United States v. Johnson (1st Cir. 2026): No Evidentiary Hearing Required to Exclude Cooperation/Plea Statements Absent a Requested Hearing and a Material Fact Dispute; Sentencing May Rely on Reliable PSR Accounts of Unavailable Witness Statements

I. Introduction

In United States v. Johnson (May 28, 2026), the First Circuit affirmed both the conviction and a 180-month sentence for Adam Johnson, convicted of conspiracy to distribute and possess with intent to distribute 400 grams or more of fentanyl in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).

The case arose from an unusually protracted procedural history: Johnson initially cooperated extensively with law enforcement (including serving as a DEA confidential source, proffers, and grand jury testimony), signed written plea and cooperation agreements containing explicit Rule 410 / Rule 11(f) waivers upon breach, and then ultimately elected to proceed to trial.

On appeal, Johnson raised three principal issues:

  • Statements/waivers issue: whether the district court erred by denying motions to exclude the plea/cooperation agreements and resulting statements (including grand jury testimony) without holding an evidentiary hearing, and whether the agreements were entered knowingly/voluntarily.
  • Role enhancement issue: whether a U.S.S.G. § 3B1.1 organizer/leader enhancement could be based in part on PSR accounts of statements from a witness who had died before sentencing.
  • Acceptance issue: whether Johnson’s substantial pretrial cooperation entitled him to an acceptance of responsibility reduction under U.S.S.G. § 3E1.1 despite going to trial.

II. Summary of the Opinion

The First Circuit affirmed across the board, holding in substance that:

  1. No evidentiary hearing error: Johnson did not request an evidentiary hearing below; therefore the claim was unpreserved and reviewed only for plain error. With no supported material factual dispute (and no sworn proffer), there was no clear or obvious error in the district court’s decision to rule on the motions without a hearing.
  2. Knowing/voluntary agreement challenges failed: Johnson’s new “voluntariness” theory was forfeited and not argued under plain-error standards on appeal; his “knowing” argument was undermined by his own grand jury testimony and the surrounding record showing prior discussions of the agreements and his acknowledgments that he understood them.
  3. Organizer/leader enhancement affirmed: At sentencing, the district court could consider reliable out-of-court statements contained in the PSR even if the declarant was unavailable (including due to death), so long as reliability and procedural protections were satisfied. Those requirements were met here.
  4. No acceptance reduction required: Cooperation is relevant but does not guarantee a § 3E1.1 reduction. Because Johnson went to trial disputing factual guilt and continued to contest aspects of the verdict, the denial of the reduction was not clear error. The district court permissibly granted a below-Guidelines variance to account for partial indicia of acceptance without awarding the formal adjustment.

III. Analysis

A. Precedents Cited

1. Preservation, plain error, and evidentiary hearings

  • Puckett v. United States, 556 U.S. 129 (2009): The court invoked Puckett for the baseline preservation rule—if a litigant believes an error occurred, the litigant must object to preserve the issue. This framed Johnson’s failure to request an evidentiary hearing as a dispositive procedural omission.
  • United States v. Perez-Segura, 126 F.4th 784 (1st Cir. 2025) (quoting United States v. Gertner, 65 F.3d 963 (1st Cir. 1995)): The panel applied the “did not seasonably request such a hearing” principle to reject Johnson’s attempt to fault the district court for not convening a hearing that was never asked for.
  • United States v. Papantoniadis, 165 F.4th 65 (1st Cir. 2026) (quoting United States v. Candelario-Ramos, 45 F.4th 521 (1st Cir. 2022)): These cases supplied the four-part plain-error test and underscored how demanding it is, especially when the alleged error concerns discretionary trial-management decisions like whether to hold a hearing.
  • United States v. Brown, 621 F.3d 48 (1st Cir. 2010): Cited for the proposition that whether to hold an evidentiary hearing is committed to the district court’s sound discretion.
  • United States v. Lilly, 983 F.2d 300 (1st Cir. 1992) (citing United States v. Panitz, 907 F.2d 1267 (1st Cir. 1990)): The “threshold showing” standard: a hearing is generally warranted only if the movant shows material facts are genuinely in doubt or dispute. The panel used this to find that Johnson’s filings—unsupported by sworn evidence—did not create a qualifying factual dispute.
  • United States v. Calabrese, 645 F.2d 1379 (10th Cir. 1981): Used by analogy to emphasize that unsworn allegations may be insufficient to justify an evidentiary hearing when opposed by sworn government evidence.

2. Plea/cooperation agreements, waiver, and forfeiture/waiver on appeal

  • United States v. Newbert, 504 F.3d 180 (1st Cir. 2007): Provided the interpretive framework—plea agreements are construed under basic contract principles, ambiguities construed against the government; legal construction is reviewed de novo and factual findings for clear error.
  • United States v. Rivera-Morales, 961 F.3d 1 (1st Cir. 2020): Supported the panel’s characterization of Johnson’s newly raised “voluntariness” theory as a forfeited theory subject to plain-error review.
  • United States v. Martínez-Mercado, 132 F.4th 61 (1st Cir. 2025) (quoting United States v. Cruz-Ramos, 987 F.3d 27 (1st Cir. 2021)): Established that failing to argue plain error on appeal can itself result in waiver of a forfeited claim. This was central to rejecting Johnson’s voluntariness theory as presented.
  • United States v. Adams, 971 F.3d 22 (1st Cir. 2020): The panel relied on Adams to contextualize the “knowing” inquiry with record-based considerations like the defendant’s participation in negotiations and the duration of negotiations—factors that cut against Johnson’s claim that he did not understand what he signed.

3. Discovery/Brady theory and underdeveloped argument doctrine

  • Brady v. Maryland, 373 U.S. 83 (1963) and Weatherford v. Bursey, 429 U.S. 545 (1977): The panel distinguished Brady’s due process obligation to disclose favorable material evidence from any broader notion of a general right to discovery.
  • United States v. Ruiz, 536 U.S. 622 (2002): The court used Ruiz to reject the idea that the Constitution requires disclosure of material impeachment evidence before entering a plea agreement—undercutting Johnson’s attempt to bootstrap “missing discovery” into an argument that his plea and cooperation waivers were unknowing.
  • United States v. Zannino, 895 F.2d 1 (1st Cir. 1990): Served as the basis for deeming Johnson’s “lack of discovery” contention waived as insufficiently developed. The court refused to build the argument for him.

4. Sentencing evidence, reliability, PSRs, and unavailable witnesses

  • United States v. Rondón-García, 886 F.3d 14 (1st Cir. 2018): A key authority on sentencing procedure: the Federal Rules of Evidence and the Sixth Amendment Confrontation Clause do not apply at sentencing; instead, due process and Federal Rule of Criminal Procedure 32 require sufficient indicia of reliability plus notice and an opportunity to challenge.
  • United States v. Carrión-Meléndez, 26 F.4th 508 (1st Cir. 2022): Clarified that while PSRs generally bear indicia of reliability, mere inclusion in a PSR does not automatically render a fact reliable—courts must still assess evidentiary basis and reliability.
  • United States v. Lee, 892 F.3d 488 (1st Cir. 2018): Supported reliance on PSR summaries of out-of-court statements (including from grand jury testimony or proffers) when internally consistent and mutually corroborative.
  • United States v. Cox, 851 F.3d 113 (1st Cir. 2017) and United States v. Cyr, 337 F.3d 96 (1st Cir. 2003): The court used these cases to emphasize that rhetorical or unsupported objections do not create a real dispute; absent countervailing proof, the court may rely on PSR facts.

5. Organizer/leader enhancement doctrine

  • United States v. Goncalves, 123 F.4th 580 (1st Cir. 2024): Noted an intra-circuit inconsistency in standards of review for § 3B1.1 adjustments, but the panel avoided resolving it because Johnson failed under any standard. The case was also used for the proposition that leadership may be shown where the defendant gave an order that was obeyed.
  • United States v. Poliero, 81 F.4th 96 (1st Cir. 2023) (quoting United States v. Rivera, 51 F.4th 47 (1st Cir. 2022)): Provided the “scope and status” framework: the government must prove (i) the enterprise involved five or more participants or was otherwise extensive (scope), and (ii) the defendant was an organizer/leader (status), by a preponderance of the evidence.
  • United States v. Mejia, 55 F.4th 1 (1st Cir. 2022) (quoting United States v. Graciani, 61 F.3d 70 (1st Cir. 1995)): Reinforced that criminal organizations are often informal; role is fact-specific, and leadership does not require a formal “organization chart.”

6. Acceptance of responsibility after trial

  • United States v. McCarthy, 32 F.4th 59 (1st Cir. 2022) (quoting Brown v. Plata, 563 U.S. 493 (2011)): Supplied the clear-error standard and the “definite and firm conviction” benchmark for reversal.
  • United States v. Gauthier, 53 F.4th 674 (1st Cir. 2022) (quoting United States v. Garrasteguy, 559 F.3d 34 (1st Cir. 2009), and United States v. Hines, 196 F.3d 270 (1st Cir. 1999)), and United States v. Deppe, 509 F.3d 54 (1st Cir. 2007): These decisions anchor the principle that going to trial creates a rebuttable presumption against § 3E1.1, overcome only in rare/unusual situations.
  • United States v. Nuñez-Rodriguez, 92 F.3d 14 (1st Cir. 1996): Used (via McCarthy) for the caution that cooperation can reflect pragmatic incentives rather than genuine remorse, and thus is not invariably a reliable proxy for acceptance.

B. Legal Reasoning

1. The “no hearing” holding: preservation plus the threshold-dispute requirement

The most precedent-shaping aspect of the opinion is its procedural message: a defendant cannot convert silence into error. Johnson did not request an evidentiary hearing on his motions in limine, so the First Circuit treated the claim as unpreserved and reviewed only for plain error. Under that standard and under the discretionary hearing framework (Brown; Lilly/Panitz), the court asked whether Johnson had made a threshold showing of a genuine dispute of material fact.

The court’s answer was “no,” emphasizing two features:

  • No evidentiary proffer by the defense: Johnson offered no sworn affidavit or comparable evidence supporting the assertions that would have required live factfinding.
  • Conflicting defense narratives: the panel observed contradictions between Johnson’s own filings (one conceding the decision to go to trial rather than plead; another suggesting the plea agreement was “placed into negotiation” and that the government breached). Mere contradiction did not create a genuine factual dispute requiring an evidentiary hearing.

Functionally, Johnson reinforces that evidentiary hearings on suppression/exclusion-style claims about plea/cooperation statements are not automatic; a defendant must (i) ask for one and (ii) support it with a concrete, material, and genuinely disputed factual proffer.

2. Enforcing the plea/cooperation waivers: the record of knowledge defeated the challenge

On the merits, Johnson’s “knowing” argument failed because the record contained strong contemporaneous evidence of comprehension: his sworn grand jury testimony confirming he was comfortable with substitute counsel, had enough time to discuss the agreements, agreed to plead guilty and cooperate, and understood that false testimony could trigger consequences including loss of protections.

The panel also stressed that the agreements were not sprung on him moments before signing in a vacuum: the government had previously provided an overview of the proposed plea/cooperation agreements in an October 2019 proffer session, and Johnson had indicated he understood the “tenets” of the proposal even before he signed the final documents.

On “voluntariness,” the court did not reach a substantive determination because it treated the theory as forfeited and then waived on appeal for failure to argue plain error (Martínez-Mercado; Cruz-Ramos). The practical lesson is doctrinally important: appellate courts may never reach potentially fact-intensive claims (like coercion) when the claim is not properly raised and briefed.

3. Sentencing and the deceased witness: reliability, corroboration, and Rule 32 protections

Johnson’s sentencing argument invited a confrontation-style rule at sentencing: he claimed error because the organizer/leader enhancement relied on PSR statements attributed to a witness who died and thus could not be cross-examined.

The First Circuit rejected that framing, relying on Rondón-García: the Confrontation Clause and Rules of Evidence do not govern sentencing. The governing constraints are due process and Rule 32, which require reliability, notice, and a fair opportunity to challenge.

The panel found those constraints satisfied because:

  • The statements were sourced from the witness’s grand jury testimony given under an immunity agreement (a context that can carry indicia of formality and consequences for falsehood).
  • The statements were coextensive with other trial testimony (corroboration), aligning with Lee’s acceptability of mutually corroborative grand-jury/proffer accounts in a PSR.
  • Johnson had notice via the amended PSR and an opportunity to contest reliability through objections and a sentencing memorandum, but offered only a generalized attack (addiction) without supporting proof—insufficient under Cox/Cyr.

Substantively, the organizer/leader finding rested on both “scope” (at least five participants) and “status” (organizing/leading conduct), with the court highlighting recruitment, direction-giving, travel/transport logistics, consignment/fronting, and supplier introductions as hallmarks of leadership under § 3B1.1’s commentary factors.

4. Acceptance of responsibility: cooperation is relevant but not dispositive

Applying § 3E1.1’s commentary and First Circuit precedent, the court treated trial as creating a rebuttable presumption against acceptance, overcome only in rare situations where trial is used to litigate issues unrelated to factual guilt. Johnson did not fit that pattern: he went to trial disputing factual guilt and continued to lodge objections contradicting the verdict.

The district court’s approach—denying the formal adjustment but granting a variance for partial gestures toward acceptance—was affirmed as a permissible exercise of sentencing discretion and credibility assessment.

C. Impact

1. Litigation practice: hearings are not self-executing

The opinion’s clearest prospective influence is procedural: defendants challenging the admissibility of plea/cooperation-derived statements should expect that a district court may decide the issue on paper unless the defendant requests a hearing and supplies a sworn, specific proffer showing a genuine, material factual dispute. Absent that, appellate review will likely be constrained by plain-error doctrine, which is rarely surmounted.

2. Cooperation agreements with Rule 410 / Rule 11(f) breach waivers

Johnson reinforces that explicit breach clauses and Rule 410/Rule 11(f) waivers are likely to be enforced when the record shows knowing assent—especially where the defendant later “breaches” by refusing to enter the contemplated plea after signing. The decision thus encourages careful defense practice at the signing stage: ensuring counsel presence (or documented consultation), and creating a record if any confusion, coercion, or misunderstanding exists.

3. Sentencing evidence: reliability and corroboration can substitute for cross-examination

On sentencing, the case underscores that courts may rely on PSR accounts of out-of-court statements—including from unavailable or deceased witnesses—when reliability is supported (e.g., sworn grand jury testimony) and corroborated, and when Rule 32 process is honored. The decision therefore strengthens the government’s ability to prove sentencing facts through PSR narratives where live testimony is impossible, while simultaneously highlighting the defendant’s need to present concrete rebuttal evidence rather than generalized credibility attacks.

4. Acceptance of responsibility: cooperation is only one signal

Finally, the opinion may be cited to resist arguments that extensive cooperation alone compels § 3E1.1 credit. It reaffirms that acceptance is tightly bound to the defendant’s stance on factual guilt and remorse-related conduct—both pretrial and at sentencing—and that courts can account for partial acceptance via variances rather than Guidelines adjustments.

IV. Complex Concepts Simplified

  • Rule 410 / Rule 11(f) waivers: Normally, statements made in plea discussions and related proceedings are protected from being used against the defendant. A waiver provision can permit the government to use those statements if the defendant breaches the agreement (for example, by backing out of the plea after signing).
  • “Plain error” review: A tough appellate standard applied when a party did not properly preserve an issue in the trial court. The defendant must show a clear/obvious error that affected substantial rights and seriously harmed the fairness or integrity of the proceedings.
  • Why confrontation doesn’t apply at sentencing: The Sixth Amendment right to confront witnesses is a trial right. At sentencing, courts may consider a broader range of information, but due process still demands that the information be reliable and that the defendant have notice and a chance to challenge it.
  • Organizer/leader enhancement (U.S.S.G. § 3B1.1): A four-level increase applies if the defendant led or organized a criminal activity with at least five participants (or that was otherwise extensive). Evidence can include recruiting others, directing activities, controlling distribution, or coordinating supply logistics.
  • Acceptance of responsibility (U.S.S.G. § 3E1.1): A reduction usually rewards defendants who clearly admit guilt and demonstrate remorse. Going to trial typically weighs strongly against it unless the trial is used to litigate issues not tied to factual guilt.

V. Conclusion

United States v. Johnson delivers a set of practical, litigation-shaping rules:

  • A defendant generally cannot complain on appeal about the absence of an evidentiary hearing that was never requested; and without a sworn, material factual proffer, there is no clear requirement for a hearing.
  • Knowing assent to plea/cooperation agreements—and breach-triggered Rule 410/Rule 11(f) waivers—may be established through contemporaneous sworn testimony and a record showing prior negotiation and explanation.
  • Sentencing courts may rely on PSR accounts of unavailable-witness statements (including from deceased witnesses) where indicia of reliability exist and the defendant has notice and an opportunity to contest reliability under Rule 32.
  • Extensive cooperation does not automatically entitle a defendant to acceptance-of-responsibility credit after a trial contesting factual guilt, though a sentencing court may account for partial acceptance via a variance.

In the broader legal context, the opinion stands as a cautionary precedent about preservation and evidentiary proffers, and a reaffirmation of the distinct evidentiary regime governing sentencing as compared to trial.