                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 04-10240
                Plaintiff-Appellee,
               v.                                D.C. No.
                                              CR-03-01264-DCB
MARNIE ANN BURT,
                                                 OPINION
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
                 for the District of Arizona
         David C. Bury, District Judge, Presiding

                    Argued and Submitted
         January 13, 2005—San Francisco, California

                       Filed June 8, 2005

    Before: Myron H. Bright,* A. Wallace Tashima, and
           Consuelo M. Callahan, Circuit Judges.

                    Opinion by Judge Bright




  *The Honorable Myron H. Bright, United States Circuit Judge for the
Eighth Circuit, sitting by designation.

                               6619
                    UNITED STATES v. BURT                6621


                         COUNSEL

John D. Kaufmann, Tucson, Arizona, for the appellant.

Paul K. Charlton, United States Attorney, Christina M.
Cabanillas, Deputy Appellate Chief, Jeffrey H. Jacobson,
Assistant United States Attorney, Tucson, Arizona, for the
appellee.


                         OPINION

BRIGHT, Circuit Judge:

  The government filed a two-count indictment charging
appellant Marnie Ann Burt with conspiracy to transport illegal
6622                 UNITED STATES v. BURT
aliens and transportation of illegal aliens. Burt requested jury
instructions on her apparent public authority defense. The dis-
trict court refused to give Burt’s requested jury instructions,
and the jury found Burt guilty on both counts. Burt appeals
and argues the district court erred in refusing to instruct the
jury on her public authority defense. Burt presented sufficient
evidence to justify jury instructions on her public authority
defense. We reverse and remand for a new trial.

I.   Background

   On May 22, 2003, Border Patrol Agents Mike Van
Edwards and Brian Brown arrested Burt for transporting ille-
gal aliens. Burt told the agents that she had information
regarding a plan to transport illegal aliens in a semi-trailer that
coming weekend. The agents were interested in this informa-
tion. Agent Brown decided not to recommend that Burt be
prosecuted, and Agent Van Edwards contends he told Burt
she would not be prosecuted. Burt agreed to come back the
next day to meet with the agents regarding her knowledge of
the semi-trailer plan. Burt contends that the agents told her
that a warrant would be issued for her arrest if she did not
attend the meeting.

   The next day, May 23, 2003, Agent George Scott inter-
viewed Burt. Agents Brown, Van Edwards, and Mark Friend
were also present at the interview. Agent Scott was the only
person who took notes during the interview. Burt contends
she appeared at the meeting to avoid prosecution. Agent Scott
contends he told Burt that she was not a confidential infor-
mant, that she should not do anything illegal, and that she
should contact him with any information. Burt claims that the
agents instructed her to get information and told her not to do
anything illegal. Burt contends, however, that the agents told
her that she would not be doing anything illegal as long as she
was gathering information for the agents. Burt never con-
tacted the agents after the interview.
                     UNITED STATES v. BURT                        6623
   On May 28, 2003, border patrol agents arrested Burt for
transporting illegal aliens in a van. Burt told the agents that
she was working for Agent Van Edwards. Shortly after Agent
Scott heard that Burt had been arrested, he destroyed his notes
of the May 23 meeting.

  The government filed an indictment, charging Burt with
conspiracy to transport illegal aliens and transportation of ille-
gal aliens. At trial, Burt testified that she believed she was
properly collecting information for the agents. At the close of
evidence, Burt’s counsel and the district court discussed
Burt’s requested jury instructions, which included the model
Ninth Circuit public authority instruction. The following
exchange took place:

       MR. KAUFMANN [Burt’s counsel]: . . . . I have
    requested the Court give the public authority defense
    instruction pursuant to 6.10, and I have included the
    public authority defense as my Defendant’s
    Requested Instruction No. 2. I know we have argued
    this ad nauseam, so I’m not going to bother the
    Court with the other arguments. I’m going to try to
    incorporate them by reference herein and tell the
    Court once again, much to my consternation, that it’s
    a question for the jury and not for the Court.

      THE COURT: I’m going to refuse Defendant’s
    Requested Instruction No. 2 on public authority . . . .

       ....

       MR. KAUFMANN: The second one is I think you
    are required in every case to give the defendant’s
    theory of the case instruction to a jury. And I have
    requested one. My Special Requested Instruction No.
    1, Defendant’s Theory of the Case, gives them what
    my theory of the case is. . . . You’re going to have
    to tell the jury that if they believe it or there is a rea-
6624                     UNITED STATES v. BURT
       sonable possibility or more than just a wild possibil-
       ity of chance, that they need to find for the
       defendant. That’s the law.

          And you’re required by Zuniga and Lopez-Alvarez
       to give that instruction, and failure to give that
       instruction or something similar to this — if the
       Court wishes me to modify it because this was unsat-
       isfactory, I’m more than happy to do so. But they’re
       entitled to get a defendant’s theory of the case
       instruction.

         THE COURT: Well, I think the defendant’s the-
       ory is covered by the offense instructions, that is,
       whether there was any intent to enter into any con-
       spiracy and whether the defendant knowingly trans-
       ported aliens to assist them to remain in the United
       States.

         So I’m going to refuse Defendant’s Requested
       Instruction No. 1 or any further tailored instruction
       pertaining to the defendant’s theory of the case
       beyond what’s covered by the offense instructions.

J.A. 277-79. The district court refused to give Burt’s
requested public authority jury instruction.1 The jury found
Burt guilty of both counts in the indictment.
  1
   Burt’s other defenses, including equitable estoppel and entrapment by
estoppel, had been rejected or commented on by the magistrate judge’s
recommendation and the district court’s pretrial order. During trial, how-
ever, the only issue raised on jury instructions was Burt’s requested public
authority instruction. The Ninth Circuit Model Criminal Jury Instruction
6.10 Public Authority or Government Authority Defense reads:
         If a defendant engages in conduct violative of a criminal stat-
      ute at the request of a government enforcement officer, with the
      reasonable belief that the defendant is acting as an authorized
      government agent to assist in law enforcement activity, then the
                         UNITED STATES v. BURT                        6625
   Burt filed a motion for a new trial, challenging the district
court’s decision not to give her requested instructions. The
district court denied Burt’s motion. The district court sen-
tenced Burt to concurrent terms of thirty-six months in prison
on both charges, to be followed by thirty-six months of super-
vised release. Burt filed a timely notice of appeal, and this
appeal followed.

II.    Discussion

   [1] We review the district court’s refusal to give a defen-
dant’s jury instructions based on a question of law de novo.
United States v. Eshkol, 108 F.3d 1025, 1028 (9th Cir. 1997).
We review the district court’s findings on whether a defen-
dant’s theories are factually supported for an abuse of discre-
tion. United States v. Gomez-Osorio, 957 F.2d 636 (9th Cir.
1992). A defendant is entitled to instructions relating to a
defense theory for which there is any foundation in the evi-
dence, even though the evidence may be weak, insufficient,
inconsistent, or of doubtful credibility. United States v. Wof-
ford, 122 F.3d 787, 789 (9th Cir. 1997), as amended (Aug. 21,
1997). A mere scintilla of evidence supporting a defendant’s
theory, however, is not sufficient to warrant a defense instruc-
tion. Id.

  Burt contends that the district court erred in refusing to give
her requested apparent public authority jury instruction. Burt
argues that a jury with appropriate instructions should decide
whether her belief, that her conduct on May 28 was for the

      defendant 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 autho-
      rized government agent to assist in law enforcement activity at
      the time of the offense charged in the indictment.
The district court rejected Burt’s requested public authority instruction,
noting that Burt’s theory is “covered by the offense instructions.”
6626                     UNITED STATES v. BURT
sole purpose of gathering information for the agents, was rea-
sonable.

   [2] The district court erred in refusing to give Burt’s
requested jury instructions on the public authority defense. At
trial, Burt testified that the agents told her that as long as she
was gathering information for the agents her actions would
not be illegal. Burt also noted that the agents gave her no
instructions on how to conduct herself. Agent Scott testified
at the evidentiary hearing that Burt “should not be committing
an offense if she’s working for me.” A jury could believe Burt
and interpret Agent Scott’s statement to mean that if Burt was
working for Scott her actions would not be illegal. In addition,
Agent Scott destroyed his notes from his interview with Burt,
which was the only contemporaneous record of the interview.
The magistrate judge correctly noted that “[w]hen govern-
ment agents destroy evidence, they place their own credibility
in serious jeopardy.”

   [3] Although Burt’s evidence may not be strong, Burt has
presented sufficient evidence to justify jury instructions on
her public authority defense. The evidence, taken in its best
light for Burt, could indicate that Burt’s participation in the
May 28 transportation of illegal aliens served the purpose of
Burt gathering information about the crime, which could be
reported to the agents. Burt’s arrest, however, terminated her
opportunity to make such a report. A jury could have deter-
mined, based on the evidence presented, that on May 28 Burt
reasonably believed that she was working for the agents. Burt
was, therefore, entitled to instructions relating to her public
authority defense, and the district court erred in refusing to
instruct the jury on the defense.2
  2
    As noted in footnote 1, the district court, in its pretrial order, rejected
Burt’s other defenses, including Burt’s entrapment by estoppel defense.
The district court also determined that Burt was not entitled to jury
instructions on the entrapment by estoppel defense. We note that the dif-
ference between the defenses of entrapment by estoppel and public author-
                       UNITED STATES v. BURT                       6627
   [4] Based on the instructions given, the jury would have to
find Burt guilty even if the jury believed Burt was working
for the agents, because Burt had the intent to transport illegal
aliens into the United States. Therefore, the district court’s
error in refusing to instruct the jury on Burt’s public authority
defense was prejudicial.

III.   Conclusion

   Accordingly, we REVERSE and REMAND for a new
trial.




ity are “not great;” however, there are some differences between the
defenses. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994). The
defense of entrapment by estoppel is available when “a government offi-
cial commits an error and the defendant relies on [the error] and thereby
violates the law.” Id. The public authority defense is available when “a
government official makes some statement or performs some act and the
defendant relies on it, possibly mistakenly, and commits an offense” by
relying on the government official. Id.
