FILED

United States Court of Appeals

Tenth Circuit

January 19, 2016

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JANET LEA LILLY,

Defendant-Appellant.

No. 14-8041

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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