ever recalled telling a defendant "if they cooperated they would never be charged with a federal offense," Powell said she "[n]ever told them that." And when asked if she ever told this to Johnson, Powell responded no.

Johnson, on the other hand, testified that Powell had told him he would not face a federal "sanction[ ]" if he cooperated with the Decatur Police Department. Johnson also claimed that during their initial encounter, Jones had said Johnson would not face federal prosecution as part of the unwritten cooperation agreement. Johnson admitted that he had not spoken to anyone from the United States Attorney's Office about a cooperation agreement, and he testified he had signed the written Confidential Informant Agreement without reading it.

After Johnson's testimony, the district court concluded it "simply cannot find that there was a federal agreement not to prosecute." The court reasoned that, at most, "this record would support ... a finding that the assistant U.S. attorneys had no problem supporting his cooperating with the state authorities. But ... there's nothing in this record ... to suggest that there was a...