United States v. Lilly , 810 F.3d 1205 ( 2016 )


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  •                                                                      FILED
    United States Court of Appeals
    Tenth Circuit
    January 19, 2016
    PUBLISH                   Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                    No. 14-8041
    JANET LEA LILLY,
    Defendant-Appellant.
    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
    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
    2
    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
    3
    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.
    4
    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
    5
    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
    6
    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
    7
    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
    8
    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 9
    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
    10
    “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
    11
    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 non-
    12
    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
    13
    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
    14
    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
    15
    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]”).
    16
    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-of-
    plea-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
    17
    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 non-
    prosecution 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
    18
    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.
    19
    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
    20
    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 fundamental-
    fairness 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 fundamental-
    4
    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.
    21
    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
    22
    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 mine-
    run, 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
    23
    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.
    
    24 225 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
    25
    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 so-
    called 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.
    26
    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
    27
    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
    28
    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.”).
    29