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VOLUME 11 - CHAPTER 252
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252.10 Innocent Intent, Good Faith

    252.10.1 Innocent Intent

    252.10.1.1 Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement
    252.10.1.2 Defense Theory: Defendant’s Intent To Apprehend The Culprits
    252.10.1.3 Receiving/Possession Of Stolen Property: Innocent Intent Defense
    252.10.1.4 Theft/Larceny: Temporarily Using Or Borrowing Property As Defense Theory
    252.10.1.5 Vague Or Ambiguous Statute/Regulation: Defendant's Reasonable Belief In Lawfulness Of Conduct

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    252.10.1.1    Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement In Performance Of Legitimate Law Enforcement Activities

RATIONALE: Without a defense theory instruction the jury may not understand that there is no criminal intent if the defendant honestly believed he or she was acting under governmental or law enforcement authorization.

POINTS AND AUTHORITIES: Where the defendant reasonably believed he or she acted in cooperation with the government, this "mistake of fact" may negate criminal intent and the jury should be instructed either that "a defendant who thought he was performing legitimate law enforcement activities may lack the necessary criminal intent where he reasonably believed he acted in cooperation with the government...[or]...that a defendant’s 'mistake of fact' may negate criminal intent...." [Citations omitted.] (U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154; see also United States v. Davis (9th Cir.1996) 76 F3d 311, 314; United States v. Mason (9th Cir.1990) 902 F2d 1434, 1440–41; 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.10 [Public Authority or Government Authorization Defense] (2000).)

    When there is any foundation in the evidence for such an instruction, the defendant has the right to instruct the jury that a guilty verdict may not be returned if the defendant honestly and in good faith believed that he or she was engaged in undercover work for the government. (See U.S. v. Ruiz, supra.) In Ruiz, the defendant’s defense theory instruction should have been given based on the law of mistake of fact. The general "willfulness" instruction did not adequately address the mistake of fact theory..

    Although this is a statutory defense in some jurisdictions, it should also be a defense in jurisdictions without a specific statutory defense based on the fact that the defendant’s reasonable belief negates criminal intent and/or constitutes a mistake of fact. (See FORECITE National™ 45.1.1 [Requirement Of Criminal Intent Or Culpable Mental State: General Principles].)

    See also FORECITE National™ 257.4 [Equitable Estoppel].

    See also FORECITE National™ 257.5 [Immunity From Prosecution].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

    It is [the] [a] theory of the defense that defendant's possession of the _____________ (name of controlled substance) was not unlawful because [the defendant reasonably believed [he] [she] was acting within the course and scope of [his] [her] official duties as a law enforcement agent] [was acting within the course and scope of [his] [her] official duties as a law enforcement agent].

[Source: FORECITE National™.]  

    If the defendant was acting as, or reasonably believed that [he] [she] was acting as, an agent of [the police] [a law enforcement agency] [he] [she] is not guilty. 

[See generally U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154; United States v. Mason (9th Cir.1990) 902 F2d 1434, 1440–41; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 260.10 [Dangerous Drugs--Possession Of A Controlled Substance] ¶ 5 (TRCC, 1999); see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.10 [Public Authority Or Government Authorization Defense] (2000).]

    A person who honestly follows the instructions of a police officer and acts for the exclusive purpose of assisting in law enforcement does not violate the law.

[See OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.25(4) [Defenses--Unlawful Entrapment--Acting for Police] (Anderson, 2000).]

    If a person engages in conduct violative of a criminal statute at the request of a government enforcement officer, with the reasonable belief that he or she is acting as an authorized government agent to assist in law enforcement activity, then that person may not be convicted of violating the criminal statute, because the requisite criminal intent is lacking. The government must prove beyond a reasonable doubt that the defendant did not have a reasonable belief that [he] [she] was acting as an authorized government agent to assist in law enforcement activity at the time of the offense charged in the indictment.

[Source: Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.10 [Public Authority Or Government Authorization Defense] (2000).]

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PRACTICE NOTE: The defendant’s good-faith belief that his or her participation in the crime was for the purpose of apprehending the culprits rather than for criminal purposes may negate criminal intent. (See U.S. v. Roberts (5th Cir. 1989) 887 F2d 534, 536.) In such a case, psychological testimony may be appropriate to explain why and how the defendant maintained such a belief. (Ibid.; U.S. v. Reeves (8th Cir. 1984) 730 F2d 1189, 1195-96 [recognizing that there may be no criminal intent in a reverse-sting operation, but finding sufficient evidence of intent].)

    See also FORECITE National™  252.10.1.1 [Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement].

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    See FORECITE National™ 97.5.1 [Receiving Stolen Property: Intent To Return Property Or Other Innocent Intent As Defense Theory].

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    See FORECITE National™ 103.1.3.5 [Theft/Larceny: Temporarily Using Or Borrowing Property As Defense Theory].

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PRACTICE NOTE: Where the statute or regulation under which the defendant is being prosecuted is ambiguous and could have been interpreted by the defendant to permit the acts committed, the jury should be instructed that the prosecution must prove beyond a reasonable doubt that there was no reasonable interpretation of the situation under which the defendant could have believed he or she was acting lawfully. (See U.S. v. Migliaccio (10th Cir. 1994) 34 F3d 1517, 1524-25 [regulations regarding health insurance forms subject to interpretation negating criminal intent].)

    See also FORECITE National™ 300.13 [Vagueness And Overbreadth].