Entrapment By Estoppel

United States v. Giffen, 473 F.3d 30 (2d Cir. 2006)

The Second Circuit discusses at some length – all of which is dicta – the concept of entrapment by estoppel and the defense of “public authority.”

United States v. Batterjee, 361 F.3d 1210 (9th Cir. 2004)

The defendant was not a citizen and, pursuant to 18 U.S.C. § 922(g)(5)(B) was not permitted to possess a firearm. When he went to a store to buy a gun, the dealer asked certain questions, each of which the defendant answered accurately – including the fact that he was not a citizen – and filled out the required forms accurately, as well. The dealer followed up with certain questions relating to his citizenship answer and then sold him the gun. The dealer did not specifically ask, however, whether the defendant was in the United States on a work visa (which was what disqualified him for possessing a firearm). The Ninth Circuit held that the prosecution was barred under the theory of entrapment by estoppel.

United States v. Abcasis, 45 F.3d 39 (2d Cir. 1995)

The defendants claimed that they had been informants for the DEA and engaged in a narcotics smuggling operation, believing that this was authorized by their informant status. The trial court erred in denying their request for an instruction on the law of entrapment by estoppel. In order to be entitled to this instruction, the defendant must show that his reliance on the government agent’s statement was reasonable in that “a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.” In essence, the defendant must show that although he was mistaken, in good faith he believed that his conduct was authorized by the law enforcement agent with whom he was working.

United States v. Albertini, 830 F.2d 985 (9th Cir. 1987)

The defendant was a frequent protester for nuclear disarmament at military bases on “open house” days. After one conviction, the Ninth Circuit held that his conduct was protected by the First Amendment. He continued to engage in these protests, in reliance on the Ninth Circuit decision and was again arrested. Subsequently, the United States Supreme Court reversed the decision of the Ninth Circuit. In the subsequent prosecution, the Court held that he had the right to rely on the Ninth Circuit decision and the prosecution was barred. A later Ninth Circuit decision overruled Albertini, on the basis of the Supreme Court decision in United States v. Rodgers, 466 U.S. 475 (1984). United States v. Qualls, 172 F.3d 1136 (9th Cir. 1999).

United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987)

The defendant was advised by a federally licensed firearms dealer that the defendant could purchase a firearm despite his prior conviction of a felony because the felony conviction was reduced to a misdemeanor. This was incorrect advice. Nevertheless, by the doctrine of entrapment by estoppel, the defendant could not be convicted of possessing a weapon after having been convicted of a felony.

United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994)

The defendant was a convicted felon. For several years, he acted as an informant for the government, including the FBI and the ATF. In this prosecution for being a felon in possession of a firearm, he sought to rely on an entrapment by estoppel defense. The trial court incorrectly held that this was not a legal defense to a §922 charge. See e.g., Lewis v. United States, 445 U.S. 55 (1980); United States v. Billue, 994 F.2d 1562 (11th Cir. 1993). Entrapment by estoppel focuses on the actions of the government officials, not the state of mind (or predisposition) of the defendant. Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that official. Because the defense rests on principles of fairness, it may be raised even in strict liability offense cases. Finally, the defendant’s proffer was sufficient to justify submitting the evidence to the jury. If there is any basis to support the defense, the jury should have been permitted to hear the testimony and weigh the evidence itself. Even if the defendant’s testimony regarding the alleged conduct of the officials authorizing his possession was not credible, as the government asserts and the district court found, it is the jury’s, not the district court’s, function to determine questions of credibility and assess the defendant’s testimony.

United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990)

18 U.S.C. §208(a) is a strict liability offense. One who takes government action while having a conflicting financial interest is guilty of the offense even if he has no intent to violate the statute. However, in this case, the conviction had to be reversed because the trial court erred in failing to instruct the jury on the law of entrapment by estoppel. The defendant asked his Standards of Conduct Counselor to counsel him about the transactions in which he was engaged. Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that official. This defense applies even in cases of strict liability, because entrapment does not negate the intent element of an offense, it relies on the principle of fairness.