1 THE DEFENSE OF PUBLIC AUTHORITY, OR ENTRAPMENT BY ESTOPPEL … OR SOMETHING LIKE THAT John Irving1 Much of the confusion regarding relevancy issues in this case is probably attributable to the muddled state of the law in this circuit regarding defenses based on perceived governmental authority. It is not for this court to untangle the web of ‘FBI defense’ cases . . . . For now it will suffice to note that confusion … can be minimized or avoided in the future if litigants (and courts) state with precision the theory (or theories) they are advancing. United States v. Baptista-Rodriguez. 17 F.3d 1354 (11th Cir. 1994). I. Introduction Government agents instruct a person to do something that turns out to be a crime. The person follows that instruction and is then arrested and prosecuted for the crime. Courts have recognized that there is something fundamentally unfair and offensive about those facts, but the related legal defense has several variations and has been characterized and applied inconsistently over the last few decades. This writing is an effort to untangle the “muddled state of the law,” to assist parties and courts in determining which variety of the defense might apply in a given case, and to encourage defense counsel to consider the defense in a world of increasingly complex regulatory schemes and interactions with government regulators. Linked here are related defense and government pleadings from a recent environmental criminal prosecution in the United States District Court for the District of Alaska: Slade Pleadings Index Linked here is a summary of a number of court opinions discussing this defense: Table of Cases II. Variations of the Defense The defense is described in court decisions as the “CIA” or “FBI” defense, the defense of “reasonable good faith reliance on apparent authority,” simply as a lack of criminal intent, the “public authority defense,” and “entrapment by estoppel.” A common theme is an attempt by courts to reconcile principles of fairness and due process with the legal principle that a mistake of law is not a defense to a criminal prosecution. Recall that a “mistake of fact” is where a person was unaware of or misunderstood facts that negate criminal intent. For example, someone takes property mistakenly believing that it was his own. Mistake of fact can be a defense. “Mistake of law,” on the other hand, generally is not. That occurs where a defendant was not aware of the fact that his actions were unlawful. Ignorance of the law is usually not an 1 John S. Irving is a partner in Holland & Knight's Washington, D.C., office. Mr. Irving is a former federal prosecutor with significant trial and investigative experience. He focuses his practice on white collar defense, civil and criminal environmental matters, compliance, internal investigations, congressional investigations and maritime issues. He can be reached at 202.457.7842 or email@example.com. 2 excuse. The “Public Authority Defense” and its variations are exceptions to that general principle, where due process and fairness prevent the prosecution of a defendant who relied on a government official’s instruction or interpretation of the law. The United States Attorney’s Manual’s Criminal Resource Manual describes three versions of the defense. Id. at 2055.2 The first is what will be referred to here as the “lack of criminal intent” defense - where a defendant “honestly, albeit mistakenly, believed he/she was performing the crimes charged … in cooperation with the government.” The manual describes that version of the defense as a mistake of fact that negates criminal intent, and as being “[m]ore than an affirmative defense” – suggesting that it is not the defendant’s burden to prove, rather it is an attack on the government’s ability to prove the intent element of an offense beyond a reasonable doubt. The second category of defense described in the Manual is “the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity.” The Manual asserts that this version of the defense requires that the public official “had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts ….” As discussed, infra, however, the validity of that assertion is less than clear. This version of the defense is discussed in the cases as the “public authority defense” and the “CIA defense,” although the “CIA defense” is also used to describe the first category of “lack of criminal intent.” Unlike that first category, the “public authority defense” is described as affirmative defense that a defendant is required to prove by preponderance of the evidence. The third category of defense described in the Manual and referred to in the cases is “entrapment by estoppel.” In that defense, “a government official commits an error and, in reliance thereon, the defendant thereby violates the law.” The Manual distinguishes entrapment by estoppel from the public authority defense, where “it is the defendant whose mistake leads to the commission of the crime.” It is an exception to the mistake of law rule and is rooted in due process and fairness concerns. The Manual asserts that, like the public authority defense, entrapment by estoppel is the defendant’s burden to prove. As the Ninth Circuit has noted: The difference between the entrapment by estoppel defense and the public authority defense is not great. In the first, a government official commits an error and the defendant relies on it and thereby violates the law. . . . In the second, a government official makes some statement or performs some act and the defendant relies on it, possibly mistakenly, and commits an offense in so doing. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994) (internal citations omitted). Federal Rule of Criminal Procedure 12.3 requires notice where “a defendant intends to assert a defense to actual or believed exercise of public authority in behalf of a law enforcement agency or federal intelligence agency at the time of the alleged offense.” The Rule acknowledges the 2 Available at https://www.justice.gov/usam/criminal-resource-manual-2055-public-authority-defense. 3 availability of the defense but defines it broadly without discussion of the variations described above. The Rule also includes the phrase “actual or believed” – suggesting the viability of a defense based on apparent authority. The overall defense evolved from Raley v. Ohio, 360 U.S. 423 (1959) and Cox v. Louisiana, 379 U.S. 559 (1965). Raley’s conviction for refusing to answer questions from a state commission that mistakenly told him that he had a privilege and did not need to answer the questions, was reversed because he was permitted to reasonably rely on a mistake made by a government official. Cox was arrested for demonstrating “near” a courthouse after the Chief of Police told him (and about 2,000 other protestors) that they could demonstrate across the street from the courthouse, where they were arrested. The Court reversed the conviction on due process grounds. The defense in Cox was later characterized as relying on “more general principles of due process.” United States v. Lansing, 424 F.2d 255 (9th Cir. 1970) (affirming conviction of a draftee who unreasonably relied on incorrect information from the draft board and failed to timely claim conscientious objector status). The defense continued to have a vague description in United States v. Barker, 546 F.2d 940 (1976), where it was referred to as the defense of “reasonable good faith reliance on apparent authority.” In Barker, the D.C. Circuit reversed convictions of White House “Special Investigations Unit” burglars, who claimed to have been authorized by a senior White House official. Several cases in the 1980s characterized the defense as the “Defense of Apparent Authority,” the “Mistake of Law Defense,” and finally the “CIA Defense.” Those cases involved defendants who claimed to have been working for others who either were, or the defendants reasonably believed were, agents of the CIA or other federal government agencies. Some of those cases arose in the context of defendants seeking access to classified information under the Classified Information Procedures Act (CIPA). Most dealt with whether the government official needed actual authority to give the direction in question – or whether apparent authority sufficed – and the reasonableness of the defendant’s reliance on the direction. See United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) (affirming convictions of defendants who conspired to sell weapons to the IRA who claimed to be working at the direction of the CIA); United States v. Smith, 592 F.Supp. 424 (E.D. Va. 1984) (permitting use of classified information by a defendant who claimed that the CIA authorized him to disclose classified information to a Soviet agent); United States v. Juan, 776 F.2d 256 (11th Cir. 1985) (conditional guilty plea vacated and defendant provided access to classified information where drug trafficking defendant claimed to be working for the federal government); United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986) (conviction affirmed in relevant part where drug trafficking defendant claimed to be working with the CIA); United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989) (conviction affirmed in relevant part where Army Special Forces soldiers sold explosives and weapons claiming to be authorized by the CIA and that the weapons were needed for a covert operation in Central America); and United States v. Mason, 902 F.2d 1434 (9th Cir. 1990) (convictions reversed where defendants claimed the FBI authorized them to operate a prostitution business in order to serve as organized crime informants). Around the same time and continuing into the 1990s, several cases referred to the “Entrapment by Estoppel” defense. See United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987) (reversing gun possession conviction where defendant relied on statements of a federally licensed firearms 4 dealer and advice of counsel that prior felony conviction that had been reduced to a misdemeanor did not prohibit him from purchasing a firearm); United States v. Clegg, 846 F.2d 1221 (9th Cir. 1988) (CIPA ruling permitting defense access to classified information affirmed where defendant worked in Pakistan and claimed that he sold weapons to Afghan rebels fighting the Soviet Union at the direction of U.S. government officials); United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990) (reversing conflict of interest conviction of former Air Force officer who relied on advice from his Air Force Standards of Conduct Counselor); United States v. Brebner, 951 F.2d 1017 (9th Cir. 1991) (affirming conviction for firearms possession offenses where defendant claimed to have relied on statements and actions of a federally licensed firearms dealer); and United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993) (affirming convictions of sewage treatment plant operators who claimed to have relied on permit terms and regulatory authorities when discharging untreated sewage near a surfing beach in Hawaii). In 1994, the Eleventh Circuit recognized the “muddled state of the law” with regard to the defense: Much of the confusion regarding relevancy issues in this case is probably attributable to the muddled state of the law in this circuit regarding defenses based on perceived governmental authority. It is not for this court to untangle the web of ‘FBI defense’ cases . . . . For now it will suffice to note that confusion … can be minimized or avoided in the future if litigants (and courts) state with precision the theory (or theories) they are advancing. United States v. Baptista-Rodriguez. 17 F.3d 1354 (11th Cir. 1994) (affirming in part and reversing in part drug trafficking conviction where defendant claimed to be working for law enforcement and sought to introduce classified details of his prior relationship with the FBI). Since then, several cases referenced the “Public Authority” and “Entrapment by Estoppel” defenses. See United States v. Burrows, 36 F.3d 875 (9th Cir. 1994) (affirming drug trafficking conviction in relevant part where defendant asserted the public authority defense claiming to have been working undercover for law enforcement); United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995) (affirming RICO offenses where court denied public authority defense based on a news article about CIA involvement in drug trafficking and arming the Nicaraguan Contras); United States v. Abcasis, 45 F.3d 39 (2d. Cir. 1995) (reversing conviction and permitting entrapment by estoppel defense where DEA informants claimed that drug trafficking was sanctioned by the government); United States v. Spires, 79 F.3d 464 (affirming conviction where defendant sought an entrapment by estoppel instruction for firearms offense based on statements of a state task force agent a year earlier); United States v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir. 2000) (affirming immigration offense conviction where defendant sought to assert entrapment by estoppel defense based on an INS form incorrectly stating that a deported alien could return to the U.S. after five years); United States v. Batterjee, 361 F.3d 1210 (9th Cir. 2004) (reversing firearm conviction where defendant asserted entrapment by estoppel defense where he truthfully answered questions on an ATF form and was told by federally-licensed firearms dealer that he was eligible to purchase a firearm); United States v. Baker, 438 F.3d 749 (7th Cir. 2006) (affirming firearm conviction where defendant asserted both the public authority 5 and entrapment by estoppel defenses claiming to have been acting at the direction of law enforcement); United States v. Bear, 439 F.3d 565 (9th Cir. 2006) (reversing drug trafficking conviction where court failed to instruct jury sua sponte on the public authority defense where defendant claimed to have acted at the direction of law enforcement); United States v. Sariles, 645 F.3d 315 (5th Cir. 2011) (affirming drug trafficking offense where defendant asserted public authority defense and claimed to have been acting on the authority of law enforcement); and United States v. Doe (9th Cir. 2013) (reversing drug trafficking conviction where defendant asserted public authority defense and claimed to have been acting at the direction of the FBI). III. Recurring Legal Issues Several issues are discussed frequently in the court opinions and require some thought when deciding which of the variations a defendant seeks to assert. A. Specific Intent v. General Intent One recurring issue is whether the charged offense is a specific or a general intent crime. Reliance on governmental authority can be a mistake of fact that negates a specific intent to violate the law. This is the first of the three variations discussed in the U.S. Attorney’s Manual – a lack of criminal intent – where a defendant argues that the government failed to prove the intent element of the offense. The defense is not rooted in fairness and due process concerns, and it is not an affirmative defense that the defendant needs to prove. Conversely, where the charged offense is a general intent crime, it is more difficult to argue that the government failed to establish intent based on a defendant’s reliance on direction from the government. That is particularly true where “knowing” public welfare offenses have been held to mean only that a defendant knew that he did something that happened to violate the law, and not that he knew that he violated the law when he did so. See, e.g., United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993). General intent crimes, then, lend themselves more to the public authority defense – where the defendant makes a reasonable mistake and relies on a grant of authority from an official; or to entrapment by estoppel – where it is the government official making the mistake. Both involve an admission that the defendant knowingly did something that violated the law, but provide an affirmative due process defense. In short, if the charged offense is a specific intent crime, the first version of the defense, where the burden is on the government to disprove the defense in order to establish the necessary intent element, might be available. It the charged offense is a general intent crime, the “public authority” or the “entrapment by estoppel” versions of the defense might be more appropriate. See, e.g., United States v. Brebner, 051 F.2d 1017, 1025 (9th Cir. 1991) (additional internal citations omitted): At the outset, we note that section 1202(a) and 922(h) violations are not specific intent crimes requiring proof of scienter. See [United States v. Tallmadge, 829 F.2d 767, 722 (9th Cir. 1987)] … Thus, our focus is not on any belief on Brebner’s part that the expungement of his state crimes made it lawful for him to purchase firearms under federal law. … As a result, it can be raised as a defense to offenses that do 6 not require proof of specific intent. … In short, the defense involves the “concept of unintentional entrapment by an official who mistakenly misleads a person into a violation of the law.” Tallmadge, 829 F.2d at 773. See also United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990) (entrapment by estoppel “may be raised even in strict liability offense cases.”). B. Actual Versus Apparent Authority Several cases focus on whether the government official must actually have the authority to direct the defendant to engage in the conduct at issue, or whether apparent authority suffices, i.e., that the defendant reasonably believed that the official had that authority. The D.C. Circuit reversed convictions based on apparent authority in the 1976 Watergate case of United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976). Not long after, the Second Circuit rejected that reasoning and required the government official to have actual authority. United States v. Duggan, 743 F.2d 59 (2d. Cir. 1984). Other cases supporting apparent authority are: United States v. Juan, 776 F.2d 256 (11th Cir. 1985); United States v. Clegg, 846 F.2d 1121 (9th Cir. 1988) (limited discussion – see dissent); United States v. Mason, 902 F.2d 1434 (9th Cir. 1990); United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990); United States v. Burrows, 36 F.3d 875 (9th Cir. 1994); United States v. Abcasis, 45 F.3d 39 (2d. Cir. 1995); United States v. Baker, 438 F.3d 749 (7th Cir. 2006); and United States v. Bear, 439 F.3d 565 (9th Cir. 2006). Other cases requiring actual authority are: United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986); United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989); United States v. Brebner, 951 F.2d 1017 (9th Cir. 1991); United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995); United States v. Spires, 79 F.3d 464 (5th Cir. 1996); United States v. Batterjee, 361 F.3d 1210 (9th Cir. 2004); and United States v. Sariles, 645 F.3d 315 (5th Cir. 2011). The confusion over the different versions of this defense contribute to the lack of clarity as to whether actual or apparent authority is required, and it is important to distinguish which defense is being asserted in a case discussing the authority requirement. It stands to some reason that actual authority is more of an issue in the “public authority” version of the defense, and not in the “entrapment by estoppel” version. The parties in Baker operated under that distinction, but the Ninth Circuit nonetheless noted: Most of these cases from other circuits generally limit the public authority defense to those situations in which the government official in fact had the authority to empower the defendant to perform the acts in question. This is despite the language of Federal Rule of Criminal Procedure 12.3(a)(1), which states, “if a defendant intends to assert a defense of actual or believed exercise of public authority on behalf of a law enforcement agency … at the time of the alleged offense, the defendant [must notify the government and the court]”. Id. at 753 (emphasis in original). 7 One likely argument from the government will be that the government official lacked authority because the official was not authorized to instruct the defendant to break the law. See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754 at fn. 12 (9th Cir. 1995) (Defense would probably fail as a matter of law because “[t]he CIA is prohibited from violating the statutes of the United States and hence, a CIA agent could not lawfully authorize the violation of the federal drug laws.”); United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989) (“Because the CIA had no real authority to violate the statutes of the United States, appellants’ theory that they were acting on apparent authority of an alleged CIA agent is not a viable defense.”). If that were the test, it is difficult to imagine when any version of the defense would ever be available. See, e.g., United States v. Hedges, 912 F.2d 1397, 11th Cir. 1990) (“The premise is faulty. There has never been a suggestion that [the government official] could waive or authorize a violation of the statute. On the contrary, the only issue before us, clearly, is whether [the defendant] acted on advice that he was not violating the statute.”). C. Burden of Proof The first version of the defense, that the defendant lacked intent, keeps the burden of proof on the government to prove the required intent beyond a reasonable doubt. The public authority and entrapment by estoppel versions of the defense are affirmative defenses that the defendant must prove by a preponderance of the evidence. See United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Baptista-Rodriguez. 17 F.3d 1354 (11th Cir. 1994). The Ninth Circuit fairly recently attempted to clarify the public authority defense, and whose burden it is, in light of case law on the definition of term “knowingly”. United States v. Doe, 705 F.3d 1134 (9th Cir. 2013). The court analogized the public authority defense to the affirmative defense of duress. The court reversed a drug trafficking conviction where the defendant asserted the public authority defense and claimed to have been operating at the direction of the FBI. Quoting the Supreme Court’s decision on duress in United States v. Dixon, 548 U.S. 1 (2006), the court explained that “Congress has moved away from the general/specific intent dichotomy in favor of a more defined hierarchy of culpability.” Doe at 1144 (quoting Dixon at 7). In finding that the public authority defense was an alternative defense that must be proven by a defendant in that case, but that it was not a per se rule, the court held that: [t]he court must always look closely to the statutory language of the specific offense charged and determine: (1) whether the public authority defense negates an element of the charged offense that the Government must prove beyond a reasonable doubt and (2) whether Congress intended to alter the common law rules governing the public authority defense [in the statute at issue]. Doe at 1147 (quoting United States v. Jumah, 493 F.3d 868, 873 (7th Cir. 2007). 8 IV. Practical Considerations and Resources It is important during the investigative and pre-trial stages of a case to gather facts that might support one of the defenses based on government authority. What, if any, communications has the defendant had with the government? Does the investigation involve complex regulatory matters where directives and guidance from government authorities might have been documented? Is there more than one relevant government agency involved? If so, were mixed messages given? Should discovery demands seek internal government information that would support the defense? Are there facts to support the argument that the government official acted with actual authority? With apparent authority? What, exactly, was the direction that the government official gave that induced the criminal act? Might there be classified information that would support the defense? If so, there are procedural requirements under the Classified Information Procedures Act (CIPA), 18 U.S.C. App. III. § 1, et seq. Remember that Federal Rule of Criminal Procedure 12.3 requires the defense to provide the government with (and file with the court) written notice of an intent to assert the defense “within the time provided for filing a pretrial motion, or at any later time the court sets.” It must be filed under seal if it identifies a federal intelligence agency as the source of the public authority. The notice must contain the following information: (A) the law enforcement agency or federal intelligence agency involved; (B) the agency member on whose behalf the defendant claims to have acted; and (C) the time during which the defendant claims to have acted with public authority. The Rule also creates a continuing obligation to disclose witness information. Early on, keep in mind the need to determine and articulate which of the three versions of the defense are being asserted. Understand that the public authority and entrapment by estoppel versions essentially require the defendant to otherwise admit the defense. Perhaps there are better defenses focused on other elements of the offense. If some version of this defense is appropriate, determine whether the anticipated charged offenses are specific or general intent crimes. Research the implications of the selection in the relevant Circuit as to whether apparent authority suffices, or whether actual authority is needed. Determine what the government official’s authority actually is. Anticipate a motion from the government seeking to preclude the defense. Incorporate the defense into jury instructions and materials - submit a proposed jury instruction on the defense, propose edits to model instructions to make them fit the version of the defense being asserted, include a proposed instruction on the theory of the defense, and seek to include language about the defense on the verdict form. Some model jury instructions available online are listed below. 3 Some directly address the public authority and entrapment by estoppel defenses. Others reference the defenses in comments to instructions on entrapment or would need to rely on broader instructions about the defendant’s intent. 3 The privately-run website “Federal Evidence Review” contains links to pattern criminal jury instructions for most Circuits. See http://federalevidence.com/evidence-resources/federal-jury-instructions#circuit. 9 First Circuit o Pattern Instruction 5.02 – Mental State that is Inconsistent with the requisite Culpable State of Mind. o Pattern Instruction 5.05 – Entrapment. See Comment 7 regarding the separate defense of Entrapment by Estoppel. Third Circuit o Pattern Instruction 5.07 – Good Faith Defense Fifth Circuit o Pattern Instruction 1.28 – Entrapment. See Comment regarding the “related defense” of entrapment by estoppel. Sixth Circuit o Pattern Instruction 6.09 – Entrapment by Estoppel Seventh Circuit o Pattern Instruction 6.06 – Reliance on Public Authority o Pattern Instruction 6.07 – Entrapment by Estoppel Eighth Circuit o Pattern Instruction 9.01 – Entrapment. See Comment regarding the “Entrapment by Estoppel” defense. o Pattern Instruction 9.08 A & B – Good Faith Ninth Circuit o Pattern Instruction 6.11 – Public Authority or Government Authorization Defense Tenth Circuit o No specific mention of the defenses. Eleventh Circuit o Pattern Instruction 17 – Good Faith Defense (to fraud). Note that an entrapment instruction is unlikely to be a proper substitute to an instruction on entrapment by estoppel. See, e.g., United States v. Mason, 902 F.2d 1434 (9th Cir. 1990). V. Application of the Defense in Complex White Collar Cases Many of the cases involving defenses based on governmental authority involve events that are limited in duration, such as a drug or gun transaction. Anticipate that the government will broadly characterize the defenses as applying to situations where a defendant is directed by CIA of FBI agents to perform a specific act. The defenses should be considered, however, in more complex regulatory cases where a defendant had frequent interactions with government inspectors and other regulatory personnel. All the more appropriate where the defendant received conflicting direction from different regulatory agencies – for example in the context of environmental crimes, Medicare fraud, tax offenses, and mining and worker safety violations. There are a few examples of the defenses being asserted in complex regulatory schemes are at issue. In 1973, the Supreme Court held that a corporation was entitled to argue that it had been affirmatively misled by Army Corps of Engineers regulations to believe that it did not need a permit to discharge waste from a manufacturing plant into a river. United States v. Pennsylvania Industrial Chem. Corp., 411 U.S. 655 (1973). That case involved violations of the Rivers and Harbors Act, which prohibited knowingly depositing refuse matter into a river without a permit 10 from the Army Corps of Engineers, which had taken the position in regulations that a permit was not necessary unless the deposits impeded or obstructed navigation. In another case, the Ninth Circuit rejected a defendant’s argument that a jury instruction was insufficient to permit the jury to consider his argument that the Bureau of Land Management authorized him to sell horses to a slaughter house in violation of the Wild Free-Roaming Horses and Burros Act. United States v. Hughes, 626 F.2d 619 (9th Cir. 1980). See also United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990) (reversing conviction of Air Force officer for taking government action with a conflict of interest); United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993) (affirming convictions of sewage treatment plant operators who claimed to have relied on permit terms and regulatory authorities when discharging untreated sewage near a surfing beach in Hawaii). In a recent environmental criminal trial in the District of Alaska, the Court permitted a jury instruction on the entrapment by estoppel defense. United States v. James Slade, Case No. 3:14- CR-00103-SLG. That case involved a platinum mine that discharged water into a river that exceeded a Clean Water Act permit’s turbidity levels. The evidence at trial included communications with and several inspection visits and reports from a Bureau of Land Management Compliance Inspector acknowledging the turbidity and documenting plans to correct the problem. The Compliance Inspector even sent the defendant a BLM baseball cap with a note thanking the defendant for his cooperation. The government opposed the requested instruction throughout the trial, and the Court declined to rule on the instruction until closing arguments. That put the defendant in the precarious position of admitting the violation in order to explain his reliance on his communications with the government without knowing whether he would be permitted to argue that defense to the jury. At the last minute, the government withdrew its opposition to a jury instruction on the defense, which the Court then gave. The related pleadings and other materials from the Slade case are linked on the first page of this article. They include: 1. Order Re Motions in Limine (Docket 136). 2. Defendant’s Motion for Leave to File Rule 12.3 Notice of Exercise of Public Authority (Docket 146). 3. Defendant’s Motion for Reconsideration and for Related Jury Instruction on “Knowingly” and reliance on Public Authority (Docket 148). 4. USA Opposition to Defendant’s Motion for Leave to File Rule 12.3 Notice of Exercise of Public Authority (Docket 149). 5. United States’ Opposition to Defendant’s Motion for Reconsideration and for Related Jury Instructions on “Knowingly” and Reliance on Public Authority, and Motion in Limine to Preclude any Public Authority Defense (Docket 159 and 160). 6. Defendant’s Opposition to the Government’s Motion in Limine to Preclude any Public Authority Defense (Docket 170). 7. Defendant’s Proposed Jury Instructions (Docket 184). 8. Order re Docket 146, 148, 149, 159, 160, 170 (Docket 193). 9. United States’ Motion in Limine Regarding Entrapment by Estoppel Defense and Proposed Jury Instruction Language (Docket 219). 11 10. Defendant’s Notice of Responses to Draft Preliminary Closing Jury Instructions (Docket 221 and 221-1). 11. Defendant’s Opposition to Government’s Motion in Limine Regarding Entrapment by Estoppel Defense and Proposed Jury Instruction Language (Docket 226). 12. United States’ Response to Docket 226 and Reply in Support of Motion in Limine Regarding Entrapment by Estoppel Defense (Docket 228). 13. Final Preliminary Closing Jury Instructions (Docket 243) (See Preliminary Closing Instruction # 24). VI. Conclusion The defense of reliance on governmental authority seeks to address the fundamental unfairness of prosecuting someone for doing what the government told them to do. It has evolved into three similar categories that cause confusion to both counsel and courts. Defense counsel should give early consideration to whether a case has an element of government direction or acceptance of a defendant’s actions, especially in complex regulatory offenses where a defendant communicates with one or more government agency. If so, counsel should develop those facts, assert the defense in notice and pleadings, and be prepared to articulate the basis for the defense.