Public Authority Defense
There has been considerable confusion in the law regarding what
truly constitutes a defense of governmental authority. There are at least
three different defenses that in theory a defendant might assert when he/she
alleges that he/she committed the crimes charged in response to a request
from an agency of the government. In gauging the appropriate response to
rebut the defense, the government should determine which of the defenses
actually applies and, if necessary, file the necessary pleadings to have the
defendant elect which defense is at issue.|
First, the defendant may offer evidence that he/she honestly,
mistakenly, believed he/she was performing the crimes charged in the
indictment in cooperation with the government. More than an affirmative
defense, this is a defense strategy relying on a "mistake of fact" to
undermine the government's proof of criminal intent, the mens rea element of
the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354,
1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508,
1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989);
United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The
defendant must be allowed to offer evidence that negates his/her criminal
intent, id., and, if that evidence is admitted, to a jury instruction
on the issue of his/her intent, id., and if that evidence is
admitted, he is entitled to a jury instruction on the issue of intent.
United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995);
States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the
Eleventh Circuit approved the district court's instruction to the jury that
the defendants should be found not guilty if the jury had a reasonable doubt
whether the defendants acted in good faith under the sincere belief that
their activities were exempt from the law.
In Juan, the defendant admitted the criminal acts charged
against him, but sought to defend by demonstrating a lack of criminal
intent, i.e., that he thought he was doing those things in cooperation with
the United States government. Specifically, he moved, pursuant to the
dictates of Classified Information Procedures Act (CIPA), to use classified
information to prove a prior relationship with a government agency in order
to prove that his belief of cooperation was reasonable. The court held that
... the mere fact that appellant had, in the past, engaged in the
activity he seeks to prove does not insulate him from criminal
responsibility for unlawful acts thereafter. . . Yet, the past events tend
to make more plausible that which, absent proof of those events, would be
implausible. Appellant should be allowed to establish the premise for his
The second type of government authority defense 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. This defense may
lie, however, only when the government official in question had actual
authority, as opposed to merely apparent authority, to empower the defendant
to commit the criminal acts with which he is charged. United States v.
Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793
F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir.
1986), cert. denied, 480 U.S. 919 (1987). The genesis of the
"apparent authority" defense was the decision in United States v.
Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved
defendants who had been recruited to participate in a national security
operation led by Howard Hunt, whom the defendants had known before as a CIA
agent but who was then working in the White House. In reversing the
defendants' convictions, the appellate court tried to carve out an exception
to the mistake of law rule that would allow exoneration of a defendant who
relied on authority that was merely apparent, not real. Due perhaps to the
unique intent requirement involved in the charges at issue in the
Barker case, the courts have generally not followed its "apparent
authority" defense. E.g., United States v. Duggan, 743 F.2d
59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at
1235-36. If the government official lacked actual or real authority,
however, the defendant will be deemed to have made a mistake of law, which
generally does not excuse criminal conduct. United States v.
Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d
at 1236; United States v. Duggan, 743 F.2d at 83-84. But see
discussion on "entrapment by estoppel," infra.
The last of the possible government authority defenses is
"entrapment by estoppel," which is somewhat similar to public authority. In
the defense of public authority, it is the defendant whose mistake leads to
the commission of the crime; with "entrapment by estoppel," a government
official commits an error and, in reliance thereon, the defendant thereby
violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th
Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir.
1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988);
United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987).
Such a defense has been recognized as an exception to the mistake of law
rule. In Tallmadge, for example, a Federally licensed gun dealer
sold a gun to the defendant after informing him that his circumstances fit
into an exception to the prohibition against felons owning firearms. After
finding that licensed firearms dealers were Federal agents for gathering and
dispensing information on the purchase of firearms, the Court held that a
buyer has the right to rely on the representations made by them. Id.
at 774. See United States v. Duggan, 743 F.2d at 83
(citations omitted); but, to assert such a defense, the defendant bears the
burden of proving that he\she was reasonable in believing that his/her
conduct was sanctioned by the government. United States v. Lansing,
424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows,
36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).
Federal Rule of Criminal Procedure 12.3
Regardless of which form of the government authority defense the
defendant chooses to pursue, the Federal rules require notice of the defense
well in advance of trial. As the following discussion demonstrates, it also
offers the government the opportunity to challenge the defense to justify in
advance any proposed foray into law enforcement or IC files.
Fed.R.Crim.P. 12.3 is the newest of three rules pertaining to
specific defenses and requiring advance notice to the government before
being asserted by a defendant. The rule provides as follows, in pertinent
Notice Of Defense Based Upon Public Authority
(a)(1) A defendant intending to claim a defense of actual or believed
exercise of public authority on behalf of a law enforcement or Federal
intelligence agency at the time of the alleged offense shall. . .serve upon
the attorney for the government a written notice of such intention. . . .
Such notice shall identify the law enforcement or Federal intelligence
agency and any member of such agency on behalf of which and the period of
time in which the defendant claims the actual or believed exercise of public
When the prosecutor has reason to believe that a Rule 12.3 defense
is likely to be asserted to a pending indictment, the prosecutor should
consider immediate action to force the issue, such as filing a demand for
notice pursuant to Rule 12.3(a)(1). The responsive notice, if it is as
comprehensive as this section stresses below it should be, will provide the
prosecutor with abundant information that can guide that prosecutor's
strategy and tactics in preparing for trial.
Moreover, if the responsive notice alleges public authority by an
agency of the IC, it most certainly signals that the prosecutor must
consider invoking CIPA. With such an invocation will come enormous
administrative burdens, both for the prosecutor and for the court, as
security clearances must be obtained, proper facilities established for
storing classified documents, and potentially innumerable hearings held
under sections 4 and 6 of CIPA to determine the admissibility of classified
When a prosecutor receives a 12.3 notice, he/she should not
hesitate, but should respond quickly and aggressively to determine whether
there is a true public authority defense at hand, or just a diversionary
tactic. If the prosecutor is able successfully to handle the Rule 12.3
issue, he/she may avoid the immense impact on the preparation of the case
that is inevitably involved when classified information becomes at risk.
The information that follows is offered to assist in that regard.
Rule 12.3 has been held not to improperly infringe upon a
defendant's guarantee against self-incrimination, United States v.
Abcasis, 785 F. Supp. 1113, 1116-17 (E.D.N.Y. 1992), rev'd on other
grounds, 45 F.3d 39 (2d Cir. 1995); or upon the defendant's due process
rights to reciprocal discovery, 785 F.Supp at 1118; and not to abridge a
defendant's right of compulsory process. United States v. Seeright,
978 F.2d 842, 848-49 (4th Cir. 1992). In reaching these conclusions, the
respective courts have analogized Rule 12.3 to its sister rules, 12.1 and
Rule 12.1 provides for pretrial notice to the government of the
defendant's intention to offer a defense of alibi. The government carries
the burden of triggering the notice requirement through a written demand
served upon the defendant specifying the time, date, and place of the
charged offense. If the defendant intends to offer an alibi defense, he/she
must then respond by specifying his/her whereabouts at the time of the
offense and by identifying the witnesses whom he/she intends to call to
prove his/her alibi. The prosecution must then serve the defendant with
notice of those witnesses who will place him/her at the crime scene.
Florida's notice of alibi provision, which is virtually identical
Rule 12.3, was considered and its constitutionality upheld in Williams v.
Florida, 399 U.S. 78 (1970). Specifically, the Court noted that there
is no abridgement of the Fifth Amendment's protection against
self-incrimination by requiring a defendant to give notice of intent to
assert a defense, as opposed to requiring a defendant to testify in support
of that defense. Moreover, the court recognized a strong government
interest in avoiding the unfair prejudicial surprise that would occur if the
defendant were allowed to assert an alibi defense without warning.
Id. at 1116-17. The legislative history behind Rule 12.1 reflects
that Congress was also concerned that the prosecution not be unfairly
surprised at trial by only then learning of the defendant's claim of an
alibi. Thus, to avoid unnecessary interruption and delay in the trial while
the government conducts an investigation into the alibi, it included advance
notice and exchange of witness names as a condition to assert the defense.
H.R.Rep.No. 247, 94th Cong., 1st Sess. 8, re-printed in 1975 U.S.Code
Cong. & Ad.News 674 et seq.; Notes of Committee on the Judiciary House
Report No. 941-247. See 8 J. Moore, Moore's Federal Practice
12.1.02 (2d ed. 1981).
Similarly, Rule 12.2 requires a defendant to give notice to the
government of his/her intent to rely on an insanity defense. The Notes of
the Advisory Committee on Rules state that
[t]he objective [of Rule 12.2] is to give the government time to prepare
to meet the issue, which will usually require reliance upon expert
testimony. Failure to give advance notice commonly results in the necessity
for a continuance in the middle of a trial, thus unnecessarily delaying the
administration of justice.
Like its companion rules, Rule 12.3 is designed to provide the
government with reasonable notice that the defendant intends to defend the
charges against him in a very unique way, that is, by admitting the crimes
but denying criminal intent by claiming that he was authorized to do so by a
representative of the government. The purpose of requiring a particularized
list of witnesses under any of these unique defense notice rules is to
ensure that the defense is a real defense, to avoid prejudicial surprise,
and to obviate the need for continuances. In the context of an alibi
defense, the courts have held, for example, that, to avoid rendering Rule
12.1 useless, the Rule necessarily requires a reasonable threshold of
completeness and specificity. See United States v. Vela, 673
F.2d 86, 68-89 (5th Cir. 1982); United States v. Myers, 550 F.2d
1036, 1041-43 (5th Cir. 1977). Similar specificity and forthrightness have
been held to be required as to notice under Rule 12.2. United States v.
Ruchbinder, 796 F.2d 910, 915 (7th Cir. 1986)
The same argument must reasonably apply to Rule 12.3. If the
of the rule is to be accomplished, the defendant who asserts a public
authority defense should be required to answer the following questions in
his/her Rule 12.3 Notice: Who does the defendant say authorized him to
perform the criminal acts with which he is charged? When and where did that
In short, the defendant must be required, as part of his/her
to make a prima facie showing of a colorable public authority defense. Mere
speculation that the government knew of the defendant's activity is
insufficient. Likewise, the claim that the government was fully aware of
the defendant's criminal acts, and for whatever reason did not interfere, is
simply not public authority. The court in United States v.
Rosenthal, 793 F.2d 1214 (11th cir. 1986), held that the defense of
public authority must depend upon a grant of authority that is real, and not
merely apparent. See also United States v. Lopez-Lima, 738 F.
Supp. 1404 (S.D.Fla. 1990). Moreover, the authority must actually be given,
not simply presumed, by the defendant. The imagined specter of some
lurking, invisible government presence, coupled with the fact that the
government never interfered with the defendant's criminal activity, is not
public authorization. If it were a defense, it would be a haven for the
In substance, the rule provides:
- A defendant intending to file a claim of actual or believed
exercise of public authority shall serve upon the government a notice of
such public authority.
- The notice shall identify the law enforcement or Federal intelligence
agency and any member of such agency on behalf of which defendant claims the
actual or believed exercise of public authority occurred. The government
must admit or deny the public authority happened.
- At the time the government responds to the defense claim, the
government may make a written demand for the names and addresses of
witnesses the defendant intends to rely on to prove the defense.
- Within seven days after service of the government's demand, the defense
must provide the names and addresses of witnesses upon which the defense
intends to rely to prove its defense.
- Seven days after the government receives a list of the defense
witnesses, the government must supply a witness list of government witnesses
that the government intends to rely on in opposing the defense.
In cases involving CIPA, the government may not want to ask for
reciprocal discovery if the government will have to divulge names of
undercover intelligence agents.
It cannot be seriously disputed that a defendant should have the
opportunity to assert a fact-based defense that someone in the
government asked him/her to commit the crimes alleged in the indictment for
political, diplomatic, or any other reason he cares to offer. But the
quid pro quo must be that the defendant identifies specifically the
person or persons who directly, or even by a "wink and a nod," conferred on
his/her authority to act on behalf of the government; and he\she must be
required to link any alleged grant of authority to act for the government
specifically to one or more of the crimes in the indictment.
[cited in Criminal Resource Manual 2050]