United States of America v. Douglas Arthur Johnson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
DOUGLAS ARTHUR JOHNSON,
Defendant - Appellee.
No. 13-10320
D.C. No. 2:11 cr-0429- JAM-5
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted August 11, 2015
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
The government appeals from the district court’s order dismissing the
September 29, 2011, indictment against defendant Douglas Johnson. The district
court found that the government entered into a non-prosecution agreement with
Johnson, predating the September indictment, and that it would therefore be
FILED
NOV 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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fundamentally unfair to allow the case to proceed. We have jurisdiction pursuant
to 18 U.S.C. § 1291, and we affirm the dismissal.
“Because this is a claimed immunity agreement, ordinary contract principles
apply.” United States v. Wilson, 392 F.3d 1055, 1059 (9th Cir. 2004). As a result,
we review the trial court’s factual determinations and “determinations relating to
formation of an enforceable agreement” for clear error. Id.; see also Collins v.
Thompson, 679 F.2d 168, 170 (9th Cir. 1982). “The clear error standard is highly
deferential and is only met when the reviewing court is left with a definite and firm
conviction that a mistake has been committed.” United States v. Silva, 714 F.3d
1168, 1172 (9th Cir. 2013). Otherwise, the district court’s findings of fact and
credibility determinations should be left undisturbed. United States v. Krasn, 614
F.2d 1229, 1233 (9th Cir. 1980).
“As a general rule, fundamental fairness requires that promises made during
plea-bargaining and analogous contexts be respected” so long as the agent was
authorized to make the promise, and the defendant relied on the promise to his
detriment. Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985); United States
v. Hudson, 609 F.2d 1326, 1329 (9th Cir. 1979).
Because a non-prosecution agreement is governed by contract-law standards,
“[w]hat the parties agreed to . . . is a question of fact.” United States v. Arnett, 628
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F.2d 1162, 1164 (9th Cir. 1979). “Resolution of the good-faith disputes over the
terms of an agreement should be made by the district court, to whom the plea was
originally submitted, on the basis of adequate evidence.” Id. at 1164. Here, the
district court determined that the parties entered into a non-prosecution agreement
based on a number of factors, including: (1) AUSA Flynn’s representation to
Defendant Johnson that he should “just tell the truth and everything will be ok”;
(2) “prior interactions,” including repeated assurances that Johnson was not a
target; (3) both parties’ understanding at the time of Johnson’s grand jury
testimony that he would not be prosecuted; and (4) an explicit non-prosecution
agreement with a second defendant who Flynn saw “in the same light” as Johnson,
who was afforded the benefit of his agreement due to the diligence of his lawyer.
Based on the totality of the circumstances, this evidence was sufficient to support
the district court’s finding that a non-prosecution agreement was formed between
AUSA Flynn and Johnson prior to his September indictment. That finding was not
clearly erroneous.
Just before entering the Grand Jury room Johnson was told by AUSA Flynn
that he “was not a target of the investigation, and to just tell the truth and
everything would be okay.” In reliance on this agreement, Johnson testified
truthfully before the grand jury. In doing so, he waived his Fifth and Sixth
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Amendment rights, exposing himself to criminal liability through his testimony.
“When the government promises not to prosecute a witness in exchange for his
cooperation, it cannot then indict the witness unless it proves that he failed to
cooperate.” United States v. Mark, No. 13-10579, 2015 WL 4591866, at *1 (9th
Cir. July 31, 2015). Because Flynn was authorized to make the agreement with
Johnson and Johnson detrimentally relied on that agreement in his testimony,
fundamental fairness required the government to fulfill its promise to refrain from
prosecution. Santobello v. New York, 404 U.S. 257, 262 (1971).
The judgment of the district court is
AFFIRMED.
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