Actual Authority, Not Apparent Team Membership: Tenth Circuit Denies COA Where State Proffer Terms Did Not Bind Federal Prosecutors and Rule 410 Was Waived

Introduction

In United States v. Brown, No. 24-8073 (10th Cir. Oct. 20, 2025), the Tenth Circuit denied a certificate of appealability (COA) to a federal prisoner seeking to appeal the denial of a Rule 60(b) motion in his 28 U.S.C. § 2255 proceedings. Although the panel’s order is designated nonprecedential, it provides a concise, practitioner-focused synthesis of several recurring doctrines: the classification of “true” Rule 60(b) motions in habeas cases, the COA standard under Slack v. McDaniel, the “actual authority” requirement governing when a promise can bind the United States, the law-of-the-case constraint stemming from a prior direct appeal, and the waiver of Federal Rule of Evidence 410 protections when the defense itself opens the door.

The core dispute arose from a 1999 “proffer” meeting involving a state prosecutor and a state task force agent (later designated as the federal case agent). Brown argued, in his Rule 60(b) motion, that the federal government breached a state plea/proffer agreement by using the agent’s testimony about that meeting at his federal trial. The district court denied relief, and the Tenth Circuit concluded that Brown failed to show that reasonable jurists could debate the district court’s assessment.

This commentary explains the case background, the court’s holdings, the precedents that shaped the outcome, and the broader implications for cross-sovereign proffers, post-conviction litigation under § 2255, and evidentiary waiver under Rule 410.

Summary of the Opinion

The panel (Judges Hartz, Moritz, and Rossman) denied Brown’s application for a COA and dismissed the appeal. The court limited review to the order denying Brown’s Rule 60(b) motion, because his COA application challenged only that order. Applying Slack v. McDaniel, the panel held that Brown did not make a “substantial showing of the denial of a constitutional right” and did not demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

Two points drove the outcome:

Claim characterization: The district court did not misconstrue Brown’s Rule 60(b) argument; he advanced a stand-alone claim that the United States breached a state plea/proffer agreement, not an overlooked ineffective-assistance-of-counsel claim.
Merits non-engagement: Brown’s COA application did not engage with any of the district court’s five, independently sufficient merits rationales. Under Tenth Circuit law, an appellant must explain why the lower court was wrong; failure to do so defeats a COA.

The panel therefore did not reach Brown’s argument challenging the district court’s law-of-the-case analysis and denied his request for appointed counsel.

Background

In 1999, Brown was arrested in a Wyoming parking lot; a search uncovered a machine gun, and a residence search revealed a methamphetamine lab. While state charges were pending, Brown and his attorney requested a “proffer meeting” with a state prosecutor; a state task force agent, Deputy Sheriff Dennis Claman (then assigned to the Wyoming Division of Criminal Investigation), also attended. The state prosecutor told Brown that his statements would not be used against him in state court and expressly cautioned that the state could not bind federal authorities. Brown acknowledged he understood these terms. During the meeting, Brown mentioned an Illinois gun “fabricator.” His lawyer then told him to stop discussing the firearm. Claman later informed federal agents.

Brown pleaded nolo contendere to two state drug charges; the state dismissed two others. A week later, a federal grand jury indicted him for being a felon in possession, unlawful possession of a machine gun, and carrying a machine gun during and in relation to a drug trafficking crime. The federal prosecutor designated Claman as the case agent. At trial, the government elicited Claman’s testimony about the proffer meeting; the defense did not object. Brown was convicted on all counts. On direct appeal in United States v. Brown (Brown I), 400 F.3d 1242 (10th Cir. 2005), the Tenth Circuit affirmed the convictions but remanded for resentencing; the resentencing was affirmed in Brown II, 212 F. App’x 747 (10th Cir. 2007).

In 2008, Brown filed a pro se § 2255 motion. After a partial remand in Brown III, 640 F. App’x 752 (10th Cir. 2016), the district court denied three ineffective-assistance claims following an evidentiary hearing; the Tenth Circuit denied a COA in Brown IV, No. 21-8083, 2022 WL 4103071 (10th Cir. Sept. 8, 2022). Brown then filed a counseled Rule 60(b) motion asserting that the district court had overlooked a distinct claim: that the federal government breached the (state) proffer/plea agreement by introducing Claman’s testimony at his federal trial. The district court treated the filing as a “true” Rule 60(b)(4) motion and denied it, giving several independent merits rationales.

Analysis

Precedents Cited and Their Influence

Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006): The district court correctly treated Brown’s motion as a “true” Rule 60(b) motion because it alleged a defect in the integrity of the habeas proceedings (an overlooked claim), rather than asserting a new ground for relief or attacking the prior judgment’s merits with new evidence. This classification brought the motion within § 2253(c)’s COA requirement.
Slack v. McDaniel, 529 U.S. 473 (2000): The governing COA standard required Brown to show that reasonable jurists could debate the correctness of the district court’s procedural and/or merits determinations. The Tenth Circuit invoked Slack to emphasize that merely repeating one’s substantive view (that the government breached the agreement) is not enough; the appellant must identify error in the district court’s reasoning.
United States v. Lilly, 810 F.3d 1205 (10th Cir. 2016): Controlling authority on “actual authority” in the plea/immunity context. The district court relied on Lilly for two propositions:
- A defendant seeking to enforce a promise in a plea or cooperation agreement must show the promisor had actual authority to make it.
- Investigators ordinarily lack actual authority to bind the United States; authorization must come from a governmental actor with actual authority, typically a federal prosecutor.
This undercut Brown’s theory that Claman’s later role as the federal case agent retroactively bound federal prosecutors to the state proffer constraints.
United States v. Brown (Brown I), 400 F.3d 1242 (10th Cir. 2005): On direct appeal, the Tenth Circuit had already addressed the proffer circumstances, noting that the state prosecutor told Brown the state could not bind federal authorities and that Brown acknowledged those terms. The district court treated the renewed “breach” argument as barred by law-of-the-case; the panel ultimately did not need to reach that procedural bar because Brown failed to show the merits ruling was debatable.
Nixon v. City & County of Denver, 784 F.3d 1364 (10th Cir. 2015): The panel cited Nixon for the principle that an appellant’s “first task” is to explain why the district court’s decision was wrong. Brown did not address the district court’s five alternative rationales.
Bowles v. Russell, 551 U.S. 205 (2007); United States v. Pinto, 1 F.3d 1069 (10th Cir. 1993); and Fed. R. App. P. 4(a)(1)(B)(i): Tangentially noted to clarify that the court lacked jurisdiction over any challenge to the 2021 judgment denying the § 2255 motion due to an untimely notice of appeal. These authorities narrowed the scope of the appeal strictly to the Rule 60(b) denial.

Legal Reasoning

Scope and Standard: Because a COA is required to appeal the denial of a “true” Rule 60(b) motion in § 2255 proceedings, Brown had to satisfy Slack—showing that reasonable jurists could debate whether the district court’s disposition implicated a constitutional denial and whether any procedural rulings were debatable.
Claim Characterization: The district court read the Rule 60(b) motion as asserting that an overlooked, stand-alone “breach of plea/proffer agreement” claim existed in ground two of the § 2255 motion—not as an overlooked ineffective-assistance claim about failure to object to the breach. The Tenth Circuit reviewed Brown’s filings and agreed with the district court’s characterization: Brown framed the issue as federal breach, not as ineffective assistance.
Law-of-the-Case (not reached by the panel): The district court found that Brown I had already rejected the breach theory on direct appeal, rendering the claim barred by law-of-the-case. Although the panel did not need to decide this point, it contextualizes the district court’s analysis: relitigation of issues resolved on direct review is generally impermissible in collateral proceedings absent extraordinary circumstances.
Merits—Five Independent Grounds (none of which Brown engaged):
- Express Terms Did Not Bind the United States. The state prosecutor told Brown the state could not bind federal authorities; Brown acknowledged this. Contractually, the federal sovereign never promised non-use.
- Agency Status at the Proffer. After an evidentiary hearing in the § 2255 case, the district court found as a fact that Claman was acting as a Wyoming DCI agent at the proffer meeting, not as a federal agent collecting information on the machine gun for federal use.
- No Retroactive Binding by Later Federal Role. Claman’s later designation as federal case agent did not retroactively invest him with authority he lacked at the time of the state proffer meeting; under Lilly, the relevant question is actual authority when the promise was purportedly made.
- No Actual Authority from a Federal Prosecutor. Even if Claman at some point functioned as a federal investigator, he could not bind the United States absent authorization from someone with actual authority—typically a federal prosecutor. Brown offered no evidence of such authorization.
- Rule 410 Waiver by the Defense. The district court found that defense counsel first introduced the proffer statements during examination of Claman, thereby waiving Rule 410’s exclusion and “opening the door” to the prosecution’s elicitation of related testimony. This provided an independent evidentiary basis for admitting the statements.
Because Brown did not grapple with any of these holdings in his COA application, he failed to show that reasonable jurists could debate the district court’s disposition.

Impact and Practical Implications

Although nonprecedential, the order is a crisp reminder of several operational rules with broad practical effects:

Cross-Sovereign Proffers Require Explicit Federal Buy-In. Where state prosecutors make assurances and expressly disclaim the ability to bind federal authorities—and no federal prosecutor with actual authority authorizes or adopts the promise—the United States is not bound. Apparent authority, “prosecution team” membership, or later federal involvement will not suffice under Lilly.
“Prosecution Team” Status Does Not Equal Contract Authority. The fact that a state agent later becomes a federal case agent does not by itself transform a state proffer assurance into a federal promise. Contract principles applied in criminal procedure require actual authority at the time of the promise.
Rule 410 Can Be Waived—Even at Trial. Defense-initiated use of proffer statements can waive Rule 410 protections or trigger fairness-based admission of related statements. Strategic decisions to “get ahead” of damaging proffer content can open the door to broader admission.
COA Applications Must Engage the District Court’s Analysis. Under Slack and Nixon, appellants must demonstrate why the lower court’s reasoning is debatable. Failing to address each independent ground for decision forecloses a COA.
Rule 60(b) in Habeas Is Narrow. A “true” Rule 60(b) avenue exists for defects in the integrity of the habeas proceeding (e.g., an overlooked claim), but the movant still must show a debatable constitutional issue and must confront the district court’s procedural and merits rationales head-on.
Law-of-the-Case Carries Forward from Direct Appeal. Issues decided on direct review generally cannot be re-litigated in collateral proceedings. Counsel should frame collateral claims to avoid duplicating issues that the appellate court already decided.

Complex Concepts Simplified

Certificate of Appealability (COA): In § 2255 and related habeas contexts, a petitioner cannot appeal unless a court issues a COA. To obtain one, the petitioner must show that reasonable jurists could debate whether the district court’s ruling involved a denial of a constitutional right. If the district court’s decision rests on procedural grounds, the procedural ruling must also be debatable.
Rule 60(b) vs. Successive Habeas: A Rule 60(b) motion is permissible when it attacks a defect in the habeas proceeding itself (for example, the court overlooked a claim). If, instead, the motion advances a new claim for relief from the conviction or sentence, it is treated as a second or successive § 2255 motion, which requires prior authorization from the court of appeals.
Rule 60(b)(4) (Void Judgment): Relief is available when a judgment is void—typically because the court lacked jurisdiction or violated due process in a fundamental way. It is not a vehicle for correcting ordinary legal errors.
Law-of-the-Case: Once an appellate court decides an issue, that decision generally governs the same issue throughout the later stages of the case, including on remand and in subsequent appeals, absent extraordinary circumstances.
Actual vs. Apparent Authority: To bind the United States to a promise (e.g., non-use of statements), the government actor who made the promise must have actual authority to do so. Apparent authority or later, related involvement is insufficient; typically, only a federal prosecutor can authorize binding promises for the federal sovereign.
Federal Rule of Evidence 410: Generally excludes certain plea-related statements and pleas from evidence, but the protection can be waived—explicitly by agreement or implicitly when the defense introduces the statements, allowing the government to respond for completeness and fairness.

Conclusion

The Tenth Circuit’s denial of a COA in United States v. Brown underscores two interlocking lessons. Substantively, assurances given in a state proffer session—especially where the state expressly disclaims the power to bind federal authorities—do not constrain federal prosecutors absent proof of actual federal authorization at the time the promise is made. A later designation of a state officer as a federal case agent does not retroactively create federal obligations. Procedurally, COA applicants must engage with each independent ground supporting the district court’s ruling; failure to do so is fatal under Slack.

For practitioners, the opinion is a cautionary tale: secure explicit, federally authorized proffer protections when negotiating across sovereigns, avoid inadvertently waiving Rule 410 by introducing proffer content at trial, and in post-conviction practice, address every rationale the district court provided when seeking a COA. While nonprecedential, the order is a clear and practical synthesis of governing principles that will guide future litigants in the Tenth Circuit and beyond.

Note: The order states it is “not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel,” but it may be cited for persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.