Article Bank # A-19
[Date: March, 2000]
NOTE: The text of the footnotes appear at the end of the document.
THE DEFENSE OF AUTHORIZATION
(OR, “BUT YOU SAID I COULD”)
CHARLES M. SEVILLA
CLEARY & SEVILLA
1010 SECOND AVE. SUITE 1825
SAN DIEGO, CA. 92101-4902
(619) 232 2222
© 2000 All Rights Reserved.
TABLE OF CONTENTS
I. THE DEFENSE: WHAT IT IS NOT
A. The No Mens Rea Defenses
1. Good Faith Belief
2. Reliance on Expert Advice
3. Mistake of Law or Fact
E. Collateral Estoppel
F. Discriminatory Enforcement
G. Supervisory Authority/Outrageous Government Misconduct
1 I THE DEFENSE OF AUTHORIZATION: WHAT IT IS
B. The Federal Cases
C. California Cases
III. PRACTICAL NOTES ON EQUITABLE ESTOPPEL
B. F.R.CR.P. 12.3
D. DUTY OF GOVERNMENT TO FOLLOW ITS OWN REGULATIONS
E. SOME EXAMPLES OF THE USE OF THE DEFENSE
THE DEFENSE OF AUTHORIZATION
Slowly, yet steadily emerging from the primordial ooze of criminal defenses is that multi-named defense of: authorization, or “equitable estoppel,” or “the defense of public authority,” or the “defense of apparent authority.” Whatever the moniker, this defense, grounded in principles of due process fairness and notice, states simply that the government cannot be heard to prosecute a citizen-accused for an act it explicitly, or implicitly, said was permissible. It is as old a defense as a child’s answer to a parental accusation of taking money out of mother’s purse. Just as mom is about to punish the little squealer, the brat screams out the ancient, formidable excuse to put a halt to mom’s right cross to the chops: “But Daddy told me I could!”
As will be demonstrated, the defense of authorization has many applications to more complicated situations. Just ask Ollie North. (United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990).
In a nutshell, the elements of equitable estoppel are: (1) Permission to the defendant by someone or something in authority (e.g., officials, statutes, case decisions, administrative regulations, or other grants of permission); and (2) the defendant reasonably relied upon the representation in doing an act which is not so obviously illegal that an untrained orangutan, under similar circumstances, would think it proper to do. This prong is called, “the law of the jungle.”
You are right if you are thinking, “I thought they eliminated this general defense (“I vas only followink orders!) at Nuremberg? Not so. Nuremberg principles are limited to their context in history — powerful victorious governments, appointing themselves as both prosecution and jury, making up the rules and interpreting them ex post facto (as if they were natural law) to pound into legal submission a sickeningly-depraved defeated group of sadists.
Although the above reads like the description of the daily activity found in any modern day federal courtroom, rest assured Nuremberg law has no supremacy in an American courtroom. (United States v. Aguilar, 871 F.2d 1436, 1454 (9th Cir. 1989)(Congress may legislate contrary to the limits posed by international law).
Additionally, if you are thinking that this defense will be nullified by the prosecutor’s intoning, “Ignorantia legis non excusat,” have no fear. This is not a defense for the citizen who is acting in ignorance of the law, but rather one of official misdirection of the poor citizen-accused.
What follows is divided into three sections. The first compares the defense of equitable estoppel to its related kindred spirits in the defense field. The second section canvasses the major cases which have applied the defense of equitable estoppel. The third provides some practical tips on its use.
I. AUTHORIZATION (EQUITABLE ESTOPPEL): WHAT IT’S NOT
The defense of equitable estoppel is related in specie to several other defenses well known to defense attorneys. The first part of this paper is devoted to showing the differences between equitable estoppel and its first cousin relatives in the defense armory. This study is meant to aid in defining equitable estoppel by showing what it is not, and also to make sure that you have the ammunition to persuade the courts of the differences. The distinctions are important for purposes of discovery, motions to dismiss, motions for judgment of acquittal and instructions to the jury. The defenses discussed below can be — and should be when proper — run concurrent with that of equitable estoppel.
I.A. The No Mens Rea Defenses
These defenses are also known as “The Missing Element of the Offense Defenses.” Equitable estoppel will always defeat the mental element of a charged crime because the defendant has reasonably relied on a representation from authority to do that for which he or she is now being prosecuted. But this does not mean all of the other conventional (lack of) mens rea defenses would not be available to run with the equitable estoppel defense. They are quite compatible to assert with equitable estoppel. Such as:
1. Good Faith Belief. This defense says that the defendant should not be convicted because he did not have the required intent. He did not have criminal intent because he believed what he was doing was proper. Thus, for example, in United States v. Murdock (1933) 290 U.S. 389, the court held that a defendant could not be convicted of a criminal tax charge if he acted in a good faith belief that his conduct was lawful. In People v. Stewart (1976) 16 Cal.3d 133, a businessman stated he believed he had authority to write personal checks on his company account. The court reversed his embezzlement conviction in part because he should have been given a jury instruction on this defense — that a good faith belief in the authority to use the property eliminates the intent necessary to embezzle. See also to the same effect People v. Louie (1984) 158 Cal.App.3d Supp. 28.
In People v. Lucero (1988) 203 Cal.App.3d 1011, a drug defendant was held to be entitled to a jury instruction stating that if he believed (as he testified) that he was “working off a beef” for a drug agent by trying to “make” a case against others, he was acting in good faith and would not have formed the specific intent to commit the drug distribution offense.
Lucero is a case where not only the good faith defense was available, but equitable estoppel could have been trotted out as well as a separate defense to the charge. The jury could have been instructed that if they believed the defendant’s testimony that a government agent authorized him to “make” a case and that he relied upon the representation, he should be then acquitted under estoppel principles. The latter principles would be explained in language even a state court judge could understand: “If the government tells a person to do something, it cannot latter prosecute him for doing it.” [Footnote 1] See also People v. Costa (1991) 1 Cal.App.4th 1201, 1208-1210 (defendant unsuccessfully argued that the mistake of fact defense applied because he believed a person was acting as an agent of the police when he discussed the drug manufacturing process with him; in fact, person was not an informant and further, there is no law that allows an informant to immunize others from liability).
Good faith instructions would also be given focusing on the intent element of the charges. Obviously, there need not be a representation by anyone for the defendant to reasonably rely on to have a good faith defense. The defendant can assert a good faith belief in his conduct just because he has it. The equitable estoppel defense depends on some representation by authority for the defendant to rely on. The practical effect of a successful equitable estoppel defense is that it can also generate a good faith defense, but a good faith defense will not necessarily generate a defense of equitable estoppel.
In U.S. v. Sakakhom, ___ F.3d ___ (9th Cir. July 27, 1999), the court held that good faith instructions were sufficient to cover the issue of reliance on public authority. The defense was based upon testimony by the defendant’s daughter that the defendant and the daughter were told by a clerk at city hall that they did not need to register their non-profit corporation with the Department of Insurance. The trial court had refused an instruction on reliance on public authority.
2. Reliance on Expert Advice. This defense is closely related to that of good faith. It has long been the law that persons who rely on experts for such matters as the preparation of documents (e.g., taxes) are entitled to instructions which indicate to the jury that reliance on expert advice is a defense to a charge of filing a false declaration.
In a leading case, Bursten v. United States, 395 F.2d 676 (5th Cir. 1968), the defendant was convicted of tax evasion. He had been charged with receiving over $150,000 of income when he in fact reported no income for the reporting period. The trial court refused to give a requested instruction which read as follows:
If you find that the defendant had discussed the matter with competent tax counsel and that the tax return was prepared pursuant to that advice, then you must find that the defendant did not willfully file a false return or make a false statement, and you should bring in a verdict of not guilty.
The Court of Appeal reversed the conviction for failure to give the above instruction. Accord, United States v. Miller, 658 F.2d 235, 237 (4th Cir. 1981); United States v. Head, 641 F.2d 171 (4th Cir. 1981); United States v. Mitchell, 495 F.2d 285, 288 (4th Cir. 1974); United States v. Pechenik, 236 F.2d 844 (3rd Cir. 1956); see also United States v. Boyle, 105 S.Ct. 687 (1985), 83 L.Ed.2d 622, 630-631; and see People v. Smith, 155 Cal.App.3d 1103, 1172 (1984). [Footnote 2]
As other examples of good instructions in this area, see the advice of expert instructions given in United States v. Poludniak (8th Cir. 1981) 657 F.2d 948, 958-59, and United States v. Vannelli (8th Cir. 1979) 595 F.2d 402, 404-05.
The differences between equitable estoppel and expert reliance are that with the former, the reliance must be on someone or something in a position of governmental authority. Not so with expert reliance. Also, the reliance in equitable estoppel goes to the estoppel defense; the reliance in expert advice cases goes to defeat the intent element of the crime charged.
3. Mistake of Law or Fact. The Model Penal Code, section 2.04(3)(b) embodies the defense of equitable estoppel as a mistake of law doctrine. The Model Penal Code statement of the defense restricts reliance to statutes or the like, judicial decisions or opinions, administrative orders or grants permission, or official interpretations by public officers charged with the responsibility for interpretation, administration or enforcement of the law in question.
Two of the more interesting cases noted by the Model Penal Code stem from the break-in of Daniel Ellsberg’s psychiatrist’s office. The “foot soldiers” who were prosecuted for the black bag job relied on the defense that a White House employee, Howard Hunt, told them the job needed to be done to obtain information about a “traitor” passing information to the Soviet Embassy. They said they believed that Hunt, a White House player, had the authority to authorize the burglary. Their requests for instructions on this “mistake” defense were refused by the trial court and they were convicted. In United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976), in a very divided opinion, the appellate court majority reversed holding the instructions should have been given since they would negative the specific intent required in the charged offense (18 U.S.C. § 241).
Not so fortunate was key White House official John Ehrlichman. In United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976), the famed Watergate figure did not do as well as the foot-soldier defendants in Barker. His similar defense at trial relied upon a theory of implied presidential authorization, but foundered because he made no actual claim that he had received specific authorization from the President.
In United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990) [Footnote 3], North was charged with destroying government documents; his primary defense was that his superiors, including President Ronald Reagan, authorized him to take such actions and that this authorization negated criminal intent. Under Barker, he requested an instruction on estoppel (there called the defense of “authorization”). [Footnote 4] The trial court refused it and this refusal was upheld on appeal. In so ruling, the North court found itself not bound by Barker because there was not “any coherent principle … from the Barker case because the reasoning of Judge Merhige’s opinion does no mesh with its outcome.” (Id. at 881). While not debating the point of the viability of such a defense (Id. at fn 10), the court stated that in “the absence of clear and comprehensible Circuit authority that we must do so, we refuse to hold that following orders, without more, can transform an illegal act into a legal one.” (Ibid.)
However, as to one of the destruction of documents counts, the trial court misinstructed to the jury on “authorization” so as to preclude it from considering such evidence as it impacted on North’s belief that his conduct was lawful. That count was ordered reversed.
Mistake of law or fact defenses, in their more classic formulations, apply when the mistake negatives the intent to do the crime. Many state statutes make mistake of fact a defense (e.g., Calif. Penal Code section 26, subdiv. 3). When a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them.
In People v. Scott (1983) 146 Cal.App.3d 823, the appellate court reversed a conviction for insufficient proof of criminal intent based on the grounds of involuntary intoxication (drinking spiked punch at a party) which caused the defendant to act irrationally in stealing a car (believing himself to be a CIA or FBI agent on a mission to save the President). This was a classic application of the mistake of fact defense.
While mistake of law can sometimes be a defense, the courts have thoroughly rejected the notion that the defendant’s subjective (and unreasonable) interpretation of a statute may provide a defense. Thus, in United States v. Aguilar, 871 F.2d 1436 (9th Cir. 1989), the court rejected the defendants’ arguments that they were entitled to a mistake of law defense based upon their interpretation of the Immigration laws. The defendants contended that they harbored or transported aliens who were bona fide political refugees entitled to asylum under the Refugee Act of 1980. The court rejected the defense as not “objectively reasonable” under the facts presented and upheld the trial court’s order excluding all evidence to support that theory (at 1449).
B. Consent. As strange as might it seem, there is a correlation between equitable estoppel and consent in that in both defenses depend on a representation which the defendant reasonably deems a permission to do the act. The difference is that with the defense of equitable estoppel, the grantor of the permission must be someone in official authority. Also, unlike the defense of consent (which can be asserted against crimes malum in se such as rape, see People v. Mayberry (1975) 15 Cal.3d 143, 153), the defense of equitable estoppel cannot be asserted against such crimes because no one in officialdom can give apparent permission to commit such crimes. See “Law of the jungle” explained supra.
C. Entrapment. The California standard of objective entrapment law established in People v. Barraza, 23 Cal.3d 675 (1979), sets forth a form of equitable estoppel in that the Government is precluded from convicting based upon its offensive behavior in luring the otherwise law-abiding citizen into criminal behavior. The focus here is on the police behavior which lures a person into committing a criminal offense. In the equitable estoppel defense, the focus is not only on official grants of authority to do an ostensibly legal act (i.e., governmental permission or permissive conduct) but also reasonable reliance by the defendant). Of course, under the federal Sorrels-Sherman [Footnote 5] subjective standard (see e.g., United States v. Citro (9th Cir. 1988) 842 F.2d 1149, 1152), the entrapment test looks not only to the nature of the government inducement, but also to the subjective predisposition of the defendant to do the criminal act. The inducement is still the official luring of the defendant to do the criminal act; the premise of the transaction is that a criminal act is to take place; there is not any semblance of a grant of official authority to do a legal act. If there is such a grant, then the equitable estoppel defense should be explored.
In Raley v. Ohio, 360 U.S. 423, 425-26 (1959), the Supreme Court ruled that when the defendants were assured of their right to remain silent by a legislative committee and then contempted for asserting it, this was “an indefensible sort of entrapment by the State” and too much of an outrage under the “untrained orangutan” test cited supra. The case is not a pure entrapment case but rather is one of the embryonic equitable estoppel cases meekly crawling into recognition from the primitive juristic sludge (just as the Warren Court was getting warmed up to spawn a host of fledgling due process defenses during the 1960’s — for subsequent dismemberment by the courts which followed).
D. Necessity. Here, the defendant commits a criminal act not because he is lured to believe it is permissible, but knowing that it is unlawful, he or she does it anyway because it is necessary to do in order to avoid the greater evil which would occur if it were not done. Thus, the prisoner who non-violently escapes to avoid threats of death or great bodily harm may do so under certain conditions (see Bailey v. United States, 444 U.S. 394 (1980); People v. Lovercamp, 43 Cal.App.3d 823 (1974), because of the greater evil to be avoided by staying in prison. This defense can be used for crimes malum in se like kidnapping under the appropriate circumstances such as saving a child from the clutches of a bizarre cult (see People v. Patrick (1981) 126 Cal.App.3d 952, 960-62). Necessity does not defeat an element of the offense, but rather is a public policy decision not to punish under these unique circumstances. [Footnote 6] See People v. Beach (1987) 194 Cal.App.3d 955, 972 – 973 [240 Cal. Rptr. 50], rejecting necessity instruction in child stealing case where court proceedings were pending.
E. Collateral Estoppel. This defense goes to the matter of issue preclusion based on a prior final judgment between the parties (or in parties privity) where the same issue was resolved. Equitable estoppel does not involve prior adjudications between the same parties, although a prior adjudication may be part of an equitable estoppel defense (See United States v. Talmadge, infra).
In California, the leading collateral estoppel cases are: People v. Sims, 32 Cal.3d 468 (1982) (adverse ruling by administrative agency binds criminal court as to that issue); Buttimer v. Alexis, 146 Cal.App.3d 754 (1983) (DMV cannot ignore illegal arrest finding by court); Lockwood v. Sup.Ct., 160 Cal.App.3d 667 (1984) (findings in dependency hearing preclude prosecution in criminal proceeding). However, the California Supreme Court narrowed the rule substantially in Lucido v. Superior Court (1990) 51 Cal.3d 335, holding that a prosecution for indecent exposure was not barred under the doctrine by a determination at an earlier probation revocation hearing that the People had not produced clear and convincing evidence to show the defendant had committed the crime. The court ruled that although the elements of collateral estoppel were present, as a matter of public policy it would not allow the doctrine to undermine the public interest in having guilt or innocence determined at a criminal trial. See also People v. Percifull (1992) 9 Cal.App.4th 1457 (allowing prosecution for child abuse despite no abuse finding in a dependency hearing).
In People v. Taylor (1974) 12 Cal.3d 686, the court precluded a murder prosecution by applying collateral estoppel principles. There, Taylor was the wheelman to a robbery. Two of his crime partners went into the store and only one came out alive. The other was shot and killed. The surviving partner who went into the store was tried first and acquitted of the murder of his crime partner. Taylor, in a separate trial, was convicted of murder on a theory of vicarious liability. The Supreme Court reversed hold that the prosecution was collaterally estopped from prosecuting Taylor after the crime partner’s acquittal based upon the identical prosecution legal theory of liability. [Footnote 7]
The doctrines of res judicata or collateral estoppel are well developed (Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 205). [Footnote 8] The use of the doctrine against the government often has obstacles of immunity [Footnote 9] to overcome, to say nothing of privity and most important, a prior judicial or administrative determination adverse to the prosecution.
F. Discriminatory Enforcement. These claims are grounded in equal protection. The defendant is being singled out for prosecution among an identically situated larger mass of persons on an invidious basis. Equitable estoppel is grounded in due process concepts of notice and detrimental reliance. Both defenses often fly together because non-enforcement of the law can create an apparent official permission to do certain acts.
The elements of a federal or state [Footnote 10] discriminatory prosecution claim are that the defendant has been deliberately singled out for prosecution based upon an invidious criterion. A defendant has a right to the dismissal of his case if he can prove that he was selected out of a pool of similarly situated persons who were not prosecuted and that the reason for his prosecution is arbitrary (United States v. Steele, 461 F.2d 1148 (9th Cir. 1972). See Wayte v. United States, 105 S.Ct. 1524 (1985) (bad news for draft resister who was singled out for prosecution based on his highly visible protest against the draft).
It is the defendant’s burden to prove discriminatory prosecution and it must be shown by a preponderance of evidence. A motion for discovery needs a minimal showing. United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974) [hearing on motion required “when enough facts are alleged to take the question past the frivolous stage” (emphasis added)]; Attorney General of the United States v. Irish People, Inc., 684 F.2d 928, 932, n. 8 (D.C. Cir. 1982) [“. . . we find further at this time that the defendant in fact need only make a colorable showing of each prong of the (selective prosecution) defense in order to be entitled to discovery. [Footnote 11]
This defense is quite compatible with that of equitable estoppel and one should look closely to see if both can be run together pre-trial (only equitable estoppel would be a jury issue). The well-developed discovery rules related to selective prosecution should also be used in pursuit of equitable estoppel.
G. Supervisory Authority/Outrageous Government Misconduct. The due process doctrine of outrageous prosecution misconduct is used to bar prosecution based upon the improper conduct of the government. It is to be distinguished from dismissals based upon the court’s inherent supervisory power (see distinction noted in United States v. Simpson, 813 F.2d 1462, n. 2 (9th Cir. 1987)).
In United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 1978 (1983), the court outlined the rationale behind its supervisory authority: to implement a remedy for a recognized right; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury; and as a remedy designed to deter illegal conduct. [Footnote 12] See United States v. Samango, 607 F.2d 877 (9th Cir. 1979).
Due process of law requires that governmental officials no less than private citizens follow the rules of law. See Yellin v. United States, 374 U.S. 109 (1963), reversing a criminal contempt of a person who refused to testify before a Congressional subcommittee which did not follow its own rules by permitting the witness to testify in executive session. This is one of the forerunners of the outrageous prosecution defense.
“[O]utrageous prosecution misconduct,” when found would, according to then-Justice Rehnquist in United States v. Russell, 411 U.S. 423, 431-2 (1973), “absolutely bar the Government from invoking judicial processes.” The sanction would be dismissal of the indictment prior to trial.
In Greene v. United States, 454 F.2d 783 (9th Cir. 1971), the court dismissed a cased where (unlike here) the defendants conceived of the crime and were predisposed to commit it (id. at 786). The case was ordered dismissed because the government agent made the initial contact; the negotiations lasted at least two and one-half years; the agent was involved in the bootlegging activities; he provided pressure to have the defendants go into production and to sustain the continued criminal conduct; finally, the government was the only customer of the illegal operation it had helped to create. In summarizing the effect of these factors, the court concluded:
We do not believe the Government may involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators. . . . [W]hen the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative. (id. at 787).
In United States v. Bogart, 783 F.2d 1428, 1436-37 (9th Cir. 1986), the court reviewed several of the misconduct cases which were successfully presented. Where the Government suggested the crime which otherwise would not have occurred (as opposed to merely joining in a long line of criminal cohorts of the defendant in cases where the conduct was of a continuing nature) and extensively involved itself in the conduct, the cases were dismissed. [Footnote 13]
This defense often flies with entrapment. The difficulty of flying both this defense and entrapment with equitable estoppel is that in the latter defense, the defendant has to believe he has proper authority to do what he is doing whereas in the typical entrapment case, the defendant believes he is doing something criminal, but later argues that he was wrongly lured into doing it.
It bears repeating that the defense of authorization is usually compatible with the other more common defenses cited above. But even if completely inconsistent, if tactically appropriate to the case, there is no problem asserting completely inconsistent defenses. [Footnote 14] Now that we have briefly inventoried the defense arsenal of defenses which are related to that of equitable estoppel, it is time to take a close look at the defense itself.
II. THE DEFENSE OF EQUITABLE ESTOPPEL: WHAT IT IS
A. Introduction. The doctrine of “equitable estoppel” is a defense well-known in the civil area, but less so in the criminal context. It is based on the simple, common-sense rationale that if the Government or its agents signal the propriety or non-criminal nature of the conduct engaged in by the defendant, another branch of government (law enforcement) cannot later come along and charge that defendant with criminal charges. See “Applying Estoppel Principles in Criminal Cases,” 78 Yale L.J. 1046 (1969).
For example, a state law makes it illegal for demonstrators to demonstrate “near” a courthouse. At trial, defendants testify that while they were marching in a certain area of the city they were told that it would be permissible to demonstrate in the courthouse area by the highest police officials in the city. The Supreme Court held that law enforcement would be precluded from enforcing such a statute under these circumstances. Cox v. Louisiana (1965) 379 U.S. 559. In essence, the court said if the Government lures a citizen into conduct which is otherwise proscribed, the Government later cannot be heard to argue that the citizen criminally violated the relevant criminal statute.
B. The Federal Cases. An excellent example of the application of this defense came in United States v. Tallmadge (9th Cir. 1987) 829 F.2d 767. There, a defendant was prosecuted for the possession of a firearm by a person who had been previously convicted of a felony. At the time the defendant went to purchase his gun, he was told by a store clerk that because his prior conviction had been reduced to a misdemeanor, it would be perfectly alright for him to buy six rifles. The appellate court reversed Tallmadge’s subsequent conviction holding that since he relied on the inaccurate information provided by the store clerk (a federally licensed firearm dealer) and because his reliance was reasonable, he cannot be guilty of a criminal offense. It would violate federal due process of law to permit a Government agent to mislead one into conduct he believes is lawful, yet which the Government subsequently deems illegal.
The most fertile field for the use of the equitable estoppel defenses is with regulatory crimes. It will not be permitted for crimes that are inherently evil (malum in se) since no one needs to be told these acts are criminal. [Footnote 15] Rather, it will be in the area of regulatory violations that the defense may have most applicability (malum prohibitum). Thus, those persons charged with offenses stemming from long-term dealing with Government agencies, e.g., a business accused of violating a city ordinance — may look to the relevance of this defense.
For example, I defended a case in San Diego in which the Lacey Act (16 U.S.C. §3372) was used to prosecute commercial crab fisherman for catching crab just south of the border and bringing them into U.S. waters. The crime is a felony and the defendants were indicted for every trip south of the border. Investigation revealed that the Government seldom if ever prosecuted crabbers for such violations despite actual knowledge of the crab fisherman conducting their business in such a fashion.
The argument ran that the policy of knowing non-enforcement of the Lacey Act by the Government affirmatively misled these fisherman into believing that their conduct was non-criminal. After pre-trial skirmishing and discovery hearings, the case settled prior to trial so that application of the defense was not fully tested, but strong legal support was found in United States v. Pennsylvania Industrial Chemical Corporation, 411 U.S. 655 (1973).
There, the corporation was criminally charged for violating an act which prohibited the discharge of refuse into navigable waters. The defendant corporation admitted that its industrial refuse had been discharged into a navigable river, and the Government admitted that the discharge was not of such a nature as to impede navigation. The corporation argued that the Government’s consistently construing the Act in the past as limited to those deposits which would impede navigation affirmatively misled it into believing that its deposits were non-criminal because they did not impede navigation. The lower court rejected the availability of this defense. The United States Supreme Court, seven justices agreeing, deemed it available. The Court upheld the ability of the corporation to defend itself by presenting evidence in support of its claim that it had been affirmatively misled into believing that its discharges into the river were not a violation of the statute.
Other fact situations where the defense has been cited with approval include United States v. Albertini (9th Cir. 1987) 830 F.2d 985. Here, a protestor was convicted for illegally distributing political leaflets outside a naval base. On his first appeal, the appellate court found his conduct protected by the First Amendment and reversed his conviction. However, the Government took the case to the United States Supreme Court which overturned the appellate court. In the interim, Albertini went back to peacefully distributing his leaflets armed with a copy of the appellate court opinion which vindicated his conduct. He was arrested again. Unfortunately, more bad news came when the United States Supreme Court reversed the appellate opinion.
When prosecuted for his subsequent arrest, Albertini claimed that he was acting reasonably by relying on the appellate court statement that his conduct was protected by the First Amendment. The appellate court reversed Albertini’s new conviction based upon the doctrine of equitable estoppel, holding that a citizen must be able to reasonably rely upon an official statement of law. The court cited to section 2.04 of the Model Penal Code which sets forth the elements of reasonable reliance upon an official statement of law (American Law Institute Model Penal Code section 2.04(3)(b) (1985)). Note that Albertini was disapproved to the extent that it conflicted with U.S. v. Rodgers, 466 U.S. 475, 484 (1984), in which the Supreme Court held that a change in the law is foreseeable when circu8its are split on the proper construction of a statute. This means that judicial expansion of a law can be made retroactive when foreseeable. U.S. v. Qualls, __ F.3d __ (9th Cir. en banc 1999) (no due process problem in holding retroactive (application of rule retroactively to uphold a conviction for possession of firearms by an ex-felon who had rights restored as to long guns, but not pistols – applies Supreme Court “all other nothing” rule from Caron v. U.S., 118 S.Ct. 2007, to this case despite its previous decision to the contrary.)
In United States v. Woodley, 9 F.3d 774 (9th Cir. 1993) the defendant was convicted of fraud and tax offense based on his representation of a former client who formed a trust that rented to a nursing home. Estoppel instructions were refused and the conviction was affirmed on appeal. The defendant’s reliance was on governmental inaction to support the defense. “Reliance on governmental inaction is insufficient to establish [entrapment by estoppel] .” Id. at 779.
In United States v. Abcasis, 45 F.3d 39 (2nd Cir. 1995), defendants Ralph, Simon and Rebecca Abcasis were convicted of conspiring, and attempting to import heroin, and conspiring to possess heroin with the intent to distribute. At trial, the court denied them a requested jury instruction on equitable estoppel.
In 1984, six years before the acts which are the subject of this case, Ralph, the son of Simon and Rebecca Abcasis was arrested for attempting to sell cocaine to an undercover officer. As a result, Simon became an informant in exchange for leniency for his son, Ralph. For the next several years, until 1990, the they worked as police informants for “Group 86” of the New York Drug Enforcement Task Force. (Id. at 40.) Both Ralph and Simon were terminated as informants on April 2, 1990. Soon after his termination as an informant, Ralph met with Joseph Danneal, a confidential informant working with “Group 21” of the D.E.A. There was a conflict between the government agents and the defendants on whether there had been communications since the “termination.” There was evidence that the defendants had spoken with the “Group 86” agents, and informed them about their contacts with Danneal and the heroin importation scheme. (Id. at 42.)
At trial both Ralph and Simon testified that they believed that they were authorized by the D.E.A. to contact with Danneal. The issue on appeal, for which the reversal was granted was the defendants’ requested jury instruction that they should be acquitted if 1) they were actually authorized by the government to engage in the scheme, or 2) reasonably believed that they were authorized by the government to arrange the importation of heroin. Rebecca did not testify, but based her defense on the claim that she was helping her husband and son, whom she believed were authorized by the D.E.A. (Id. at 43.)
The court of appeals concluded that the defense of estoppel can arise in the circumstances testified to by the defendants, if they relied on the good faith belief that they were authorized to do act as they did to aid law enforcement officials. (Id. at 43.) The court took care to mention that “this defense will not support a claim of an open-ended license to commit crimes in the expectation of receiving subsequent authorization… Furthermore. for a defendant’s reliance to be reasonable, the jury must conclude that “‘a person sincerely desirous of obeying the law would have accepted the information as true and would not have been out on notice to make further inquiries.'” (Id. at 44.)
The court further held that the government’s position raised in its brief “reflects a basic misunderstanding of the law of entrapment by estoppel.” The government raised the argument that the defendant’s belief whether or not they were breaking the law was irrelevant , so long as they knew they were importing narcotics. (Id. at 44.) “The defense of entrapment by estoppel does not depend solely on absence of criminal intent. Nor is it limited to the circumstance of actual authorization. It focuses on the conduct of the government leading the defendant to believe reasonably that he was authorized to do the act forbidden by law. The doctrine depends on the unfairness of prosecuting one that has been led by the conduct of government agents to believe his acts were authorized.” (Id. at 44; citations omitted.) The court held that since the defendants had presented a prima facie defense, they were not required to pass a credibility test and therefore their defense should have been presented to the jury. (Id. at 44.) The defendants, in effect were deprived of a “meaningful opportunity to present a complete defense,” and the case was reversed and remanded. (Id. at 45.)
In United States v. Clegg (9th Cir. 1988) 846 F.2d. 1221, the defendant was charged with exporting firearms in violation of federal statutes. Clegg was a teacher at an American school on Pakistan. He claimed that U.S. officials solicited an encouraged his efforts to supply guns to Afghan rebels resisting the Soviet occupation of Afghanistan. Believing the encouragement he received constituted official permission to transport arms, Clegg smuggled them through Pakistan to the rebels. He was arrested in Pakistan and upon his release he returned to the United States where he faced federal charges for exporting firearms.
In defense, he sought to prove that he acted reasonably on the statements of U. S. officials and thus sought discovery to prove his claim. The trial court agreed that some of the material requested, even though classified, was relevant and admissible to his proposed defense. The Government appealed. The Ninth Circuit had to address whether the requested discovery of classified material was relevant to a defense of equitable estoppel. It held that it was.
Thus, a defendant is entitled to discovery of the material necessary to develop the estoppel defense at trial. In many of these cases, discovery from the prosecution, or more likely the Government agency involved, will be the essential foundation for the later use of the defense. Thus, in every equitable estoppel case, one should look to subpoenaing officials on what representations they made to the defendants (or the class of persons to which the defendants belong). To the extent documentary material is conceivably supportive, as it will be in many cases, it too should be subpoenaed.
C. California Cases. Many states have developed cases endorsing the equitable estoppel defense. California appellate criminal [Footnote 16] cases, although few in number, have long noted the defense.
In People v. Ferguson (1933) 134 Cal.App. 41, Ferguson was in the business of putting together real estate trusts. On many occasions he checked with the Office of the Commissioner of Corporations regarding necessary licenses and permits. Ferguson was accused of violating numerous sections of the Corporations Code. At trial, he attempted to introduce evidence that he was advised by the Commissioner himself that the proposed trust did not fall within the jurisdiction of the Corporations Commission. The trial court rejected defendant’s offer of proof and he was convicted.
The Court of Appeal reversed, noting that this violation is malum prohibitum, not malum in se. Decisions by the Corporations Commission are usually final, and if defendant went to “the fountainhead itself” for guidance, and was told that the Corporations Code did not apply, “we cannot believe the law so inexorable as to require the brand of felon upon him for following the advice obtained” (Id. at 53). Upon retrial, the defendant was ordered4 to be allowed to introduce his evidence of official advice.
One can see the correlation between this defense and the ordinary “advice of expert” defense. This expert advice defense is grounded in the concept that if a defendant relies upon an expert as to the propriety of his conduct (e.g., his attorney), then he lacks criminal intent in the action (e.g., People v. Stewart (1976) 16 Cal.3d 133). It may be that both defenses are available as where the defendant’s rely on professional advice which in turn relied on official guidance.
Other California courts have recognized the defense while rejecting it under facts presented. In People v. Sapse (1980) 104 Cal.App.3d.Supp 1, the defendant was convicted of violating two Business and Professions Code Sections: 1) § 2142, which prohibits use of the letters/prefix “Dr.”, “M.D.” or other titles implying a medical degree when the user does not hold a valid certificate; 2) § 2142.10, which prohibits “holding oneself out as a physician” without possessing a valid certificate.
The offenses occurred in 1978. Sapse attempted to introduce evidence that in 1972, an investigator for the State Board of Medical Examiners advised him that he could use the title “Dr.” informally among friends and family, but not on a professional basis. Since the defendant’s actions did not involve treatment of human beings (he saw no patients, prescribed no drugs and was involved solely in the operation of a pharmaceutical company), the investigator recommended that no punitive action be taken by the Board.
The appellate court affirmed the trial court’s decision to prohibit admission of this evidence, stating that while “estoppel” is an available defense against the Government in rare instances, it was unavailable here because the circumstances in 1972 were easily distinguishable from those six years later. In other words, the timing of the alleged governmental misadvice can be critical.
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 (1982) 138 Cal.App.3d 774, 780, n. 3; People v. Cappuccio, Inc. (1988) 204 Cal.App.3d 750, 765; but cf., People v. Snyder (1982) 32 Cal.3d 590, 595, merely noting existence of the defense.
See also Calif. Evidence Code §623. “Misleading Statement or Conduct.”
Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.
III. PRACTICAL NOTES ON THE EQUITABLE ESTOPPEL DEFENSE
Keep in mind that a selective prosecution motion to dismiss will enhance viability of the defense. Equitable estoppel is not an Equal Protection issue so much as based upon due process and fair notice. Equitable estoppel may look like a mens rea defense of good faith and it is, except it is broader than mens rea because it will be available to defend strict liability crimes.
A. DISCOVERY. The cases cited above under selective prosecution should prove very helpful in garnering the necessary information to gather the materials needed to prove this defense. See also United States v. Clegg, supra, an equitable estoppel discovery case; and United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1988), holding that discovery orders extend to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.
B. F.R.CR.P. 12.3 requires Notice of the Defense Based Upon Public Authority pre-trial filed in writing. The defendant must identify the law enforcement agents upon whom he relies and the precise time period of authorization. This, in turn, triggers a reply obligation by the Government within ten days of receipt. The Government may demand in its reply the names of all witnesses supporting this defense; within seven days the defense must respond, but can demand in turn all of the Government witnesses who will oppose the defense. Failure to comply can result in the exclusion of the witnesses’s testimony except for the defendant. See Taylor v. Indiana (1988) 484 U.S. 400, 108 S.Ct. 646 (permitting exclusion of defense witnesses as a sanction for a reciprocal discovery violation).
C. INSTRUCTIONS. “[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor [citation].” Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 887 (1988) (holding a defendant may rely on inconsistent defenses such as entrapment and lack of mens rea, as is true of the tandem assertion of all other defenses).
As with any other defense, where the facts showing the misleading representations by the government are shown (as well as the defendant’s reliance), the defense is there for the proving. One may argue that as a matter of law, the defense should prevail (as where the facts concerning government representations are undisputed) and seek a motion to dismiss or judgment of acquittal. If the facts are in dispute, as will be the most common situation, it should be a jury question, and instructions must be prepared to inform the jury that if they find that the defendant reasonably relied on government representations (either explicit or implicit), they must return a verdict of not guilty.
Obviously, to get instructions, they must be prepared and requested. In United States v. Posey, 864 F.2d 1487, 1493 (9th Cir. 1988), the court rejected an appellate argument that the trial court should have instructed that the defendant could not be convicted if he had relied on an official misstatement of the law. The appeals court ruled no error because the requested instruction merely went to the specific intent to do the crime and that issue was covered by the instructions given on intent (i.e., the instructions which told the jury the defendant was not guilty if he believed his actions were lawful). But the court misidentified the defense. Yes, equitable estoppel necessarily impacts on specific intent to negate it, but it is a separate defense which warrants a finding of acquittal if the official statement is made and the defendant reasonably relies on it. That is why equitable estoppel applies to strict liability crimes where no specific intent defense would be possible. The specific intent instruction issues should not even be reached if the jury accepts the two prongs of official statement and reliance by the defendant.
Another Ninth Circuit case, United States v. Burrows, 36 F.3d 875 (9th Cir. 1994), upheld a judge’s instruction on this defense which included a clause which required the jury to find that the defendant had a reasonable belief that he was working as an informant for a deputy sheriff.
In United States v. Abcasis, 45 F.3d 39 (2nd Cir. 1995), defendants Ralph, Simon and Rebecca Abcasis were convicted of conspiring, and attempting to import heroin, and conspiring to possess heroin with the intent to distribute. At trial, the court denied them the requested jury instruction on the defense of equitable estoppel. In 1984, six years before the acts which were the subject of this criminal charges, Ralph, the son of Simon and Rebecca Abcasis, was arrested for attempting to sell cocaine to an undercover officer. As a result, Simon became an informant in exchange for leniency for his son, Ralph. For the next several years, until 1990, they worked as police informants for “Group 86” of the New York Drug Enforcement Task Force. (Id. at 40.)
The government introduced evidence that both Ralph and Simon were terminated as informants on April 2, 1990. Soon after his termination as an informant, Ralph met with Joseph Danneal, a confidential informant working with “Group 21” of the D.E.A. There was a direct conflict between the government agents and the defendants whether there had been communications since the “termination.” There was evidence that the defendants had spoken with the “Group 86” agents, and informed them about their contacts with Danneal and the heroin importation scheme. (Id. at 42.)
At trial both Ralph and Simon testified that they believed that they were authorized by the D.E.A. to conduct and testified with regard to contact with Group 86 agents. The issue on appeal was the defendants’ requested jury instruction that they should be acquitted if: 1) they were actually authorized by the government to engage in the scheme, or 2) reasonably believed that they were authorized by the government to arrange the importation of heroin. Rebecca did not testify but based her defense on the claim that she was helping her husband and son, whom she believed were authorized by the D.E.A. (Id. at 43.) The court of appeals concluded that the defense of estoppel can arise in the circumstances testified to by the defendants if they relied on the good faith belief that they were authorized to do act as they did to aid law enforcement officials. (Id. at 43.) The court cautioned that “this defense will not support a claim of an open-ended license to commit crimes in the expectation of receiving subsequent authorization….” Furthermore, for a defendant’s reliance to be reasonable, the jury must conclude that “‘a person sincerely desirous of obeying the law would have accepted the information as true and would not have been out on notice to make further inquiries.'” (Id. at 44.)
The court further held that the government’s position raised in its brief “reflects a basic misunderstanding of the law of entrapment by estoppel.” The government raised the argument that the defendant’s belief whether or not they were breaking the law was irrelevant so long as they knew they were importing narcotics. (Id. at 44.) “The defense of entrapment by estoppel does not depend solely on absence of criminal intent. Nor is it limited to the circumstance of actual authorization. It focusses on the conduct of the government leading the defendant to believe reasonably that he was authorized to do the act forbidden by law. The doctrine depends on the unfairness of prosecuting one that has been led by the conduct of government agents to believe his acts were authorized.” (Id. at 44; citations omitted.) The court held that since the defendants had presented a prima facie defense, they were not required to pass a credibility test and therefore their defense should have been presented to the jury. (Id. at 44.) The defendants, in effect were deprived of a “meaningful opportunity to present a complete defense,” and the case was reversed and remanded. (Id. at 45.)
D. DUTY OF GOVERNMENT TO FOLLOW ITS OWN REGULATIONS. Since the defense of equitable estoppel often will arise in the course of businesses relying on emanations stemming from administrative orders, edicts and informal rulings, it may be helpful to cite here the many cases noting that Government is duty-bound to obey these regulatory pronouncements.
The proposition that the United States agencies and personnel implementing or enforcing the regulations are bound to obey them may be found in a number of differing legal contexts. As a recent Ninth Circuit case put it: “The [Parole] Commission, like other agencies, is thus bound by its own regulations so long as they remain in force. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S.Ct. 499, 503, 98 L.Ed.2d 681 (1954).” Wallace v. Christensen, 802 F.2d. 1539, 1552 n. 8 (9th Cir. 1986). [Footnote 17]
“A court’s duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law.” (United States v. Caceres, 440 U.S. 741, 742 (1979). Caceres cites to several cases upholding the doctrine that the Government may not violate the law and that the law will be enforced against the Government. It cites — at page 742, n. 12 — to Justice Brandeis’ opinion in a deportation case as an example: “It may be assumed that one under investigation with a view to deportation is legally entitled to insist upon the observance of rules promulgated by the Secretary pursuant to law.” United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 (1923). Accord, Bridges v. Wixon, 326 U.S. 135. 152-53 (1945). [Footnote 18]
Keep these cases at the ready when citing to rules issued by an authority as prong one of the estoppel defense. Obviously, if the rules are valid (or even invalid), a citizen can reasonably rely on them in going about his or her daily business. They should be admissible under a variety of theories including admissions under Fed.Rules Evid. 801(d)(2)(D). See United States v. Van Griffen, 874 F.2d 634 (9th Cir. 1989) (Government publication detailing proper procedures to administer lateral gaze nystagmus test constitutes an admission to impeach government witness who testified as to the different manner he conducted the test).
E. SOME EXAMPLES OF THE USE OF EQUITABLE ESTOPPEL. The potential uses of the defense of equitable estoppel are limited by the general prohibitions against its use in most malum in se offenses, and by the necessity that there be reliance by the defendant on an apparent authority. With these limits in mind, this paper closes with some ideas on potential uses for the defense. Hopefully, you got a few ideas in the discussion of the cases where the defense has been successfully argued. As you consider the following examples, keep in mind that the utility of the defense extends to many more situations than are suggested below. Use your imagination.
1. The Court Said it Was Okay (It Wasn’t). In People v. Tanner (1979) 24 Cal.3d 514, 521-22, the trial court dismissed a firearm enhancement in order to give Mr. Tanner probation with local time despite the statute mandating prison under a “use a gun, go to prison” statutory provision. Despite holding the sentencing court’s action illegal (i.e., Tanner should have gone to prison), the court deemed it “unjust” to require him to go to prison, relying on the similar case of United States v. Denson (5th Cir. 1979) 588 F.2d 1112, 1132 (D.C. Cir. 1979). In essence, the court held that even though there was judicial error, there had been detrimental reliance by Tanner making corrective judicial action unjust under the circumstances.
What if the sentencing judge tells the defendant drunk driver that the current conviction could be used as an enhanceable prior for up, but no longer than, five years? Then, the Legislature on 1/1/87 expands the time for use of the prior as an enhancement to seven years (VC 23152). The defendant gets arrested for drunk driving six years after the first offense. He defends by saying, “the judge told me the prior washed out in five years. So I got drunk!” But cf., People v. Sweet (1989) 207 Cal.App.3d 78 (rejecting a due process argument close to this one).
2. The DEA Said It Was Okay (It Wasn’t). (People v. Lucero (1988) 202 Cal.App.3d 1011). Spin offs of this case, discussed supra in the text, are legion. [Footnote 19] A cop tells an arrested drug dealer he can work off his case by making another one. The drug dealer does so but breaks the law in doing it. He defends by saying, “the cops told me it was ok.” Anytime the defendant says he thought he or she was acting at the behest of an authority figure, this defense should be considered. Compare State v. Ragland, 4 Conn. Cir. 424, 233 A.2d 698 (1967) (cop tells driver to drive his car to the police station. Driver cited for driving without a license. Conviction reversed); People v. Donovan, 279 N.Y.S.2d 404, 406 (1967) (cops tells drunk to drive away from area and then arrests her for drunk driving. Reversed).
3. Model Penal Code section 3.07(4)(a). John Q. Citizen is walking down the street and sees a policeman in pitched battle with a civilian. The cop yells for help. Mr. Citizen runs to aid him and they both pummel the civilian into submission. It turns out that the cop was making an illegal arrest and using excessive force. When Mr. Citizen becomes the target of a prosecution along with the cop, he argues equitable estoppel. This defense is specifically authorized by the above section of the Model Penal Code. Section (b) covers the situation where Mr. Citizen comes to the aid of the policeman without a request. Here, John Q. must be operating under a mistake of fact, that is, he must believe in the officer’s lawful authority to make the arrest and use force. Supporting cases may be found in United States v. Barker, 564 F.2d 940. 956 n.2 (D.C. Cir. 1976).
4. The Disturbing the Peace Example. Here, the first cop comes to the door of a home where a loud party is under way and in response to a noise complaint. He tells the owner about the complaint, but the level of sound, while loud, sounds legal to him and he says so. Fifteen minutes later, another officer arrives to declare the noise too loud and issues the complaint. Compare People v. Markowitz, 18 N.Y.2d 953, 223 N.E.2d 572 (vendor told he did not need a license to sell score cards at stadium; his subsequent conviction for selling cards without a permit reversed).
5. It Works Both Ways Example: Estopping the Defendant: In In re Griffin (1967) 67 Cal.2d 343, 346, the defendant was a probation violator who was to appear at a revocation hearing. He sought and was granted a continuance of the revocation hearing to a date that fell after his probationary time expired. At the belated revocation hearing, he raised the issue of the court’s jurisdiction to revoke his now lapsed probation. The trial court — and thereafter, the California Supreme Court — held that a party who “seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction” (at 347). Accord People v. Lang (1989) 49 Cal.3d 991, 996 (not outside the range of competent attorney actions to fail to present mitigating evidence when the defendant adamantly endorses that position, and the invited-error doctrine operates to estop a defendant from claiming ineffective assistance of counsel based on counsel’s acts or omissions in conformance with the defendant’s own requests; People v. Beebe (1989) 216 Cal.App.3d 927 (defendant estopped from voiding plea he now argues as illegal); People v. Padfield (1982) 136 Cal.App.3d 218, 227 (“Having admitted the sufficiency of that evidence by his plea, he cannot now challenge it with a forked tongue on appeal.”). However, the Ninth Circuit has held that the doctrine of judicial estoppel should not be applied to bar a criminal defendant from asserting a habeas claim based on innocence. (Morris v. California (9th Cir. 1992) 945 F.2d 1456, 1459-1460). [Footnote 20]
There are limits to chameleon-like advocacy. U.S. v. Stites, 56 F.3d 1020, 1025-1026 (9th Cir. 1995)(“even if a certain insincerity may accompany the filling of an advocate’s role, nothing in our professional ethics permits an advocate to tell a court one set of facts today and a contradictory set of facts tomorrow; Rissetto v. Plumbers And Steamfitters Local 343, 94 F.3d 597, 603 (9th Cir. 1996).
Also, the courts have made clear that the admission to bail estops a defendant from making a claim that the lapse of probation while a defendant is on appeal means the court loses “jurisdiction” so that the stayed custody and fine provisions disappear simply because the appeal has taken so long to process. (People v. Soukup (1981) 141 Cal.App.3d 858, 862-63).
6. Stopping the Prosecution From Voiding a Deal: “The equity doctrine of estoppel prevents disavowal of a contract after one party in good faith relies to his own detriment on the representation of the other. 1 S. Williston on Contracts, §§ 139-140 (3d Ed. 1975 Supp.).” Palermo v. Warden, Green Haven State Prison, 545 F.2d 286, 295 n. 12 (2nd Cir. 1976) (State prevented by estoppel principles from arguing on appeal that the consideration defendants gave in return for a plea bargain — the return of allegedly stolen property — was ultra vires so as to justify the prosecution’s not living up to plea bargain).
Note also that one prosecutor’s word is binding on the entire office (Santobello v. New York (1971) 404 U.S. 257). Also, “[T]he People are ordinarily bound by their stipulations, concessions or representations regardless of whether counsel was the Attorney General or the district attorney.” (People v. Mendez (1991) 234 Cal.App.3d 1773, 1783).
See also Ellsworth v. Superior Court (1985) 170 Cal.App.3d 967, 974, where the DA was estopped from rescinding plea bargain where defendant entered plea, was sentenced and served jail time. This was a double jeopardy case. See also cases discussed in People v. Yu (1983) 143 Cal.App.3d 358, 371. Also, in other contexts such as immunity grants, having conferred unrestricted use immunity, the prosecution cannot renege after literal compliance by the defendant. As was said in United States v. Romano, 583 F.2d 1, 7 (7th Cir. 1978):
The Government would not, of course, be free to trick a potential witness by requiring detailed self-incriminatory statements as a so-called ‘proffer’ while reassuring the witness that their statements would not be used for the purpose of further investigation. The due process clause of the Fifth Amendment is a shield against unfair or deceptive treatment of an accused by the Government.
7. Government Speaks With Forked Tongue. The examples here are almost too numerous to list, but here are a few:
A) In serial trials of co-defendants, the prosecution cannot argue that one defendant committed a single assault as triggerman which only one person could have committed, secure a conviction, and then in a second trial argue that the second defendant was the triggerman. In such a case, the prosecutor cannot seek one “truth and justice” and then a separate “truth and justice” based on the same facts. The “State is constitutionally estopped from obtaining a fact-finding in one trial and seeking and obtaining an inconsistent fact-finding in another trial.” Nichols v. Collins (DC S.Tex 1992) 802 F.Supp. 66, 72-74 [MAYBE OVERRULED]; see also Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (Clark, J., concurring); cf., People v. Farmer (1989) 47 Cal.3d 888, 923, suggesting that such comparisons of inconsistent prosecutorial arguments from one case to another would be limited to instances of prosecutorial bad faith. [DISCUSSED GENERALLY IN Williams v. Calderon, 86 F.3d 1509 (9th Cir. 1996).]
B) A variant of the “forked tongue” prong of equitable estoppel occurred in United States v. Kattar (lst Cir. 1988) 840 F.2d 118, 128, where the appeals court noted that the United States Attorney’s office had repeatedly taken the position in federal courts that the Church of Scientology was dedicated to a pattern of illegal break-ins and harassment of targeted opponents. In Kattar’s trial, however, it put on evidence that such was not the case so as to further its unique prosecution theory of that case. The court of appeal was not amused. Using the evidence of the Government position in previous cases where Scientology members were on trial, the court held that the Government had knowingly put on false evidence at Kattar’s trial. It did this by comparing the Government statements made in the previous cases with the evidence presented by the prosecution in Kattar’s. Although the error was held harmless, the holding does establish a legal basis for protecting defendants from changes of prosecution theory based upon the expediency of a case. It is a form of estoppel — holding the Government to its previous pronouncements. [Footnote 21] See United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1324.
See Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995), holding ” that the district court erred in granting Nichols relief on the basis that the state was in some manner estopped or barred by its arguments and the result in the Williams trial from taking the position in the subsequent Nichols trial that the shot fired by Nichols was the fatal shot.”
Then there is the troubling case of Jacobs v. Texas, ___U.S. ___,115 S. Ct. 713, 130 L.Ed. 2d 620 (1995). There, the petitioner was convicted of murder for the shooting death of a woman after kidnaping her. Jacobs demonstrated that the State in a post-conviction trial of his co-defendant embraced his claim that he was not the shooter. In fact, after his conviction, the State called him as a witness in the other case to testify to the identity of the actual shooter. The prosecutor told the other jury that it was now convinced that Jacobs was telling the truth when he said the other person did the shooting without his knowledge. After using his testimony to convict the other defendant, Jacobs argued that the State could not justly hold on to his conviction based on the now discredited belief that he was the shooter. If the State’s position in the second trial were correct, Jacobs was innocent of capital murder. The State rejected his claims [Footnote 22] and the United States Supreme Court, by a six to three vote, denied certiorari. Jacobs was then executed.
See discussion of this type of argument in Thompson v. Calderon (9th Cir. en banc 1997) 120 F.3d 1045 — up in the U.S. Supreme Court on other questions.
The prosecutor’s pursuit of fundamentally inconsistent theories is evident from the transcripts of the two trials. In the second trial, the prosecutor presented essentially the same theory used at the pretrial proceedings. Yet, in between those court proceedings, the prosecutor convicted Thompson under an entirely different theory, and argued critical facts to Thompson’s jury that were at odds with those presented both in the preliminary hearing and in Leitch’s trial. (at 1056.)
C) In Russell v. Rolfs (9th Cir. 1990) 893 F.2d 1033, the State took a position on a federal habeas corpus claim that the prisoner should be required to take his claim back to state court and exhaust his adequate and available remedies there. The State prevailed on the point in federal court and when petitioner went back to state court, the State argued that the petitioner’s claim was procedurally default, waived and thus unavailable, a position flatly inconsistent with the representation it made to the federal district court. The State court agreed with the State’s argument and dismissed the case on procedural grounds. When the case came back to the federal court, that court dismissed the petition as based on an adequate and independent state ground (the state procedural default). The Ninth Circuit reversed applying the principles of judicial estoppel. It was chagrined that the State would represent to a federal court that petitioner’s cause should be dismissed because he had an adequate remedy in the state court, and then when petitioner was dismissed federally and went back to the State court, the State said he did not have a remedy there. This was not in keeping with the dignity of the justice system. See also Correll v. Stewart, 137 F.3d 1404 (9th 1998)(when the state successfully opposes a state court evidentiary hearing in a habeas proceeding, it cannot then argue in federal habeas that the petition should be faulted for not succeeding in his request in state court.)
Of a similar nature is Bennett v. Collins, 835 F.Supp. 930 (E.D. Tex. 1993), where the State sought to assert the defendant habeas-petitioner’s procedural defaults of his federal habeas claims; the district court refused because the State “…is complaining about behavior on the part of the applicant [petitioner] which is similar to its own behavior. …. It would be nonsensical to hold applicant, an indigent prisoner on death row, with court-appointed trial counsel, to a higher standard than that to which we hold respondent, the State of Texas, with all of its intellectual and financial resources.” See also Bennett v. Collins, 852 F.Supp. 570 (E.D. Tex. 1994).
“Confidence in the justice system cannot be affirmed if any party is free, wholly without explanation, to make a fundamental change in its version of the facts between trials, and then conceal this change from the final trier of facts.” (United States v. GAF Corp. (2nd Cir. 1991) 928 F.2d 1253, 1260 (government”s inconsistent bill of particulars admissible as a party admission.)
D) In People v. Dees (1990) 221 Cal.App.3d 588, the court was faced with a suppression motion in which the People claimed the defendant owned a Cadillac where contraband had been found in order to prosecute him for possession of the drugs inside. But when the defendant tried to prove his standing (legitimate expectation of privacy) to suppress evidence found in the search of the car, the prosecution argued he had no sufficient connection to the car at assert a Fourth Amendment interest. In estopping the State from taking this “forked tongue” position, the Court said: “Given these circumstances, we conclude the People are estopped to argue that appellant did not carry his burden to prove standing. Stated differently, the People in effect conceded appellant’s connection to the car and his expectation of privacy therein. (See United States v. Issacs, supra, 708 F.2d at p. 1368.) Moreover, the lower court, by holding appellant to answer on the basis of the People’s evidence, thereby rejecting appellant’s attempt to disassociate himself from the Cadillac, cannot then turn the tables to deny his assertion of privacy based on the exact same showing.” (at 597-598).
But see United States v. Wells, 117 S.Ct. 921 (1977), where the Supreme Court permitted the government to argue for a jury instruction telling the jury that materiality was an element of the offense, and to argue before it that materiality was not an element of the offense in question. That inconsistency was, the court said, just one of “several consideration bearing on whether to decide a question on which we granted certiorari.” Id. at 1985.
E) The Attorney General, the chief law officer of the State, is constitutionally mandated “to see that the laws of the State are uniformly and adequately enforced” (Cal. Consti., art. V, § 13). This should be used against any attempt by the Attorney General to argue that the course of true law runs one way in one case, and another in a different case. See People v. Brophy (1942) 49 Cal.App.2d 15, 28-29: “Manifestly, enforcement of the also contemplates enforcement according to law, the procedure for which is definitely established. There is nothing in section 21 [now 5] of article V which authorizes the Attorney General to depart from that procedure; ….”
The above cases are predicated upon the idea that the government’s word should be its bond. What it says in one case should be binding. “[A] clear and unambiguous admission of fact made by a party’s attorney in an opening statement in a civil or criminal case is binding upon the party” United States v. Blood (4th Cir. 1986) 806 F.2d 1218, 1221. [Footnote 23] Of course, this can work both ways. In United States v. Valencia (2nd Cir. 1987) 826 F.2d 169, the prosecution was allowed to use defense counsel’s opening remarks from the first trial as an admission against the defendant at the second trial based on the changes in the remarks concerning the facts of the case. [Footnote 24]
F) Can’t Renege on a Deal. In People v. Brunner (1973) 32 Cal.App,3d 908, 915, a DA was estopped from challenging a defendant’s claim to having been given immunity because, the DA argued, there was a lack of compliance with PC 1324.
Although section 1324 was not followed in this case, we conclude that the People are estopped from arguing noncompliance. It would be anomalous to permit the People, represented by the district attorney, to argue that an earlier agreement entered into by the district attorney was void for lack of compliance with a statute of whose existence the district attorney must have been aware. “[I]f a prosecutor, in the furtherance of justice, makes an agreement to withhold prosecution, the court may, upon proper showing, even in the absence of statute authority, honor the undertaking.” (State v. Reed (1969) 127 Vt. 532 [253 A.2d 227, 232]; see also 1 Wharton’s Criminal Law and Procedure, p. 396; Annot., 13 A.L.R.2d 1439.)
Similarly, a prosecutor’s promise not to use statements of a defendant will be
enforced by the courts under the same due process concerns:
it was fundamentally unfair and a violation of due process for the prosecutor in this case to use at trial defendant’s July 21, 1987, statement in breach of the prosecutor’s promise not to do so. Just as the defendant in Santobello v. New York, supra, 404 U.S. 257, waived his constitutional rights and pleaded guilty in exchange for and in reliance upon the prosecutor’s promises in the plea agreement, defendant here waived his constitutional right to remain silent in exchange for and in reliance upon the prosecutor’s promise not to use in court anything defendant said. (People v. Quartermain (1998) 16 Cal. 4th 600, 619.)
8. Let Freedom Ring: Mistaken Release Cases. From time to time, people are let out of prison by mistake (or perhaps never ordered to prison after being out on bail on appeal following the affirmance of the judgment). Most of these people manage to live a rehabilitated life. The question has been can the Government go back and pluck them from free society and incarcerate them? Not if the elements of equitable estoppel are urged. In Johnson v. Williford (9th Cir. 1982) 682 F.2d 868, the court refused to allow the reimprisonment of a convicted drug distributer after he had been mistakenly released (paroled) from serving a fifteen year non-parolable term after service of three years.
9. Let Freedom Ring: When The Government Won’t Tell What’s Legal. In United States v. Timmins, 464 F.2d 385 (9th Cir. 1972), young Harry La Verne Timmins, II, mistakenly interpreted the Draft Board’s form to preclude conscientious objector status unless it was based upon formal religious training and belief. Mr. Timmins believed his was a C.O. based upon moral and religious grounds, but since he lacked formal religious training, he thought he could not be a C.O. He requested other forms which dealt with C.O. status for those without formal religious training. The Board simply told him that the form he got was the only one around which misled Timmins into believing the such formal religious training was required to be a C.O. Timmins later refused to submit to induction and was convicted for the crime. Reversed.
“This circuit has recognized that unconscionably misleading conduct by the local board may be raised as a valid defense in a criminal prosecution. United States v. Lansing, 424 F.2d 225 (9th Cir. 1970). To establish such a defense, the defendant must show that the local board conveyed false or misleading information to him and that he was in fact misled by the information or conduct of the board. Further, he must show that his reliance on the misleading information was reasonable in the sense that he was entitled to rely upon the information without making further inquiries of the board. [citations]. Id. at 386-387.
The board was fully aware that Mr. Timmins was operating under a reasonable mistake of fact about his eligibility to be a C.O. and did nothing to correct his error. The court held that a citizen like Mr. Timmins “… must be able to rely upon the local board to deal with him fairly and to offer him assistance when necessary.” Id. at 387. Timmins acted reasonably in relying on the board’s misleading responses to his statements to them and he did not have to make further inquiry. This case is important in establishing that the misleading statement of the government entity authorizing the otherwise criminal conduct need not be all that direct. [Footnote 25]
Sometimes a great defense resembles a pumped-up Olympic weight lifter in a room full of 98 pound weaklings — one glance and you know he’s there. A case where the “other dude” who really did it appears in court to make a dramatic confession is like that. Other defenses are like exquisite wine requiring steady aging to emerge as savory libations. Equitable estoppel is like that; it demands counsel’s sensitivity to opportunity, imaginative application, and steady preparation for the ultimate happy swilling by judge and jury.
In People v. Tucker (1992) 6 CAL.APP.4th 903, 911-2, the court reversed a failure to pay support conviction where the defendant had requested an instruction on his good faith belief that the child was not his. It summarized the cases in this area: “A person who commits an act or makes an omission under a mistake of fact disproving criminal intent is excluded from the class of persons capable of committing a crime. (Penal Code section 26, subd. Three.) This defense has been applied in several contexts. (People v. Mayberry (1975) 15 Cal.3d 143, 154-155 [125 Cal.Rptr. 745, 542 P.2d 1337] [belief that a rape victim consented to engage in sexual intercourse]; People v. Hernandez (1964) 61 Cal.2d 529, 535-536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092] [belief that the complaining witness in a statutory rape prosecution had obtained the age of consent]; People v. Vogel (1956) 46 Cal.2d 798, 803-804 [299 P.2d 850] [belief that a prior marriage was legally terminated in a bigamy prosecution]; People v. Lucero (1988) 203 Cal.App.3d 1011, 1017-1018 [250 Cal.Rptr. 354] [in a prosecution for conspiring to smuggle narcotics into a jail, belief that defendant was immune because he was acting as a police informant at the time]; People v. Bray (1975) 52 Cal.App.3d 494, 498-499 [124 Cal.Rptr. 913] [in prosecution for being a felon in possession of a concealable weapon, belief that defendant had not been previously convicted of a felony]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11 [160 Cal.Rptr. 692] [in theft prosecution, belief that defendant had a legal right to the property taken].) The rationale for this defense is that “one who labors under a mistake of fact that negates the existence of any criminal intent cannot be convicted of a crime. [Citations.]” (People v. Castillo (1987) 193 Cal.App.3d 119, 124 [238 Cal.Rptr. 207].)”
There, the court at page 1192 summarized the defense of reliance on an expert: “It is a valid defense to a charge of filing a false return if a defendant provides full information regarding his taxable income and expenses to an accountant qualified to prepare … tax returns, and that the defendant adopts and files the return as prepared without having reason to believe that it is incorrect.” (United States v. Whyte (7th Cir. 1983) 699 F.2d 375, 379; see Annot., Reliance on Advice of Attorney, Accountant, or Tax Expert as Defense in Criminal Prosecution for Attempt to Evade Federal Income Tax Under §7201 of the Internal Revenue Code of 1954 (26 U.S.C. §7201) (1970) 3 A.L.R.Fed. 665.) If not a complete defense, it at least tends to establish the defendant lacked the requisite wilfulness to commit tax fraud (United States v. Conforte (9th Cir. 1980) 624 F.2d 869, 876, cert. den. 449 U.S. 1012 [66 L.Ed.2d 470, 101 S.Ct. 568]). Instructions on this defense should be given when supported by the evidence. (Bursten v. United States (5th Cir. 1968) 395 F.2d 976, 981, 3 A.L.R.Fed. 644, cert. den. 409 U.S. 843 [34 L.Ed.2d 83, 93 S.Ct. 44]; United States v. Mitchell (4th Cir. 1974) 495 F.2d 285, 288-289; see United States v. Williams (5th Cir. 1978) 573 F.2d 284, 291-292; United States v. Vannelli (8th Cir. 1979) 595 F.2d 402, 404-405; and Whyte, supra, 699 F.2d 375, 379-380, for approval of instructions given therein.)”
The opinion was modified on rehearing at 920 F.2d 940, but not as to the issue of “authorization.”
The requested instruction read: “If you find that LtCol North acted in good faith on a superior’s apparent authorization of his action, and that his reliance was reasonable based on the facts as he perceived them, that is a complete defense to [Count Six and Nine].” (910 F.2d 843).
287 U.S. 435 (1932); Sherman v. United States, 356 U.S. 369 (1958). See also Jacobson v. U.S., 122 S.Ct. 1535 (1992), where the Court held the Government may not originate a criminal design in the person’s mind. If the issue is raised, the government must now show beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by the government agents. That is the sole issue in this case — did the government carry its burden of showing Jacobson was predisposed to commit the act? The majority said no.
See also People v. Heath (1989) 207 Cal.App.3d 892, 900-901, explaining the difference between necessity and duress: “The defendant must show that the act was done under such threats or menaces that he had (1) an actual belief his life was threatened and (2) reasonable cause for such belief. (People v. Condley (1977) 69 Cal.App.3d 999, 1012 [138 Cal.Rptr. 515].) A defendant claiming the defense of duress or coercion may properly rely on CALJIC No. 4.40.”
In a related kind of statutory estoppel, the court in People v. McGee, 19 Cal.3d 948 (1977), held that in order to prosecute for welfare fraud, the governmental agency had to seek restitution first — deemed a jurisdictional requirement of the statute — and that unless the prosecution proved that restitution had been sought prior to filing charges, the charges must be dismissed.
The doctrine requires privity of parties for if the government employees are so deemed, the legal issue may be precluded from relitigation (City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 227). Thus, where both sides have had “. . . a full and fair opportunity to litigate federal claims, . . .” there is no reason to “deny binding effect to a state-court judgment or decision” for collateral estoppel purposes (Allen v. McCurry (1980) 449 U.S. 90, 104 (1980).
A prosecutor has absolute immunity from a 42 U.S.C. 1983 suit from liability for activities intimately associated with the judicial phase of the criminal process (Imbler v. Pachtman (1976) 424 U.S. 409, 430-31). However, only a qualified good faith immunity protects activities carried out in the prosecutor’s investigative or administrative capacity (Powers v. Coe (Powers I) (2nd Cir. 1984) 729 F.2d. 97, 103; Higgs v. District Court (Colo. 1985) 713 P.2d 840). A local police officer may be entitled to a qualified immunity from damages under a 42 U.S.C. §1983 suit when he can show he acted in good faith and in a reasonable manner in carrying out his official duties (Procunier v. Navarette (1978) 434 U.S. 555). But this is an affirmative defense (Robinson v. Bergstrom (7th Cir. 1978) 595 F.2d 401, 404).
The elements of a California discriminatory prosecution claim are that the defendant has been deliberately singled out for prosecution based upon an invidious criterion and that the prosecution would not have been pursued except for the discriminatory design (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 348; Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293). It is the defendant’s burden to prove discriminatory prosecution (People v. Smith (1984) 155 Cal.App.3d 1103, 1128- 1130) and it must be shown by a preponderance of evidence.
A motion for discovery in California to support such a claim need only specifically describe the information required and support it with a “plausible justification” (Griffin v. Muni Ct. (1977) 20 Cal.3d 300, 306; People v. Serna (1977) 71 Cal.App.3d 229, 234-235). In People v. Ochoa (1985) 165 Cal.App.3d 885, 889, the court noted that a “[d]efendant can meet the requirements of discovery, . . . without establishing a prima facie case of selective prosecution.” The court observed that the “plausible justification” standard could be met by general allegations which establish some cause for discovery other than a mere desire to obtain all the prosecution’s files or investigation material (ibid.). Since “[e]vidence of discriminatory enforcement usually lies buried in the consciences and files of the law enforcement agencies involved . . . . ” (People v. Gray (1967) 254 Cal.App.2d 256, 266), the showing required need not be strong (see People v. Ochoa, supra at 888), but only plausible.
involved a prosecutor who during final argument committed error by commenting on the silence of the defendants during trial. The Supreme Court believed the error harmless beyond a reasonable doubt and therefore found it inappropriate for the lower court to reverse the conviction as a sanction to punish the prosecutor. See generally Wright, Federal Practice and Procedure, section 101, at p. 151.
(1983) 140 Cal.App.3d 677, 685-686, summarizes California’s acceptance of this due process defense: “In People v. McIntire, supra, 23 Cal.3d at page 748, footnote 1, the California Supreme Court intimated that “[s]ufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law.” To date, there has been no case in California which has reached such a conclusion. [The California Supreme Court in McIntire cites People v. Isaacson (1978) 44 N.Y.2d 511 [406 N.Y.S.2d 714, 378 N.E.2d 78], as an example of police conduct which triggers the due process clause.]
* * * * * * *
The defense has been recognized and applied by lower federal courts. (See, e.g., United States v. Twigg (3d Cir. 1978) 588 F.2d 373, 379-381; United States v. West (3d Cir. 1975) 511 F.2d 1083, 1085; United States v. Bueno (5th Cir. 1971) 447 F.2d 903, 905; Greene v. United States (9th Cir. 1971) 454 F.2d 783, 787; United States v. Prairie (9th Cir. 1978) 572 F.2d 1316, 1319.) In the federal courts, the defense is distinct from that of entrapment. First, while entrapment presents a question of fact, this defense presents a question of law. (United States v. McQuin (9th Cir. 1980) 612 F.2d 1193, 1196, cert. den., 445 U.S. 955 [63 L.Ed.2d 791, 100 S.Ct. 1608].)
See People v. Atchison (1978) 22 Cal.3d 181, 183:
Further, we do not agree with the suggestion below that “[i]t is hard to see how the defendant here could on the one hand contend that he did nothing improper and at the same time ask that the jury be told that the conduct which he engaged in would be lawful or unlawful depending on whether or not he believed that the victim was over 18.” (See 1 Witkin, Cal. Crimes, § 177, subd. (1): “Inconsistent defenses are normally permitted in criminal as well as civil cases; e.g., not guilty and insanity; denial of act and self-defense. [Citations.]”).
Cf., United States v. Calley (1973) 46 C.M.R. 1131, aff’d, 22 C.M.A. 534, the court upheld a murder conviction of Lt. Calley, holding that he had intentionally shot and killed Vietnamese villagers. Calley argued that he reasonably believed that he was lawfully ordered to do so. The court found that reliance on any such an order would be unreasonable.
California civil cases have long recognized estoppel as a defense. See, e.g., Richfield Oil Corp. v. Crawford, 39 Cal.2d 729 (1952). In this civil suit between oil companies and land owners over the construction of a certain code section in the Public Resources Code (§3600). As part of its analysis, the court said, “Although failure to enforce statutes of this state will not estop a state agency from their subsequent enforcement (citations), past administrative action is evidence of the limits of the power to act [Citations].” (Id. at 736).
The rule in Accardi was restated in Service v. Dulles, 354 U.S. 363, 372 (1957), which held: “[T]hat regulations validly prescribed by a government administrator are binding upon him as well as the citizen, and that this principle holds even when the administrative action under review is discretionary in nature.” A rule issued in the reasonable exercise of delegated authority, is a valid legislative rule having the force of law on courts and the Executive Branch. David v. Donovan, 698 F.2d 1057, 1058 (9th Cir. 1983).
In United States v. Caceres, 440 U.S. 741, 742 (1979), the IRS did not follow a rule in its manual requiring high level authorizations before agents could tape record conversations. The Supreme Court held that an occasional violation of that rule in the manual did not warrant suppression as this rule did not have the status of federal law. Further, the court noted the importance of rules regulating criminal investigations as opposed to rules which might be interpreted as exclusionary rules.
Regulations governing the conduct of criminal investigations are generally considered desirable, and may well provide more valuable protection to the public at large than the deterrence flowing from occasional exclusion of evidence in criminal trials. (440 U.S. 745-46)
Mention was made of People v. Costa (1991) 1 Cal.App.4th 1201, 1208-1210, where the defendant unsuccessfully argued that the mistake of fact defense applied because he believed a person was acting as an agent of the police when he discussed the drug manufacturing process with him; in fact, person was not an informant and further, there is no law that allows an informant to immunize others from liability. Health and Safety Code section 11367 provides: “All duly authorized peace officers, while investigating violations of this division in performance of their official duties, and any person working under their immediate direction, supervision or instruction, are immune from prosecution under this division.” Thus, if a defendant such as Lucero is working for the police (perhaps a jury question where the authorization is denied by the constabulary), this law provides a basis for statutory estoppel as well as a mens rea defense.
Here, the defendant was arrested for being under the influence of cocaine. She stated to her attorney she was actually under the influence of methamphetamine. The attorney told her it made no difference under the statute she was charged under whether it was cocaine or methamphetamine. He suggested she not tell about the methamphetamine. She then testified at her trial she was not under the influence of cocaine but then perjured herself by saying she had taken no other controlled substances. She was convicted of the cocaine charge. Thereafter, she discovered it was no crime to be under the influence of methamphetamine (now it is). She brought a habeas corpus petition alleging ineffective assistance of counsel. The State argued she should be estopped by her perjury to claim she was actually under the influence of methamphetamine. The court said estoppel cannot be used to deny a claim of innocence.
But see United States v. Durrani, 659 F.Supp. 1183 (D. Conn. 1987), where the court refused to allow into evidence against the Government the Tower Commission Report on the Reagan Administration’s secret supply of missiles to Iran. The defendant sought admission to prove his defense that he was selling Hawk missile parts to Iran at the behest of the United States Government. The court relied on United States v. Santos, 372 F.2d 177 (2nd Cir. 1967), for the proposition that government agent’s out-of-court statements can not be used as admissions because those statements “cannot bind sovereign.” See Imwinkelried, “Of Evidence and Equal Protection: The Unconstitutionality of Excluding Government Agents’ Statements Offered As Vicarious Admissions Against the Prosecution,” 71 Minn.L.Rev. 269 (1986) (criticizing the Santos line of authority).
As did the federal lowers courts. See Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994), which upheld the death sentence because Jacobs was merely arguing that the State came to believe in his innocence of capital murder. “There is no independent constitutional error,” said the court at p. 1325, and therefor no federal claim under Herrera. These decisions should be very troubling to a society that values innocent life and is aware that wrongful convictions do indeed occur in capital cases. See Bedau, Radelet, and Putnam, In Spite of Innocence (Northeastern Univ. Press. 1992) (detailing the four hundred cases in which persons were wrongly convicted of crimes punishable by death).
Statements of fact by counsel to the court are deemed as if made under oath. (Mosesian v. State Bar (1972) 8 Cal.3d 60, 66.) Thus, when defense counsel at trial stipulates to a fact (e.g., the nature of a controlled substance), the court on appeal will refuse to release the defendant from it stating: “It is, of course, well established that the defendant is bound by the stipulation or open admission of his counsel and cannot mislead the court and jury seeming to take a position on issues and then disputing or repudiating the same on appeal.” (People v. Pijal (1973) 33 Cal.App.3d 682, 697.)
In United States v. McKeon (2nd Cir. 1984) 738 F.2d 26, the appellate court admitted the inconsistent opening argument of defense counsel at a previous case to be admitted to show a false theory of the defendant’s admission of innocence. It did so, but set forth a narrow series of conditions to introduce such evidence.
See also United States v. Georgia-Pacific Company, 421 F.2d 92 (9th Cir. 1970), where the government cut a deal with a company to make land the company donated to the government into National Forest land. Later, a government order was issued retracting the boundaries of the National Forest to exclude some of the lands covered in the agreement and the owner thereafter worked and managed the land at considerable expense which added to its value. Thirty years later, the Government sued to enforce the original deal (i.e., claim right to the land). Held: the government is estopped by its silence to assert any right in the original land deal: “Many kinds of activities — or inactivity — on the part of a defendant may permit the defense of equitable estoppel to be asserted against him…. A party’s silence, for example, will work an estoppel if, under the circumstances, he has a duty to speak.” Id. at 97.