     Case: 10-50577   Document: 00511519380     Page: 1   Date Filed: 06/23/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  June 23, 2011

                                   No. 10-50577                   Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee
v.

LUIS ANGEL SARILES,

                                             Defendant-Appellant




                  Appeal from the United States District Court
                       for the Western District of Texas


Before KING, WIENER, and CLEMENT, Circuit Judges.
KING, Circuit Judge:
        Luis Angel Sariles appeals following his conviction after a bench trial of
importing and possessing with intent to distribute fifty kilograms or more of
marijuana. Sariles sought to assert a public authority defense at trial on the
basis that he had been acting on the apparent authority of a local law
enforcement officer to permit his conduct. We hold, consistent with sister circuit
precedent, that the public authority defense requires a law enforcement officer
who engages a defendant in covert activity to possess actual, rather than only
apparent, authority to authorize the defendant’s conduct. We therefore AFFIRM
the district court’s judgment.
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                                  No. 10-50577

                              I. BACKGROUND
      On November 13, 2009, Sariles was stopped at the Paso Del Norte Port of
Entry in El Paso, Texas, driving a van loaded with 97.3 kilograms of marijuana.
The Government charged him in a two-count indictment with importation of fifty
kilograms or more of marijuana, in violation of 21 U.S.C. §§ 952(a), 960(a)(1)
and 960(b)(3), and with possession with intent to distribute fifty kilograms or
more of marijuana, in violation 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
      At the time of his arrest, Sariles contended that he had been acting in
cooperation with Deputy Kevin Roberts of the Reeves County Sheriff’s
Department. Prior to the arrest at the border, Deputy Roberts had stopped
Sariles on two separate occasions and discovered evidence of narcotics
trafficking. Sariles and Roberts entered into an oral agreement for Sariles to
avoid charges in Reeves County by providing Roberts with information about
load vehicles of marijuana crossing the border from Mexico. According to Deputy
Roberts, Sariles was told that he was not to transport any further loads of
marijuana into the United States and that if he did so he would be “on his own.”
Sariles contended, however, that he could not obtain information about the
smuggling operation without running a load of marijuana and that he believed
Deputy Roberts wanted him to deliver the load as part of their agreement.
      Based on this belief, Sariles filed the requisite notice of a public authority
defense pursuant to Federal Rule of Criminal Procedure 12.3. The Government
moved to exclude the defense on the grounds that Sariles was not acting at the
behest of Deputy Roberts and that, even if he were, the defense was inapplicable
because Roberts, as a state official, lacked the actual authority to authorize
Sariles to violate federal drug laws.
      The district court conducted a hearing and agreed with the Government
that Sariles could not present evidence of a public authority defense.         The
district court reasoned that apparent authority is insufficient and a defendant

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                                  No. 10-50577

cannot rely on the defense unless the law enforcement officer has the actual
authority to sanction the otherwise illegal conduct. Although Sariles’s subjective
belief about his agreement with Deputy Roberts was disputed, it was undisputed
that Roberts lacked actual authority to permit importation and possession with
intent to distribute marijuana in the United States. Accordingly, the district
court concluded that the defense was not viable. It further concluded that
evidence of Sariles’s belief or understanding that he was acting under public
authority was inadmissible as irrelevant under Federal Rule of Evidence 402.
      Sariles subsequently agreed to a bench trial based on stipulated facts. He
agreed in the stipulation that he imported and possessed marijuana, knew the
substance involved was marijuana, and possessed the marijuana with the intent
of distributing it. He also stipulated to the place of entry into the United States
and the quantity of the drugs. The district court found Sariles guilty of both
counts of the indictment and sentenced him to concurrent terms of 51 months
in prison and three years of supervised release.
                               II. DISCUSSION
      On appeal, Sariles argues that the district court erred in ruling that the
public authority defense was unavailable. Relying primarily on the language of
Federal Rule of Criminal Procedure 12.3, he contends that a defendant need rely
only on the apparent authority of a law enforcement officer in order to invoke
public authority as a defense. Whether a defendant should have been allowed
to present an affirmative defense is a legal issue that we review de novo. See
United States v. Long, 562 F.3d 325, 328 (5th Cir. 2009) (reviewing de novo a
district court’s refusal to provide a jury instruction on insanity).
      Rule 12.3 provides in relevant part that “[i]f a defendant intends to assert
a defense of actual or believed exercise of public authority on behalf of a law
enforcement agency or federal intelligence agency at the time of the alleged
offense, the defendant must so notify an attorney for the government in writing

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. . . .” F ED. R. C RIM. P. 12.3(a)(1). We have recognized that this defense “is
available when the defendant is engaged by a government official to participate
or assist in covert activity.” United States v. Spires, 79 F.3d 464, 466 n.2 (5th
Cir. 1996); see also United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995)
(“‘Public authority’ has been described as an affirmative defense where the
defendant seeks exoneration based on the fact that he reasonably relied on the
authority of a government official to engage him in covert activity.”). But we
have not previously addressed whether the defense requires the government
official to have actual, as opposed to apparent, authority to authorize the
defendant’s acts.
      Many of our sister circuits have considered this question, however. The
Third Circuit has summarized well the history of the public authority defense,
which has its roots in the common law. See United States v. Pitt, 193 F.3d 751,
756 (3d Cir. 1999). At common law, the illegal actions of a public official or law
enforcement officer acting within the scope of his duties were not crimes. Id.; see
also United States v. Fulcher, 250 F.3d 244, 254 n.4 (4th Cir. 2001). Thus, in
order for the defendant to invoke the defense the official or officer had to have
the actual authority to engage in the conduct at issue. Pitt, 193 F.3d at 756.
Consistent with this rule, a defendant who claims he was acting on behalf of a
law enforcement officer may escape culpability only because that officer had the
ability to permit the conduct. A defendant may claim that he made a good faith
mistake about the scope of the officer’s authority because it appeared to him that
the officer was sufficiently able to permit his conduct. Our sister circuits hold
that reliance on apparent authority alone is a mistake of law, which generally
cannot excuse a criminal act. See Fulcher, 250 F.3d at 253 (holding that acting
on an officer’s apparent authority is a mistake of law because it is a mistake
about “‘the legal prerogatives attached’” to the officer’s status and is not a
defense); United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir.

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                                       No. 10-50577

1994) (“[R]eliance on the apparent authority of a government official is not a
defense in this circuit, because it is deemed a mistake of law, which generally
does not excuse criminal conduct.”); United States v. Duggan, 743 F.2d 59, 83 (2d
Cir. 1984) (“The mistake that defendants advance here as an excuse for their
criminal activities—their reliance on Hanratty’s purported authority—is an
error based upon a mistaken view of legal requirements and therefore
constitutes a mistake of law.”), superseded by statute on other grounds as
recognized by United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010). The
majority of circuits to opine on the issue, therefore, hold that the defense of
public authority requires the defendant reasonably to rely on the actual, as
opposed to apparent, authority of a government official to engage him in covert
activity. See Fulcher, 250 F.3d at 254; Pitt, 193 F.3d at 758; Baptista-Rodriguez,
17 F.3d at 1368 n.18.1
       An opinion from one judge on a divided panel in the District of Columbia
Circuit did recognize apparent authority as part of an exception to the mistake
of law doctrine. See United States v. Barker, 546 F.2d 940, 949 (D.C. Cir. 1976)
(opinion of Wilkey, J.). But in that case all three judges wrote separately, and,
as noted by the Second Circuit, apparent authority “cannot be viewed as the
rationale of the court” because only one judge endorsed that theory. Duggan,


       1
          See also United States v. Matta-Ballesteros, 71 F.3d 754, 770 n.12 (9th Cir. 1995)
(holding that public authority defense failed because “‘a CIA agent could not lawfully authorize
the violation of the federal drug laws’”) (internal citation omitted), as amended, 98 F.3d 1100
(9th Cir. 1996); United States v. Holmquist, 36 F.3d 154, 161 nn. 6–7 (1st Cir. 1994)
(comparing the “nonexistent defense of apparent authority” with “the potentially viable
defense of actual public authority,” which comes into play “when a defendant undertakes
certain acts, reasonably relying on the statements of a government agent cloaked with actual
authority”); United States v. Rosenthal, 793 F.2d 1214, 1235–36 (11th Cir.) (holding that
district court did not err by limiting evidence of, and not failing instructing jury on, public
authority defense based on alleged instructions from CIA officials, who lack power to authorize
violations of federal law, because “a defendant may only be exonerated on the basis of his
reliance on real and not merely apparent authority”), modified on other grounds, 801 F.2d 378
(11th Cir. 1986); Duggan, 743 F.2d at 84 (declining to adopt view “that a defendant may be
exonerated on the basis of his reliance on an authority that is only apparent and not real”).

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                                       No. 10-50577

743 F.2d at 84. Instead, we find persuasive the reasoning of the great majority
of our sister circuits that require actual authority on the part of the law
enforcement officer, and we choose to follow that path.2
       Sariles argues that despite the traditional common law view, Rule 12.3
imports apparent authority into the public authority defense because it refers
to a defendant’s “believed exercise” of authority. Rule 12.3 was promulgated by
Congress in 1988. See Anti-Drug Abuse Amendments Act of 1988, Pub. L. No.
100–690, § 6483, 102 Stat. 4181 (1988). It is generally recognized as a rule of
procedure, rather than a substantive provision, that is intended to avoid unfair
surprise by requiring notice of the defense to the Government. United States v.
Burrows, 36 F.3d 875, 881 (9th Cir. 1994); see also Pitt, 193 F.3d at 756–57
(discussing history of the rule). Accordingly, we agree with our sister circuits
that the enactment of Rule 12.3 “does not alter the common law requirement[]”
that actual authority is a necessary element of the public authority defense.
Pitt, 193 F.3d at 757; see also Fulcher, 250 F.3d at 254 n.5 (“Rule 12.3 is merely
a notice provision and does not in any way alter the substantive legal standards
with regard to the public authority defense[.]”); Burrows, 36 F.3d at 881 (“Rule
12.3 sets forth a notice requirement but does not limit or expand the public
authority defense.”).
       In accord with the above precedent, we hold that the public authority
defense requires the defendant reasonably to rely on the actual, not apparent,
authority of the government official or law enforcement officer to engage the
defendant in covert activity. Because it is undisputed here that Deputy Roberts


       2
         This view is also consistent with our precedent concerning the similar defense of
entrapment by estoppel, which “is applicable when a government official or agent actively
assures a defendant that certain conduct is legal and the defendant reasonably relies on that
advice and continues or initiates the conduct.” Spires, 79 F.3d at 466. As a “narrow exception”
to the mistake of law doctrine, entrapment by estoppel requires a defendant charged with a
federal crime to show the actual authority of a government official to render the advice about
federal law. Id. at 466–67.

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                                         No. 10-50577

lacked actual authority to authorize Sariles’s violation of the federal drug laws,
the district court correctly held that the public authority defense was
unavailable.3
                                    III. CONCLUSION
       For the foregoing reasons, the district court’s judgment is AFFIRMED.




       3
         As noted above, the district court’s holding in this case was two-fold: first, it held that
the officer must have had actual authority in order for the defendant to invoke the public
authority defense; and second, it concluded that in light of this legal determination and
Deputy Roberts’s lack of such authority, evidence of Sariles’s belief about the agreement was
inadmissible as irrelevant under Federal Rule of Evidence 402. The parties have not
addressed the second part of the district court’s holding, and we therefore do not consider
whether the evidence might otherwise have been admissible as bearing on Sariles’s intent.

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