                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           NOV 06 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 13-10320

              Plaintiff - Appellant,             D.C. No. 2:11 cr-0429- JAM-5

 v.
                                                 MEMORANDUM*
DOUGLAS ARTHUR JOHNSON,

              Defendant - Appellee.


                    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



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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


                                           -2-
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


                                           -3-
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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