July 18, 2019

Tenth Circuit: Confidential Informant Had No Basis to Challenge District Court’s Rulings When He Entered Unconditional Plea Agreement

The Tenth Circuit issued its opinion in United States v. John Doe on Friday, November 2, 2012.

John Doe agreed to be a confidential informant (CI) for the Longmont, Colorado, Police Department (LPD) to provide information on drug trafficking. As part of a written Agreement to be a CI, Doe had agree not to engage in criminal activity. On the strength of Doe’s information, an arrest was made after a cocaine pick-up and Doe was paid. According to Doe, the arrest raised suspicion. Doe told Detective Stephen Schulz he was going to have to start running cocaine to alleviate suspicion. Schulz told him he could not do that.

Although it is undisputed that there was no formal agreement of immunity, conversations took place where Doe understood he would have immunity if he was arrested. Doe continued to provide information to Schulz while also engaging in criminal activity. Doe was indicted in April 2009.

Doe plead guilty to two drug trafficking charges. Prior to the plea deal, he filed a motion to dismiss the indictment for breach of an immunity agreement and outrageous governmental conduct. First, he contended the government breached an immunity agreement that arose from his relationship with Schulz. He also argued the government’s conduct in encouraging his ongoing relationship with the organization and the crimes he committed to maintain his cover amounted to outrageous conduct, justifying dismissal of the charges. The district court denied the motion. Doe appealed.

On appeal, the Tenth Circuit considered two issues: (1) whether Doe waived his right to challenge the district court’s rulings when he entered an unconditional plea agreement, and (2) whether the government’s conduct nonetheless provided grounds to vacate the plea agreement and dismiss the indictment.

The Tenth Circuit held defendant had no basis to challenge the waiver of appeal in his plea agreement.

In the alternative, Doe argued that even if he waived his right to appeal, the government’s conduct here was so egregious, the Court should ignore the waiver and dismiss the indictment. The outrageous conduct defense is an extraordinary defense that will only be applied in the most egregious circumstances. It is not outrageous for the government to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity. In this case, Schulz persuaded Doe to serve as a CI because he was already involved with the organization—clearly not an inducement to create crime. It was at most an inducement to extend criminal activity, which is not prohibited.

Accordingly, the court AFFIRMED Doe’s conviction, DISMISSED his appeal, and GRANTED his motion to seal the briefs.

Print Friendly, PDF & Email

Speak Your Mind

*