                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-2674
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellant,
                                  v.

AMEN E. JUMAH,
                                                 Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 04 CR 237—John W. Darrah, Judge.
                          ____________
     ARGUED JANUARY 19, 2007—DECIDED JULY 16, 2007
                          ____________


 Before RIPPLE, KANNE and SYKES, Circuit Judges.
   RIPPLE, Circuit Judge. Amen E. Jumah was convicted by
a jury of knowing possession of a listed chemical, knowing,
or having reasonable cause to believe, that the chemical
would be used to manufacture a controlled substance in
violation of 21 U.S.C. § 841(c)(2). Mr. Jumah’s primary
defense was that he was acting under public authority
when he committed the acts giving rise to the charge. At
trial, Mr. Jumah requested that the jury be instructed that
the Government had the burden of disproving his public
authority defense beyond a reasonable doubt. The district
court agreed to instruct the jury on the elements of the
2                                                No. 06-2674

public authority defense, but denied Mr. Jumah’s request
to further instruct the jury that the Government had the
burden of disproving the defense beyond a reasonable
doubt. Following the jury’s guilty verdict, Mr. Jumah
moved for a new trial on the ground that the jury had
been instructed improperly with respect to the public
authority defense. Acting without the benefit of the
Supreme Court’s most recent guidance, see Dixon v. United
States, 126 S. Ct. 2437 (2006), the district court granted the
motion; it determined that its denial of the requested
instruction had been erroneous and that Mr. Jumah had
suffered prejudice from that error. The Government has
appealed the district court’s decision. For the reasons set
forth in this opinion, we reverse the judgment of the
district court.


                              I
                     BACKGROUND
  Mr. Jumah was a confidential source for the federal Drug
Enforcement Administration (“DEA”). In that role, Mr.
Jumah had assisted the DEA in a number of investiga-
tions into the trafficking of pseudoephedrine, a chemical
used to produce methamphetamine. He had been compen-
sated for his services. Eventually, the DEA found that Mr.
Jumah no longer was providing useful information and,
in late 2002, terminated his status as a confidential source.
Mr. Jumah received his last payment from the DEA in
March 2003. However, after that date, he continued to
approach the DEA regarding payment for past information.
  In February 2004, Mr. Jumah approached Ali Qasem
about a potential pseudoephedrine deal. Mr. Jumah knew
Qasem had been involved in pseudoephedrine trafficking
No. 06-2674                                                 3

in California. However, he apparently was unaware that,
in 2002, Qasem had pleaded guilty in a federal court in
California for his participation in a conspiracy to distribute
pseudoephedrine. Since his plea, Qasem had served as a
confidential source for the DEA. When Mr. Jumah ap-
proached Qasem about a possible drug deal, unaware that
Qasem was a confidential source, Qasem passed the
information along to his handler, Agent Efren Lapuz, who,
in turn, passed the information along to Agent James Jones
in Chicago. Agent Jones was one of the DEA agents with
whom Mr. Jumah had worked prior to his termination as
a confidential source; indeed, Mr. Jumah had continued
to contact him about payment for past information. Nota-
bly, Agent Jones had not asked Mr. Jumah to initiate any
pseudoephedrine deals with Qasem or with anyone else
during the period in question.
  After confirming that the proposed deal was not between
two “friendlies,” i.e., two individuals working as infor-
mants, Agents Jones and Lapuz decided that Qasem should
pursue the deal with Mr. Jumah on behalf of a fictitious
methamphetamine producer. In early February, Qasem and
Mr. Jumah met in Chicago to arrange the deal. As Qasem
was traveling to Chicago for this meeting, Mr. Jumah had
contacted Agent Jones regarding payment for past informa-
tion, but had not mentioned his dealings with Qasem.
When Qasem arrived in Chicago, he and Mr. Jumah had
several meetings, some of which were recorded by the
DEA. The meetings did not culminate in a deal, but
arrangements were made to complete the transaction
in early March.
  On March 2, 2004, Mr. Jumah and Qasem arranged over
the phone to meet that afternoon. After this call, Mr. Jumah
contacted DEA Task Force Officer (“TFO”) John Kosmow-
4                                              No. 06-2674

ski, with whom he had worked before, and informed TFO
Kosmowski that he might be meeting an individual
interested in purchasing pseudoephedrine. He did not
inform TFO Kosmowski that a meeting was scheduled
for that afternoon. Later that afternoon, Mr. Jumah and
Qasem arranged, by telephone, a time and place for their
meeting. Following this call, Mr. Jumah left a message with
TFO Kosmowski that he would be meeting with Qasem.
Mr. Jumah did not go into any details of the planned
meeting.
  When Mr. Jumah met with Qasem that afternoon, Mr.
Jumah provided Qasem 1,016 pills containing pseudo-
ephedrine as a sample for Qasem’s fictitious methamphet-
amine producer. Later that afternoon, Qasem contacted
Mr. Jumah over the telephone to arrange a deal to pur-
chase three hundred cases of pseudoephedrine pills. The
transaction was scheduled to take place that evening at
the Harrah’s casino in Joliet, Illinois. DEA agents moni-
tored the activity by placing a recording device on Qasem
and by surveilling Mr. Jumah when he left Qasem at
the casino and took Qasem’s car to obtain the pseudo-
ephedrine. When Mr. Jumah returned to the casino, he
told Qasem that the pseudoephedrine was in the trunk of
Qasem’s car, and that he would bring the car by the front
of the casino to show Qasem the pseudoephedrine. Mr.
Jumah then returned to Qasem’s car where he was ar-
rested. The “pseudoephedrine” found in Qasem’s car
turned out to be rock salt.
  After Mr. Jumah was arrested, he claimed that he was
acting on the authority of TFO Kosmowski and that he
had received the sample pseudoephedrine pills that he
had given Qasem from TFO Kosmowski. Mr. Jumah later
admitted that he had stolen the pills from the DEA several
No. 06-2674                                               5

months earlier. Mr. Jumah was charged with violation of
21 U.S.C. § 841(c)(2) for knowing possession of a listed
chemical, knowing, or having reasonable cause to believe,
that the chemical will be used to manufacture a con-
trolled substance.
  At trial, Mr. Jumah’s principal defense was that he had
been acting under public authority because he had been
acting for the DEA in arranging the deal with Qasem. The
Government objected to the submission of any instruction
on public authority to the jury, but the district court
overruled the objection because it believed that adequate
evidence had been introduced to put the defense in issue.
The Government then proposed the Seventh Circuit pattern
jury instruction for the public authority defense, along
with an additional instruction reciting that the Govern-
ment did not bear the burden of disproving the defense.
Although Mr. Jumah offered no instructions of his own,
he objected to the pattern jury instruction; he maintained
that the jury should be instructed on the defense in the
same instruction that contained the elements of the offense.
He also requested that the jury be instructed that the
Government had the burden to disprove the defense
beyond a reasonable doubt. The district court, however,
rejected Mr. Jumah’s requested instructions and took the
view that the Government was not required to disprove
the defense beyond a reasonable doubt. R.135-6 at 444.
For reasons that are not clear from the record, the Gov-
ernment then withdrew its requested instruction that it
did not bear the burden of disproving the defense. Id.
at 457.
 The jury was instructed on the elements of the offense
with which Mr. Jumah was charged, the Government’s
burden with respect to proof of guilt and the elements of
6                                                    No. 06-2674

the public authority defense. More precisely, the jury was
instructed that, to find Mr. Jumah guilty, the Government
was required to prove beyond a reasonable doubt that
Mr. Jumah had “knowingly or intentionally possessed or
distributed pseudoephedrine” and that he “possessed or
distributed pseudoephedrine knowing or having rea-
sonable cause to believe that it would be used to manu-
facture methamphetamine.” Id. at 520. Immediately
following this elements instruction, the court instructed
the jury on the public authority defense. Following the
Seventh Circuit pattern jury instruction nearly verbatim,
the court stated, in pertinent part, that “[a] defendant who
acts in reliance on public authority does not act
knowingly.”1 Id. at 521. The jury returned a guilty verdict.


1
  The Seventh Circuit pattern jury instruction for the public
authority defense, in whole, reads:
      A defendant who acts in reliance on public authority
    does not act knowingly [or with the intent to (state intent
    requirement of statute, if any)], and should be found not
    guilty.
      A defendant acts under public authority if:
        (1) that defendant is affirmatively told that his/her
        conduct would be lawful;
        (2) the defendant is told this by an official of the [United
        States] government; [and]
        (3) the defendant actually relies on what the official
        tells him/her in taking the action[; and,
        (4) the defendant’s reliance on what he/she was told by
        the official is reasonable in light of the circumstances].
      In considering whether a defendant actually relied on
    representations by an official that his/her conduct would
                                                  (continued...)
No. 06-2674                                                       7

  Following trial, Mr. Jumah filed a motion requesting a
new trial or entry of a judgment of acquittal. He argued
that the court had erred by failing to instruct the jury that
the Government was required to disprove the public
authority defense beyond a reasonable doubt. The
court concluded that its earlier ruling was in error and
that the Government was required to disprove the public
authority defense beyond a reasonable doubt. The court
further determined that the error was not harmless.
Consequently, it granted Mr. Jumah’s motion for a new
trial.


                                 II
                          DISCUSSION
                                 A.
  The allocation of the burden of proof on affirmative
defenses has been a vexing issue in the courts of appeals in
recent times. The process has created, understandably,
difficult problems for the district courts.
  In United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996) (per
curiam), we held that, absent an act of Congress specifi-
cally allocating the burden of persuasion for an affirma-
tive defense on the defendant, the burden rests on the


1
    (...continued)
       [be] lawful, you should consider all of the circumstances of
       their discussion, including the identity of the official, the
       point of law discussed, the nature of what the defendant
       told, and was told by, the official, and whether that reli-
       ance was reasonable.
Seventh Circuit Pattern Criminal Jury Instr. 6.07 (1999).
8                                                      No. 06-2674

Government to disprove the defense beyond a reason-
able doubt once the defendant meets its burden of produc-
tion to put the defense in issue. Id. at 1186. Adhering to
our holding in Talbott, the district court concluded that,
because no federal statute allocated the burden of persua-
sion for the public authority defense to the defendant,
the Government was required to disprove Mr. Jumah’s
public authority defense beyond a reasonable doubt. The
court therefore concluded that Mr. Jumah was entitled
to an instruction to that effect and the earlier denial had
been in error.
  After the district court had ordered a new trial and had
denied the Government’s motion to reconsider, the Su-
preme Court decided Dixon v. United States, 126 S. Ct. 2437
(2006). The Court granted certiorari in Dixon to resolve a
division of authority in the courts of appeals as to wheth-
er, absent an act of Congress on the issue, criminal defen-
dants were required to prove by a preponderance of the
evidence the elements of an affirmative defense that did
not negate an element of the offense.2 Id. at 2440. The Court
held that there was no constitutional requirement that an
affirmative defense that did not controvert an essential
element of an offense be disproved beyond a reasonable



2
   Although the facts of Dixon v. United States, 126 S. Ct. 2437
(2006), related to the affirmative defense of duress, it is clear that
the Court’s holding was not limited to this defense. The Court
cited our decision in Talbott v. United States, 78 F.3d 1183 (7th
Cir. 1996) (per curiam), as an exemplar of cases in conflict with
the decision of the Fifth Circuit. Dixon, 126 S. Ct. at 2440 n.1.
Talbott itself did not involve the affirmative defense of duress.
Rather, the defense raised in Talbott was self-defense. Talbott,
78 F.3d at 1185.
No. 06-2674                                                9

doubt. Id. at 2442. The Court further held that, absent
evidence of contrary congressional intent in the structure
or history of the statute, federal courts should presume
that Congress intended that they follow established
common law rules related to affirmative defenses when
applying new criminal statutes. Id. at 2445-46. Thus, Dixon
abrogates Talbott and establishes that, when a statute is
silent on the question of affirmative defenses and when the
affirmative defense does not negate an essential element
of the offense, we must presume that the common law
rule that places the burden of persuasion on the defendant
reflects the intent of Congress.


                             B.
  Our immediate task is to determine: (1) whether the
public authority defense negates an element of the
charged offense that the Government must prove beyond
a reasonable doubt and (2) whether Congress intended
to alter the common law rules governing the public au-
thority defense in prosecutions for violations of 21 U.S.C.
§ 841(c)(2).


                             1.
  We first turn to whether the public authority defense
negates an element of the offense with which Mr. Jumah
was charged. Commentators have identified several
categories of “defenses.” These categories include failure of
proof “defenses” and affirmative defenses based on
justification and excuse. 2 Wayne R. LaFave, Substantive
Criminal Law § 9.1(a) (2d ed. 2003) [hereinafter “LaFave”].
Failure of proof “defenses” do not provide an independent
10                                                  No. 06-2674

basis for escaping criminal liability, but arise when a
defendant introduces evidence that tends to show that the
prosecution has failed to prove some element of the
charged offense beyond a reasonable doubt, such as intent.
Id. at § 9.1(a)(1). A failure of proof “defense” does not
excuse conduct, but puts the prosecution to its burden of
proving each element of an offense beyond a reasonable
doubt. Affirmative defenses of justification and excuse,
on the other hand, excuse conduct otherwise punishable
without controverting the evidentiary sufficiency of the
Government’s proof of the elements of the underlying
offense.3 See Dixon, 126 S. Ct. at 2441. Affirmative de-
fenses of justification and excuse do not negate criminal
intent when the required mental state is that the de-
fendant acted knowingly. Id. at 2442.
  The public authority defense is an affirmative defense
of excuse derived from the common law. See United States


3
   The principal distinction between justification and excuse
lies in the concerns animating the affirmative defense. See 2
Wayne R. LaFave, Substantive Criminal Law § 9.1(a)(4) (2d ed.
2003) [hereinafter “LaFave”]. Justification affirmative defenses
focus on special circumstances under which the harm caused
by the defendant’s actions is outweighed by the risk of a
greater harm. Id. § 9.1(a)(3). Such defenses include self-defense,
defense of others and necessity. See Paul H. Robinson, Criminal
Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 242
(1982) [hereinafter “Robinson”]. Affirmative defenses of excuse,
on the other hand, rest on the conclusion that, because of a
particular disability or impairment, it is inappropriate to
hold the defendant criminally responsible for the otherwise
unlawful conduct. See LaFave § 9.1(a)(4). Duress, somnam-
bulism, infancy and mistake are all examples of defenses
grounded in excuse. See Robinsion at 242-43.
No. 06-2674                                                      11

v. Pitt, 193 F.3d 751, 756 (3d Cir. 1999). It is grounded in the
principle that prosecuting an individual who acts in
reliance upon official statements that one’s conduct is
lawful offends due process.4 Like the statute involved in



4
   A closely related affirmative defense is the defense of entrap-
ment by estoppel, an affirmative defense also grounded in the
Due Process Clause of the Fifth Amendment. Entrapment by
estoppel provides an affirmative defense for action taken in
reasonable reliance on assurances by government officials that
the conduct is legal. See United States v. Howell, 37 F.3d 1197,
1204 (7th Cir. 1994). We have questioned the meaningfulness
of the difference between the two defenses. See United States v.
Baker, 438 F.3d 749, 753 (7th Cir. 2006). To the extent the distinc-
tion is meaningful, the main difference is that, in the case of the
public authority defense, the defendant engages in conduct at
the request of a government official that the defendant knows
to be otherwise illegal, while in the case of entrapment by
estoppel, because of the statements of an official, the defendant
believes that his conduct constitutes no offense. See 53 Am. Jur.
Proof of Facts 3d 249 Proof of Defense of Entrapment by Estoppel
§ 20 (1999). Neither defense implicates the defendant’s mens
rea, except in the rare case in which mistake of law negates the
required mental state of the offense. In such case the defense of
entrapment by estoppel also could constitute a failure of proof
“defense” because the government agent’s misstatement of
the law would lead the defendant to believe that there was
nothing criminal about his conduct under any circumstances. See
generally Cox v. Louisiana, 379 U.S. 559, 571 (1965) (holding that
it would offend due process to permit the state to sanction
individuals from demonstrating in an area where police told
them they could hold their demonstration); Raley v. Ohio, 360
U.S. 423, 437-39 (1959) (holding that it would offend due process
to permit criminal prosecution of an individual for invoking a
                                                     (continued...)
12                                                No. 06-2674

Dixon, the required mental state for an offense under 21
U.S.C. § 841(c)(2) is that the defendant act “knowingly.”
Generally, the prosecution meets its burden with respect
to this mental state when it proves beyond a reasonable
doubt that the defendant had knowledge of the facts
constituting the offense. See Dixon, 126 S. Ct. at 2441. As
noted above, common law affirmative defenses of excuse
do not controvert this mental state. Id. at 2442. Thus, the
public authority defense, as an affirmative defense of
excuse, does not controvert an essential element of the
offense with which Mr. Jumah was charged and does not,
of its own force, place the burden on the Government to
disprove the defense beyond a reasonable doubt in order
to prove his guilt.
  At common law, the burden of proof for all affirmative
defenses of justification and excuse rests on the defendant.
Id. at 2443 (citing Patterson v. New York, 432 U.S. 197, 202
(1977)). Because the public authority defense is an affirma-
tive defense based on excuse, we must conclude that
Congress intended the burden to rest on the defendant
to prove the defense by a preponderance of the evidence.


                              2.
  Mr. Jumah was charged with violating 21 U.S.C.
§ 841(c)(2). Mr. Jumah points to nothing in the structure


4
  (...continued)
privilege against self-incrimination in hearings before a state
legislative commission after having been assured of his right
to do so by the chairman, members and counsel of the com-
mission); Howell, 37 F.3d at 1204 (stating that the defense of
entrapment by estoppel is grounded in the Due Process Clause
of the Fifth Amendment).
No. 06-2674                                                13

or history of 21 U.S.C. § 841(c)(2) that suggests that Con-
gress intended to depart from the common law rules
related to affirmative defenses. Thus, we must presume
that Congress intended the federal judiciary to follow
established common law rules with respect to affirmative
defenses raised against a charged violation of 21 U.S.C.
§ 841(c)(2).


                             C.
  Ordinarily, we review a district court’s decision regard-
ing a motion for a new trial for an abuse of discretion.
United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005).
However, because the Government withdrew its pro-
posed jury instruction on the burden of proof and did not
argue, in its opposition to Mr. Jumah’s motion for a
new trial, that the burden of proof on the public au-
thority affirmative defense rests on the defendant, it
forfeited this argument, and, consequently, our review
is limited to plain error. See United States v. Linwood, 142
F.3d 418, 422 (7th Cir. 1998). Under the plain error stan-
dard, the party asserting the error bears the burden of
persuasion on the following points: (1) that there is error,
(2) that the error is plain, and (3) that the error “affects
substantial rights.” See United States v. Olano, 507 U.S. 725,
732-34 (1993). Further, we may not exercise our discre-
tion to consider forfeited error “unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’ ” Id. at 732 (quoting United States
v. Young, 470 U.S. 1, 15 (1985)) (some internal quotation
marks omitted).
  Our analysis in the preceding section establishes that
the district court’s holding, in reliance on our decision in
Talbott, that the Government had the burden of disprov-
14                                                  No. 06-2674

ing Mr. Jumah’s public authority defense beyond a rea-
sonable doubt was error. Given the Government’s with-
drawal of its tendered instruction on the allocation of the
burden of proof on the defense of public authority, we
must determine, however, whether this error was plain.
When, at the time of the district court proceedings, the
prevailing circuit law was settled and that law is clearly
contrary to the law at the time of appeal, “it is enough that
the error be ‘plain’ at the time of appellate consideration.”
Johnson v. United States, 520 U.S. 461, 468 (1997); United
States v. Vincent, 416 F.3d 593, 603 (7th Cir. 2005). In light
of the intervening Supreme Court decision in Dixon, the
district court’s error was plain.
  Turning to the third prong of our plain error analysis, an
error affects a party’s substantial rights if it is prejudicial in
the sense that it affects the outcome of the proceedings.
Vincent, 416 F.3d at 603. Here, the prejudicial effect of the
error is clear. At trial, the district court stated that the
Government was not required to disprove the public
authority defense beyond a reasonable doubt. In response
to Mr. Jumah’s motion for a new trial, the court later
reconsidered this conclusion and held that this ruling had
been in error and that the Government was required to
disprove the defense beyond a reasonable doubt. This later
ruling, not the original ruling at trial, was in error. The
district court would not have granted Mr. Jumah’s motion
for a new trial had it had the benefit of the Supreme
Court’s decision in Dixon. This error prejudiced the Gov-
ernment by depriving it of a jury verdict rendered by a
properly instructed jury.
  If an error is plain and it affects a party’s substantial
rights, we shall exercise our discretion and reverse the
district court’s decision if “the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceed-
No. 06-2674                                               15

ings.’ ” Olano, 507 U.S. at 732 (quoting Young, 470 U.S. at
15) (some internal quotation marks omitted). Here, permit-
ting the district court’s decision to grant a new trial to
stand would result in a new trial even though the instruc-
tions given in the first trial were not erroneous. Allowing
a new trial following an error-free trial based solely on
plain error in granting the new trial compromises the
“integrity or public reputation” of the judicial proceed-
ings and invites justified public scorn. Johnson, 520 U.S. at
470 (quoting Roger J. Traynor, The Riddle of Harmless Error
50 (1970)).


                             D.
  Mr. Jumah further submits that, even if Dixon controls
this case, he was entitled to a new trial. More precisely,
Mr. Jumah claims that the district court failed to instruct
the jury that the defendant bears the burden of proving
the affirmative defense of public authority by a prepon-
derance of the evidence. Left without any particular
guidance with respect to the standard of proof on the
affirmative defense, the jury may have concluded, sub-
mits Mr. Jumah, that he had to prove that defense beyond
a reasonable doubt. The jury must have interpreted the
instructions in this way, he continues, because the only
instructions regarding burden of proof placed the burden
on the Government to prove the elements of the offense
beyond a reasonable doubt.
  Mr. Jumah did not request an instruction stating that the
burden was on him to prove the defense by a preponder-
ance of the evidence. We therefore must review this
contention for plain error. See United States v. Mutuc, 349
F.3d 930, 935 (7th Cir. 2003). Accordingly, Mr. Jumah must
establish that failure to give the instruction he now re-
16                                                    No. 06-2674

quests was (1) error, (2) that was plain and (3) that
such failure affected his substantial rights. See Olano, 507
U.S. at 732-34.
  We shall assume, arguendo, that, on the basis of the
foregoing discussion, the first two parts of the plain error
analysis are met.5 In short, we shall assume that failure to


5
   We shall assume that the district court’s failure to instruct the
jury that Mr. Jumah had the burden to prove the public author-
ity defense by a preponderance of the evidence was error.
Although “[a] defendant is entitled to have the jury consider any
theory of defense supported by law and evidence,” he is not
entitled to any particular jury instruction regarding that theory.
United States v. Mutuc, 349 F.3d 930, 935 (7th Cir. 2003); see also
United States v. Irorere, 228 F.3d 816, 825 (7th Cir. 2000) (applying
the same factors in the context of plain error review). The dis-
trict court need not submit a particular theory of the defense
instruction “if its essential points are covered in another
instruction.” United States v. Manjarrez, 258 F.3d 618, 626 (7th Cir.
2001).
  The instruction that Mr. Jumah now contends that the district
court should have given the jury is a correct statement of the
law under the Supreme Court’s decision in Dixon. As our earlier
discussion demonstrates, Dixon makes clear that the defendant
has the burden of establishing the public authority defense by
a preponderance of the evidence. See Dixon, 126 S. Ct. at 2447-
48 (holding that, when Congress is silent on the issue of the
burden of proof applicable to a common law affirmative defense
that does not negate an element of the offense, we presume
Congress intended the defendant to bear the burden of proof of
the defense by a preponderance of the evidence).
  We also shall assume, for purposes of the present analysis,
that the district court correctly concluded that the public
                                               (continued...)
No. 06-2674                                                17

give the instruction allocating the burden of proof on the
public authority instruction was error and that the error
was plain. We shall focus on whether the absence of the
instruction Mr. Jumah requests affected his substantial
rights. Mr. Jumah must show “ ’a reasonable probability
that, but for [the error claimed], the result of the proceed-
ing would have been different.’ ” United States v. Dominguez
Rodriguez, 542 U.S. 74, 81-82 (2004) (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985)) (stating that Bagley
provides a sensible model for determining whether
error “affects substantial rights” when applying Olano).
  To assist the reader, we pause to set out the instruc-
tions on the elements of the offense and the affirmative
defense of public authority as given by the district court:
      The defendant is charged in the indictment with
    knowingly and intentionally possessing and distribut-
    ing a listed chemical, namely, approximately 1,016
    tablets of pseudoephedrine, a List 1 chemical, know-
    ing and having reasonable cause to believe the listed
    chemical would be used to manufacture a controlled
    substance, namely, mixtures containing a detectable
    amount of methamphetamine, a Schedule II narcotic
    drug controlled substance.
      To sustain the charge of possessing or distributing
    pseudoephedrine, the government must prove the
    following propositions:


5
  (...continued)
authority defense was fairly raised by the evidence at trial.
Likewise, the requested instruction was not part of the charge
to the jury, and no other instruction addresses Mr. Jumah’s
burden with respect to the public authority defense.
18                                                 No. 06-2674

       First, the defendant knowingly or intentionally
     possessed or distributed pseudoephedrine; second, the
     pseudoephedrine is a listed chemical; and [] third, the
     defendant possessed or distributed pseudoephedrine
     knowing or having reasonable cause to believe that it
     would be used to manufacture methamphetamine.
       It does not matter whether [the] defendant knew the
     pseudoephedrine was a listed chemical. It is sufficient
     [that] the defendant knew or had reasonable cause to
     believe that it would be used to manufacture metham-
     phetamine or some other prohibited drug.
       If you find from your consideration of all of the
     evidence that each of these propositions has been
     proven beyond a reasonable doubt, then you should
     find the defendant guilty.
      A defendant who acts in reliance on public authority
     does not act knowingly and should be found not guilty.
       A defendant acts under public authority if, one, the
     defendant is affirmatively told that his conduct
     would be lawful; two, the defendant is told this by an
     official of the government; three, the defendant actually
     relies on what the official tells him in taking the action;
     and, four, the defendant’s reliance on what he was told
     by the official is reasonable in light of the circum-
     stances.
       In considering whether defendant—a defendant
     actually relied on representations by an official that his
     conduct would be lawful, you should consider all of
     the circumstances of their discussion, including the
     identity of the official, the point of law discussed, the
     nature of what the defendant was told,—let me say that
     again.
No. 06-2674                                             19

      In considering whether a defendant actually relied
    on representations by an official that his conduct
    would be lawful, you should consider all of the circum-
    stances of their discussion, including the identity of
    the official, the point of law discussed, the nature of
    what the defendant told and was told [by] the official,
    and whether that reliance was reasonable.
R.136-5 at 520-22.
  As Mr. Jumah correctly points out, the district court did
not instruct the jury about the allocation of the burden of
proof for the public authority defense. He submits that
the absence of such an instruction worked to his prej-
udice because, in its absence, the jury not only may have
placed the burden of proof upon him but also may have
assumed that he had to prove that defense beyond a
reasonable doubt.
  We cannot accept this argument. The wording and the
placement of the public authority defense instruction
makes it very likely that the jury assumed that the Gov-
ernment had the burden of disproving the public au-
thority defense. Notably, the only instruction relating to
burden of proof addressed the Government’s burden to
prove each element of the offense beyond a reasonable
doubt. Among the elements instructions was the admoni-
tion that the Government was required to prove that Mr.
Jumah had acted knowingly. The public authority instruc-
tion followed immediately the elements instruction; it
stated that Mr. Jumah could not have acted knowingly if
he had acted on the reasonable belief, induced by the
representation of a government official, that he was acting
under public authority.
  After Dixon, the court’s instructions would not be cor-
rect. Dixon makes clear that the public authority affirma-
20                                               No. 06-2674

tive defense does not negate the knowledge element of
the offense, see Dixon, 126 S. Ct. at 2441-42, and that the
defendant must establish that defense by a prepon-
derance of the evidence, see id. at 2447-48. Nevertheless,
a jury faithfully following the instructions, as given by the
district court, would have understood, in all likelihood,
that the Government had the burden of disproving the
affirmative defense of public authority in order to prove,
beyond a reasonable doubt, that the knowledge element
of the offense was established. In short, Mr. Jumah re-
ceived, in all likelihood, an unwarranted benefit from the
court’s instructions. Indeed, given the evidence of record,
if the district court had had the benefit of Dixon, it well
might have determined that Mr. Jumah had not sub-
mitted sufficient evidence to place this issue before the
jury. We must conclude that there is no reasonable proba-
bility that the result of the proceeding would have been
different had the jury been instructed in accordance
with the principles now established by Dixon. Dominguez
Rodriguez, 542 U.S. at 81-82 (citing Bagley, 473 U.S. at 682).
Therefore, Mr. Jumah has not met his burden of demon-
strating that the failure to give the requested instruction
affected his substantial rights.


                        Conclusion
  For the reasons set forth in this opinion, we hold that it
was plain error for the district court to grant Mr. Jumah a
new trial. Further, under the circumstances presented
here, it was not plain error for the district court to fail to
instruct the jury that the burden rested on Mr. Jumah to
establish the elements of the public authority defense by a
preponderance of the evidence. Accordingly, the deci-
No. 06-2674                                              21

sion of the district court is reversed and remanded with
instructions to reinstate the jury’s verdict.
              REVERSED and REMANDED with INSTRUCTIONS

A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-16-07
