Tulsa Attorney BlogOklahoma’s Federal Appeals Court Okays Prosecution of Confidential Informants

U.S. Attorneys Not Bound by DEA Agreement

Tulsa Oklahoma attorney confidential informantWhen police say your help in other investigations will go a long way with prosecutors weighing charges against you, does that mean they are making a deal with you? Don’t bet on it.

In fact, according to a 10th Circuit Court of Appeals case published in January, 2016, the U.S. Attorney’s office does not have to go along with favorable recommendations DEA agents promise to criminal defendants. To put it bluntly, investigators’ written promise of a favorable recommendation might not be worth the paper it is printed on.

The case involved a woman indicted for conspiracy to distribute methamphetamine. DEA agents approached her after her fiancee was arrested with a quarter pound of meth. His vehicle was registered to an address they shared. Recognizing the address as a possible meth-trade location, they went to see her.

Believing agents’ suggestion that she could help her fiancee by cooperating with them, she began revealing details of a methamphetamine distribution network. Later, she entered a signed agreement to work as an undercover informant. A year and a half later, prosecutors nonetheless charged her with conspiracy to distribute methamphetamine. No problem, the 10th Circuit said.

Even though it is published precedent, the case is not exactly earth shattering. The written deal DEA agents tendered explicitly stated it was not a binding agreement against prosecution. The agency can “make only recommendations” to federal prosecutors, agents had told the woman.

On the other hand, it is easy to understand the woman’s belief that DEA agents represent the government as a whole. They work hand in hand with federal prosecutors. Why would prosecutors not be bound by the DEA agents’ promises, or at least amenable to their suggestions of leniency?

If the language on the paper left ample room for doubt, the woman’s subsequent risky activities as an undercover informant would be reason for her to believe she was making friends with the prosecution. She conducted multiple controlled purchases of drugs for DEA agents. She went so far as to help execute a search warrant.

She even had her attorney’s blessing, according to the 10th Circuit. He had worked with the same DEA agent in the past. He trusted those particular agents to pull strings in the prosecutors’ office. They did not.

The 10th Circuit noted that the written agreement did not require the DEA to deliver anything. Even if it did, the court said, that is beside the point. Their decision explored another question: does the DEA have the authority to make promises related to prosecution? They do not, the court concluded. See U.S. V Lilly, No. 14-8041 (10th Cir., Jan. 19, 2016)

The theory is simple. A government employee can only act within the scope of their authority. Otherwise, low-level government employees could enter agreements contrary to the will of elected representatives. That control on authority is how we assure voters run the government.

The 10th Circuit cited what it called a seminal U.S. Supreme Court as the basis for its decision. In Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947) the U.S. Supreme Court said, “[A]nyone 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 1947 court’s cautionary advice explained that government employees might not even know the limits of their power to make deals. When it comes to dealing with the government, the name of the game is let the buyer beware.

Then what happens when federal agents hint about a deal they cannot deliver? Many times, nothing. Simply put, if you take a deal like that, you lose.

Problems arise when agents repeatedly make wink-and-nod deals they keep, then one day, for whatever reason, cannot or will not carry out their end of an implicit bargain. The lesson in this case is, if you plan to make a deal to avoid prosecution, make the deal with prosecutors. Make sure the language of the deal is binding.

Unless an Oklahoma defendant appealed a state case to federal court on a constitutional issue, the case would not be a binding precedent for state court. As the federal appeals court for Oklahoma, 10th Circuit cases can, however, portend the direction of Oklahoma courts. We would anticipate Oklahoma’s criminal appeals courts sharing the mood of 10th Circuit judges, at least in this matter, unless the U.S. Supreme Court goes a different direction.

We would not anticipate the Supreme Court reversing a long-standing policy that government officials cannot make promises beyond the scope of their authority. We can nonetheless think of reasons the court should require prosecutors to more closely adhere to promises law enforcement agencies make to confidential informants.

For one thing, U.S. Attorneys and DEA agents are employees of the same agency. Without reversing settled law about the scope of government employee’s authority, courts could exclude evidence gained as a result of bad-faith agreements.

Such judicial oversight would encourage the Dept. of Justice to offer only binding non-prosecution agreements when it recruits criminal defendants to engage in dangerous undercover work. But, once again, don’t count on it.

Free Call: Criminal Defense Attorney in Tulsa

Before you sign an agreement with police to do undercover work in return for friendly treatment by prosecutors, ask a Tulsa attorney if the deal is worth the paper it is written on. Police can offer deals they know are worthless and that they are powerless to enforce. Police can and do lie as part of their job.

Police also can and do work with prosecutors to offer binding agreements. To accept anything less is to place your fate in the uncertain hands of agencies whose personnel and policies can change at any time – agencies whose employees can offer deals they are powerless to uphold.

For a free consultation about non-prosecution agreements in Oklahoma, contact a criminal defense attorney in Tulsa at (918) 879-1681 or send your question for Wirth Law Office using the form at the top of this page.

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