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F 4.006a
Equitable Estoppel/Entrapment by Estoppel
If, in reasonable reliance upon an official statement of a public officer, defendant had a bona fide belief that the conduct charged in this prosecution was not unlawful then you may not find [him] [her] guilty of the charged offense.
Points and Authorities
“Mistaken reliance upon government officials can be a defense to be considered by the trier of fact. [Citations].” (People v. Sapse (80) 104 CA3d Supp 1, 13 [163 CR 920]; see also People v. Snyder (82) 32 C3d 590, 595 [186 CR 485]; U.S. v. Abcasis (2nd Cir. 1995) 45 F3d 39.; U.S. v. Lansing (9th Cir. 1970) 424 F2d 225, 227 [reasonable reliance upon misleading information furnished by the government is a defense to a criminal charge]; Rucker & Overland,California Criminal Forms & Instructions, § 40.36.)
Entrapment By Estoppel. “Entrapment by estoppel is the unintentional entrapment by an official who mistakenly misleads a person into a violation of the law.” (United States v. Ramirez-Valencia (9th Cir. 2000) 202 F3d 1106, 1109.) It derives from the Due Process Clause of the Constitution, which prohibits convictions based on misleading actions by government officials. (United States v. Tallmadge (9th Cir. 1987) 829 F2d 767, 773 [citing and discussing Cox v. Louisiana (65) 379 US 559 [13 LEd2d 487; 85 SCt 476], and Raley v. Ohio (59) 360 US 423 [3 LEd2d 1344; 79 SCt 1257]].) Entrapment by estoppel is also referred to as “official misleading.” (E.g., Tallmadge, 829 F2d at 774 [stating that the court has previously “applied the defense of official misleading”]; United States v. Timmins (9th Cir. 1972) 464 F2d 385, 386-87 [discussing defense of “unconscionably misleading conduct”); United States v. Lansing (9th Cir. 1970) 424 F2d 225, 227 [referring to entrapment by estoppel as the “misleading government conduct defense”].)
In order to establish entrapment by estoppel, a defendant must show that (1) “an authorized government official,” “empowered to render the claimed erroneous advice,” (United States v. Brebner (9th Cir. 1991) 951 F2d 1017, 1024, 1027), (2) “who has been made aware of all the relevant historical facts,” (Tallmadge, 829 F2d at 774), (3) “affirmatively told him the proscribed conduct was permissible,” (Ramirez-Valencia, 202 F3d at 1109), (4) that “he relied on the false information,” (Tallmadge, 829 F2d at 774), and (5) “that his reliance was reasonable.” (Id.) As to this last element, the Ninth Circuit has stated that “[a] defendant’s reliance is reasonable if ‘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.'” (Ramirez-Valencia, 202 F3d at 1109 [quoting United States v. Lansing (9th Cir. 1970) 424 F2d 225, 227].)
A defendant has the burden of proving entrapment by estoppel. (See Ramirez-Valencia, 202 F3d at 1109 (9th Cir. 2000) (per curiam) [the defendant “must show that the government affirmatively told him the proscribed conduct was permissible”] (emphasis added); Tallmadge, 829 F2d at 774 [“The defendant must show that he relied on the false information and that his reliance was reasonable.”] (emphasis added); see also United States v. Benning (8th Cir. 2001) 248 F3d 772, 775 [stating that the defendant bears the burden of proof in asserting the affirmative defense of entrapment by estoppel]; United States v. Abcasis (2nd Cir. 1995) 45 F3d 39, 44 [same]; see generally Gilmore v. Taylor(93) 508 US 333, 341 [124 LEd2d 306; 113 SCt 2112] [“States . . . may place on defendants the burden of proving affirmative defenses.”].)
United States v. Batterjee (9th Cir. 2004) 361 F3d 1210 held that advice from federal firearms licensee (gun shop) that a non-immigrant alien (foreign student) could buy gun and ammunition established defense of entrapment by estoppel. Additionally, the federal form that the defendant filled out had not been amended to reflect changes in the law prohibiting non-immigrants from possessing weapons.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES
Other cases which have recognized “equitable estoppel” as a valid defense to certain types of criminal charges (even though the defense was unavailable or otherwise inapplicable in the particular case) include People v. Gonda(82) 138 CA3d 774, 780, fn 3 [188 CR 295] and People v. Cappuccio, Inc. (88) 204 CA3d 750, 765 [251 CR 657].
[See Article Bank # A-19 for an updated version of Charles M. Sevilla’s article, “The Defense of Authorization (Or, “But You Said I Could”),” (Revised 2000).]
NOTE: The California Supreme Court has not extended the defense of entrapment by estoppel to public officials who seek to defend conflict of interest accusations by claiming reliance on the advice of public attorneys charged with counseling them and advocating on their behalf. According to the Court, recognizing entrapment by estoppel in such circumstances is antithetical to the strong public policy of strict enforcement of conflict of interest statutes and the attendant personal responsibility demanded of our officials. (People v. Chacon (2007) 40 C4th 558, 570-571.)
F 4.006b Inconsistent Prosecution Theories.
“[F]undamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where . . . the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained. In short, in the absence of a good faith justification, “[c]ausing two defendants to be sentenced to death by presenting inconsistent arguments in separate proceedings … undermines the fairness of the judicial process and may precipitate inappropriate results.’ [Citation.]” (In re Sakarias (2005) 35 C4th 140, 155-56; see also Thompson v. Calderon (9th Cir. 1997) 120 F3d 1045.)
“Because it undermines the reliability of the convictions or sentences, the prosecution’s use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system.” (Sakarias, 35 C4th at 159.) A criminal prosecutor’s function is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial. (United States v. Kattar (1st Cir. 1988) 840 F2d 118, 127.) His or her goal must be “not simply to obtain a conviction, but to obtain a fair conviction.” (Brown v. Borg (9th Cir. 1991) 951 F2d 1011, 1015, italics omitted.) Although the prosecutor must prosecute with earnestness and vigor and may strike hard blows, he is not at liberty to strike foul ones. (Smith v. Groose (8th Cir. 2000) 205 F3d 1045, 1049, quoting Berger v. United States (1935) 295 US 78, 88 [79 LEd 1314; 55 SCt 629]; see also ABA Model Code Prof. Responsibility, EC 7-13 [The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict].)
