United States v. John Johnson ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3272
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN JOHNSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 17-cr-20024 — James E. Shadid, Judge.
____________________
ARGUED DECEMBER 1, 2021 — DECIDED AUGUST 8, 2022
____________________
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 dis-
missed under the cooperation agreement. But there was no
federal non-prosecution agreement, and an agency theory did
2 No. 20-3272
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 re-
sulted 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 En-
forcement 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 transac-
tions and showed him incriminating evidence. They pro-
posed 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 govern-
ment in accord with a condition of Johnson’s federal super-
vised 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.
No. 20-3272 3
After Johnson agreed to cooperate, Decatur officers con-
tacted his federal probation officer, Gwen Powell, to request
federal permission for Johnson to cooperate. According to a
violation memorandum Powell later prepared for a revoca-
tion proceeding, the officers “requested permission for [John-
son] 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 re-
quested 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 for-
warded 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 re-
ceived a copy of this correspondence. Powell’s email in-
formed 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 con-
vict him for a recent Driving with a Revoked Li-
cense. I have discussed this matter with AUSA
Bohm and AUSA Miller. Neither of us have any
objections to Johnson cooperating with Decatur
4 No. 20-3272
PD. As a condition of offender Johnson’s super-
vised release, he must not enter into any agree-
ment to act as an informer or a special agent of
a law enforcement agency without the permis-
sion 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 Depart-
ment. 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 In-
formant 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 Deca-
tur 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.”
No. 20-3272 5
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 pro-
ceeding that he went over the form “line-by-line” with John-
son 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 agree-
ment. He also admitted to not being honest with law enforce-
ment about a previously undisclosed cocaine supplier in
Chicago, from whom Johnson had purchased several kilo-
grams of cocaine in 2016. The Decatur Police Department later
acquired information that suggested Johnson was continuing
to engage in cocaine trafficking while cooperating with offic-
ers.
In February 2017, the district court issued a warrant for
Johnson’s arrest for violating his conditions of supervised re-
lease. A federal grand jury indicted Johnson on two counts of
distributing a controlled substance related to the drug deliv-
eries in 2014.
Nearly two years later, Johnson moved to dismiss the in-
dictment. He argued he had received federal immunity from
1 Johnson was not represented by counsel at this meeting about the written
Confidential Informant Agreement or previously when Decatur police
first requested his cooperation in late 2015. Such representation might
have helped resolve any genuine uncertainties about the scope of an
agreement and its ramifications.
6 No. 20-3272
prosecution for the 2014 drug offenses through his coopera-
tion 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 in-
cluded Powell’s notes taken while supervising Johnson and
related emails. The Government did not object. After review-
ing 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 mo-
tion to dismiss the indictment, this time as a discovery sanc-
tion. 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 rec-
ords, contending the Government should have produced its
copies of the emails in response to previous discovery re-
quests. 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
2 The United States Attorney’s Office could not locate its copy of the emails
because of a three-year retention procedure.
No. 20-3272 7
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 im-
munity “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 read-
ing 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 au-
thorities. But … there’s nothing in this record … to suggest
that there was a federal agreement not to prosecute [Johnson]
in Federal Court.” On this basis, the court denied Johnson’s
first motion to dismiss. 3 Johnson’s second motion to dismiss,
which alleged the discovery violation, remained pending.
3The United States attempted to call Jones to testify and present evidence
concerning Johnson’s violations of the cooperation agreement, but
8 No. 20-3272
After the evidentiary hearing, Johnson sought further
discovery relating to his cooperation agreement. The Govern-
ment objected but provided Johnson with additional docu-
ments on March 13, including twelve pages of internal United
States Attorney’s Office emails reviewed by the district court
in camera. The emails referred to Johnson’s cooperation with
the Decatur Police Department, along with Miller and Judge
Baker’s approval of the cooperation. But in response to inquir-
ies about a federal non-prosecution agreement, Powell told
the United States Attorney’s Office in an email that, “[a]s for
[sic] as I know, there was no agreement with the federal gov-
ernment that he not be prosecuted for the [2014] drug distri-
butions.”
Johnson insisted these additional emails contained rele-
vant information pertaining to a federal non-prosecution
agreement. So with court permission, he supplemented his
second motion to dismiss for discovery sanctions, and he
moved for reconsideration of the ruling on his first motion to
dismiss based on a federal non-prosecution agreement.
At a hearing on April 16, 2020, the district court considered
both motions. Johnson’s counsel confirmed the court’s belief
that the record contained no “statements by an assistant U.S.
attorney … that they’re offering immunity to him on the
Johnson objected. The district court sustained the objection on the grounds
that the issue of Johnson’s compliance with the Confidential Informant
Agreement was moot in view of the court’s finding that no federal prose-
cutorial immunity existed. Jones later testified in a separate proceeding for
Johnson’s revocation of supervised release, where he recounted going
over the written agreement “line-by-line” with Johnson and denied that
he had told Johnson he would receive federal immunity in contravention
of the written agreement.
No. 20-3272 9
federal charges.” The court concluded that “the record in this
case as it presently exists clearly indicates that … the federal
government did not, either impliedly or expressly, make an
agreement with the defendant that he would not be prose-
cuted. It’s just simply not there.” While the court again
acknowledged Powell’s memo that stated Johnson would not
be prosecuted, the court recognized that Powell later “clari-
fied and refuted” the suggestion that this included federal im-
munity. The court further observed that “the probation officer
can’t bind the U.S. Attorney anyway.” In addition to finding
that Johnson was not offered federal immunity, the court also
ruled that Johnson could not have “reasonably … believed
that the federal government was saying that they were not go-
ing to prosecute him.” So, the district court upheld its denial
of the first motion to dismiss.
The court also denied Johnson’s second motion to dismiss
as a discovery sanction. The cited email communications
“work[] against the defendant, not in his favor,” the court
found, and “in any event, the defense has it now.” As such,
the court determined the United States had not committed a
Brady violation.
After his motions were denied, Johnson entered condi-
tional guilty pleas to each of the drug offenses in the two-
count indictment. Johnson reserved his right to appeal the
district court’s denial of his two motions to dismiss the indict-
ment. The district court sentenced Johnson to 180 months’ im-
prisonment.
10 No. 20-3272
II
A
Johnson argues he was promised immunity from federal
prosecution as part of the unwritten cooperation agreement
with the Decatur Police Department, so the district court
erred in denying his first motion to dismiss the indictment.
“We review de novo the denial of a motion to dismiss an in-
dictment and the court’s factual findings for clear error.”
United States v. Friedman, 971 F.3d 700, 710 (7th Cir. 2020) (ci-
tations omitted). Under clear error review, “we will reverse
‘only if we are left with the definite and firm conviction that a
mistake was made.’” United States v. Elizondo, 21 F.4th 453, 473
(7th Cir. 2021) (quoting United States v. Blake, 965 F.3d 554, 558
(7th Cir. 2020)).
As the parties acknowledge, and as this court has long rec-
ognized, only federal prosecutors can grant a defendant in-
formal immunity from federal prosecution. 4 See United States
v. Fuzer, 18 F.3d 517, 520–21 (7th Cir. 1994) (concluding that
an alleged promise of federal immunity in a plea agreement
was ineffectual because “the United States Attorney’s office
was not a party to [the] plea agreement” and authorities from
a federal agency were not acting as agents for the United
4 In contrast, statutory immunity, also known as formal immunity, at 18
U.S.C. §§ 6001–6005, provides a mechanism by which the government
may apply for an order granting a witness limited immunity in judicial,
administrative, and congressional proceedings. U.S. DEP’T OF JUSTICE,
CRIMINAL RESOURCE MANUAL § 716 (Jan. 17, 2020), https://www.jus-
tice.gov/archives/jm/criminal-resource-manual-716-use-immunity-trans-
actional-immunity-informal-immunity-derivative.
No. 20-3272 11
States Attorney); In re Daley, 549 F.2d 469, 480 (7th Cir. 1977)
(“Through the exercise of his inherent discretion, the federal
prosecutor retains control over the nature and scope of im-
munity granted.”); see also United States v. Lilly, 810 F.3d 1205,
1212–13, 1215 (10th Cir. 2016) (citing Fuzer, 18 F.3d at 520)
(investigating authorities promising federal immunity must
“receive[] permission or authorization from a governmental
actor that actually possesses actual authority—notably, a fed-
eral prosecutor”); United States v. Flemmi, 225 F.3d 78, 87 (1st
Cir. 2000) (noting that “informal grants of use immunity” are
“the exclusive prerogative of the United States Attorneys”).
This is so because the United States Attorney’s Office is vested
with prosecutorial discretion, and “the power to prosecute
plainly includes the power not to prosecute.” Flemmi, 225 F.3d
at 87.
The United States Attorney’s Office did not directly or in-
directly authorize a federal non-prosecution agreement here.
Johnson admits he did not speak to anyone from the United
States Attorney’s Office about his cooperation. In fact, the pol-
icy of the United States Attorney’s Office for the Central Dis-
trict of Illinois prohibited the authorization of transactional
immunity deals. 5 Johnson nonetheless insists that the string
of emails between federal prosecutors and Powell show the
Government acquiesced to a federal non-prosecution agree-
ment.
5 Transactional immunity precludes prosecuting an offense, while use im-
munity precludes the use of a defendant’s proffered statement against
him. United States v. Eliason, 3 F.3d 1149, 1152 (7th Cir. 1993); U.S. DEP’T OF
JUSTICE, CRIMINAL RESOURCE MANUAL § 717 (Jan. 17, 2020),
https://www.justice.gov/archives/jm/criminal-resource-manual-717-
transactional-immunity-distinguished.
12 No. 20-3272
The emails do not show a federal agreement, and ex-
pressly state that Johnson’s cooperation was with local au-
thorities. In response to Powell’s email stating that “Johnson
wants to cooperate and work with Decatur PD,” Bohm replied
he had “no objection.” Miller was specific: “I have no objec-
tion to John Johnson’s request to cooperate with the Decatur
Police Department.” Bohm and Miller were copied on an
email from Powell to Judge Baker, which stated that in ex-
change for Johnson’s cooperation, “Macon County will not
likely charge and/or convict him for the drug related offenses
in 2014.” And in advance of trial, when the United States At-
torney’s Office asked Powell if she knew of any non-prosecu-
tion agreement between a federal prosecutor and Johnson,
Powell stated “there was no agreement with the federal gov-
ernment that he not be prosecuted for the drug distributions.”
As these emails show, Powell did not seek approval for a
federal non-prosecution agreement, and the United States At-
torney’s Office did not expressly or implicitly suggest that
Johnson would receive federal immunity. Johnson conflates
federal approval of a Decatur Police Department cooperation
agreement involving state and county immunity with consent
to a federal non-prosecution agreement. But the two are dis-
tinct, and there is no evidence that the United States Attor-
ney’s Office approved the latter.
Without the Government actually granting federal im-
munity, Johnson is left arguing that the federal government is
bound to the cooperation agreement under an agency theory.
Recall that Powell and Jones had no actual authority to bind
the United States Attorney’s Office. As a probation officer,
Powell was an employee of the federal judiciary, which lacks
authority to bind federal prosecutors to a non-prosecution
No. 20-3272 13
agreement. See United States v. Hollins, 847 F.3d 535, 541 (7th
Cir. 2017). State and county officials like Jones also lack such
authority, as “the federal government [is] not bound by an
agreement made by the defendant and state agents.” Staten v.
Neal, 880 F.2d 962, 966 (7th Cir. 1989).
Johnson invokes the “doctrine of inherent agency,” citing
Neal. According to Johnson, he reasonably believed he would
receive federal immunity because Jones and Powell “ex-
pressly told him” so.
Johnson’s theory fails for three reasons. First, there is in-
sufficient evidence to overturn the district court’s findings
that Johnson was not offered, and could not have reasonably
believed he was offered, federal immunity. Powell and Jones
each testified they did not promise Johnson immunity from
federal prosecution. No federal prosecutor spoke with John-
son about a federal non-prosecution agreement. The emails
between Powell and the United States Attorney’s Office are
devoid of any request for, or approval of, any such agreement.
And Johnson signed the three-page Confidential Informant
Agreement, which expressly stated he would not receive im-
munity from prosecution.
In addition to his affidavit, Johnson relies on Powell’s
memo, in which she recounts that Decatur officers told John-
son “no charges would be filed against the offender” in
exchange for his cooperation. But Powell later testified she
understood that Decatur officers told Johnson he would re-
ceive immunity “by the state or the county,” not the United
States. Without more, we are not left with a “definite and firm
conviction” that the district court erred in determining John-
son was not offered, and could not have reasonably believed
14 No. 20-3272
he was offered, federal immunity. Elizondo, 21 F.4th at 473
(quoting Blake, 965 F.3d at 558).
Second, inherent agency authority does not apply here. As
we stated in Neal, “[t]he doctrine of inherent agency authority
presupposes that one party is an agent of another party, the
principal, and that it is this agency relationship which causes
the third party to assume that the words and actions of the
agent are also those of the principal.” 880 F.2d at 965. Neither
Powell nor Jones was an agent of the United States Attorney’s
Office because federal prosecutors did not approve a federal
immunity deal, vest Powell and Jones with authority to make
one, or even request that Powell or Jones relay their non-ob-
jection of the Decatur cooperation agreement to Johnson. 6 The
principle of apparent authority 7 does not help Johnson either
6 At most, Powell might have acted as an agent of the district court.
Powell was a federal judicial employee, the district court held exclusive
authority to approve Johnson’s cooperation while on federal supervised
release, and Judge Baker instructed Powell to “[g]o ahead and allow”
Johnson to cooperate with the Decatur Police Department—an instruction
that could be viewed as Judge Baker authorizing Powell to communicate
his approval of the agreement to Johnson.
But approval by the United States Attorney’s Office of Johnson’s co-
operation was not necessary, and neither Bohm nor Miller asked Powell
to relay their non-objection of the agreement to Johnson. Because the
United States Attorney’s Office did not manifest assent to Powell for her
to act on its behalf, no agency relationship existed between them. See RE-
STATEMENT (THIRD) OF AGENCY § 1.01 (AM. L. INST. 2006).
7 Although Johnson does not explicitly argue for apparent authority, his
arguments under inherent authority are similar because they are based on
what Jones and Powell told him. Both parties rely on Lilly, which dealt
with apparent authority. 810 F.3d at 1210. And the Restatement Third of
Agency abandoned use of “inherent agency power” because the concept
was encompassed by other doctrines, including apparent authority, which
No. 20-3272 15
because he had no contact with any federal prosecutor and
did not interpret manifestations by the United States Attor-
ney’s Office as evidence that Powell or Jones were authorized
to offer him federal immunity. See RESTATEMENT (THIRD) OF
AGENCY § 2.03 cmt. c (AM. L. INST. 2006) (“A belief that results
solely from the statements or other conduct of the agent, un-
supported by any manifestations traceable to the principal,
does not create apparent authority.”).
Third, even if Powell or Jones possessed inherent agency
authority or apparent authority, neither doctrine is sufficient
“to bind the federal government to a contract; unless the agent
had actual authority, any agreement is ineffectual.” Urso v.
United States, 72 F.3d 59, 60 (7th Cir. 1995); see also United States
v. Long, 511 F.2d 878, 881 (7th Cir. 1975) (“‘The government is
not bound by acts of persons who never have been … its
agents.’ This remains horn book law.” (quoting Newman v.
United States, 28 F.2d 681, 682 (9th Cir. 1928))); RESTATEMENT
(THIRD) OF AGENCY § 2.03 cmt. g (AM. L. INST. 2006) (“The doc-
trine of apparent authority generally does not apply to sover-
eigns …. [T]hird parties who deal with national governments,
quasi-governmental entities, states, counties, and municipali-
ties take the risk of error regarding the agent’s authority to a
greater degree than do third parties dealing through agents
with nongovernmental principals.”). “If the rule were other-
wise, 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 prom-
ising immunity in return for the performance of some act
which might benefit his department.” Lilly, 810 F.3d at 1211
suggests that discussion of apparent authority is appropriate. RESTATE-
MENT (THIRD) OF AGENCY § 2.01 cmt. b (AM. L. INST. 2006).
16 No. 20-3272
(quoting Dresser Indus., Inc. v. United States, 596 F.2d 1231,
1236–37 (5th Cir. 1979)). A contrary rule would also risk vio-
lating federalism principles and the separation of powers, as
states and non-executive federal officials could bind the Exec-
utive Branch to agreements it alone has the power to make.
And because there is no actual authority here, any inherent or
apparent authority assertion is ineffectual.
On the topic of agency and the authority to grant federal
immunity, both parties invite us to examine United States v.
Lilly, 810 F.3d 1205 (10th Cir. 2016). There, the defendant ar-
gued she was immune from federal prosecution because Wy-
oming and DEA authorities purportedly promised her im-
munity in exchange for her cooperation. 810 F.3d at 1209–10.
Assuming the defendant was promised such immunity, the
court nevertheless held that “neither agency had the authority
to promise Ms. Lilly federal immunity, and thus any pur-
ported agreement is unenforceable against the United States.”
Id. at 1210. “This rule,” the court explained, “is grounded in
principles of sovereignty and prosecutorial discretion.” Id. at
1212.
Johnson responds that Lilly discussed a “fundamental-
fairness exception” to this rule, which has been recognized by
some federal circuit courts. Id. at 1215–16 That exception
binds the United States Attorney to a non-prosecution agree-
ment, even when the United States Attorney was not a party
to the agreement, “when the government’s noncompliance
with an unauthorized promise would render a prosecution
fundamentally unfair.” Id. at 1215 (quoting Flemmi, 225 F.3d
at 88 n.4). But this exception is “‘narrow’” and “‘seldom-
seen,’” and “exclude[s] from its ambit the mine-run (i.e., typ-
ical) case.” Id. at 1216 (quoting Flemmi, 225 F.3d at 88 n.4).
No. 20-3272 17
These mine-run cases include instances where a defendant
“complains that investigators made unfulfilled promises that
the defendant would not be prosecuted or would receive
other favorable treatment relative to potential criminal
charges if the defendant truthfully disclosed information re-
garding an investigation … or actively assisted the investiga-
tors in efforts aimed at catching other possible criminals”—
the exact facts of this case. Id. at 1217. “Accordingly, because
[Johnson’s] case is mine-run, it is not a suitable candidate for
application of the fundamental-fairness exception.” Id.
Similarly, Johnson points to this court’s decision in United
States v. Cahill, which stated that “[t]he prosecution of a de-
fendant based on direct or indirect testimony taken after a
specific promise of immunity … warrants dismissal of an in-
dictment.” 920 F.2d 421, 426 (7th Cir. 1990) (involving use, not
transactional, immunity). But Cahill involved an alleged
promise of immunity by a federal prosecutor to the defend-
ant, so it is distinguishable. Cahill does not suggest that the
United States Attorney’s Office is bound by a state or judicial
official’s promise of federal immunity.
In sum, no evidence suggests the United States Attorney’s
Office ever considered or approved a federal non-prosecution
agreement. There is also insufficient evidence to reverse the
district court’s findings that Johnson was not promised fed-
eral prosecutorial immunity by either Powell or Jones. Even if
they had made such promises, Johnson cannot rely on theo-
ries of inherent or apparent authority because Jones and Pow-
ell were not agents of the United States Attorney’s Office, and
federal prosecutors did not make manifestations to Johnson
that Jones or Powell were authorized to act on their behalf.
And even if Jones or Powell acted with inherent or apparent
18 No. 20-3272
authority, principles of dual sovereignty and the separation
of powers prevent such unauthorized promises from binding
the Executive Branch. We thus conclude the district court did
not err in denying Johnson’s first motion to dismiss based on
federal immunity.
B
Johnson also contends the district court wrongfully de-
nied his second motion to dismiss the federal indictment as a
discovery sanction. “When reviewing a court’s decision
granting or denying a motion to dismiss an indictment be-
cause of an alleged Brady violation, ‘we look only to see if the
district court abused its discretion.’” United States v. Barr, 960
F.3d 906, 916 (7th Cir. 2020) (quoting United States v. Cherry,
920 F.3d 1126, 1140 (7th Cir. 2019)). Under this standard, “[w]e
will reverse the district court only when no reasonable person
could take the view adopted by the trial court.” United States
v. Bebris, 4 F.4th 551, 559 (7th Cir. 2021) (quoting United States
v. Hamdan, 910 F.3d 351, 356 (7th Cir. 2018)).
Under Brady v. Maryland, 373 U.S. 83 (1963), law enforce-
ment officers “must turn over potentially exculpatory
evidence when they turn over investigative files to the prose-
cution.” Jones v. York, 34 F.4th 550, 558 (7th Cir. 2022) (quoting
Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007)). “To succeed
on a Brady claim, a defendant bears the burden of proving that
the evidence is (1) favorable, (2) suppressed, and (3) material
to the defense.” United States v. Edwards, 34 F.4th 570, 587 (7th
Cir. 2022) (quoting United States v. Walter, 870 F.3d 622, 629
(7th Cir. 2017)).
Johnson’s evidentiary challenge fails under each Brady el-
ement. To begin, none of the purportedly suppressed
No. 20-3272 19
evidence was favorable to Johnson. The emails between Pow-
ell and Decatur officers, Bohm, Miller, and Judge Baker do not
mention a federal non-prosecution agreement. In fact, in some
of her emails, Powell denies any knowledge of a federal im-
munity deal. These facts support the district court’s finding
that the belatedly produced emails “work[] against the de-
fendant, not in his favor.”
Further, no evidence was “suppressed” within the mean-
ing of Brady. As Johnson’s counsel recognized at oral argu-
ment, 8 our case law provides that “[d]elayed disclosure alone
does not ‘in and of itself constitute a Brady violation.’” Barr,
960 F.3d at 916 (quoting United States v. O’Hara, 301 F.3d 563,
569 (7th Cir. 2002)). “Instead, the disclosure must come so late
as to deny the defendant ‘effective use’ of the evidence during
the relevant proceeding.” Id. (quoting United States v. Walton,
217 F.3d 443, 451 (7th Cir. 2000)). Johnson had access to the
first batch of contested emails contained in Powell’s records
approximately one month before the January 2020 eviden-
tiary hearing.9 Moreover, Johnson obtained the additional
twelve pages of emails on March 13. The district court then
allowed Johnson to supplement his motion for discovery
sanctions and to file a motion to reconsider the motion to dis-
miss based on federal immunity. By the time of the April 16
motion hearing, all the contested emails were available to
Johnson and had been considered by the district court. John-
son also argues the Government withheld text messages
8 Oral Arg. at 15:15.
9 While Johnson argues the United States Attorney’s Office failed to pro-
duce its copy of these emails due to data retention procedures, the proba-
tion office was able to produce its copy of those same emails for Johnson’s
use.
20 No. 20-3272
between Johnson and Jones. But those messages were also in
Johnson’s possession and the district court considered them
as part of Johnson’s second motion to dismiss the indictment
as a discovery sanction. The district court acted well within its
discretion in finding that Johnson’s access to the emails and
text messages foreclosed a Brady challenge. 10
Last, none of the belatedly produced emails were material
to Johnson’s defense. “[E]vidence is ‘material’ within the
meaning of Brady when there is a reasonable probability that,
had the evidence been disclosed, the result of the proceeding
would have been different.” Turner v. United States, 137 S. Ct.
1885, 1893 (2017) (alteration in original) (quoting Cone v. Bell,
556 U.S. 449, 469–470 (2009)). Because the district court had an
opportunity to examine the evidence, we need not speculate
as to whether the emails would have produced a different re-
sult. The court twice determined there was insufficient evi-
dence to support Johnson’s federal immunity defense, and we
cannot say that “no reasonable person could take the view
adopted by the trial court.” Bebris, 4 F.4th at 559 (quoting
Hamdan, 910 F.3d at 356).
* * *
For these reasons, we AFFIRM the district court.
10 In his reply brief, Johnson argues for the first time on appeal that the
Government violated Brady by not requesting Jones’s written notes docu-
menting his interactions with Johnson. But Johnson did not raise this issue
in his opening brief, and “[a] party that omits from its opening appellate
brief any argument in support of its position waives or abandons that
party’s claim on appeal.” White v. United States, 8 F.4th 547, 552 (7th Cir.
2021).