                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.
ROSANNA SUE NICHOLS FULCHER,               No. 00-4167
a/k/a Rose Nichols, a/k/a Sue
Nichols, a/k/a R. S. Nichols, a/k/a
Rosanna Nichols, a/k/a Bo,
                Defendant-Appellant.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.
ROSANNA SUE NICHOLS FULCHER,
a/k/a Rose Nichols, a/k/a Sue
Nichols, a/k/a R. S. Nichols, a/k/a        No. 00-4200
Rosanna Nichols, a/k/a Bo; MICHAEL
EDWARD FULCHER, a/k/a Michael
Ferguson; ETHEL VEST FULCHER,
a/k/a Zelda Vest, a/k/a O.C. Vest,
a/k/a Colin Vest, a/k/a Ann Smith,
               Defendants-Appellees.
                                        
2                     UNITED STATES v. FULCHER



UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 00-4219
MICHAEL EDWARD FULCHER, a/k/a
Michael Ferguson,
              Defendant-Appellant.
                                       
            Appeals from the United States District Court
          for the Western District of Virginia, at Roanoke.
               Jackson L. Kiser, Senior District Judge.
                            (CR-98-102)

                      Argued: March 1, 2001

                      Decided: May 17, 2001

    Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.



Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Niemeyer and Judge Williams joined.


                            COUNSEL

ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia; Charles David Whaley, MOR-
CHOWER, LUXTON & WHALEY, Richmond, Virginia, for
Appellants. Joseph William Hooge Mott, Assistant United States
Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: David P.
Baugh, Richmond, Virginia, for Appellant Ethel Fulcher. Robert P.
Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.
                      UNITED STATES v. FULCHER                        3
                              OPINION

LUTTIG, Circuit Judge:

   Defendants Ethel, Michael, and Rosanna Fulcher were convicted
by a jury of various money laundering and drug violations. Following
trial, a government agent wrote an ex parte letter to the district court
explaining that he may have led the defendants to believe that they
were authorized to conduct the entire operation on behalf of the gov-
ernment. The district court granted a new trial to the defendants pur-
suant to Fed. R. Crim. P. 33, holding that the newly discovered
evidence satisfied every requisite element for a new trial. For the rea-
sons that follow, we affirm.

                                   I.

   This case arises out of the pervasive presence of drugs at Bland
Correctional Center ("BCC"), an institution operated by the Virginia
Department of Corrections. The network of drug distribution at BCC
was extensive, involving inmates, prison officials, and even the rela-
tives and girlfriends of inmates. The drug operation managed by
Michael Fulcher ("Michael") was no exception.

   Michael purchased his supply of marijuana from various prison
officials, including prison guards and counselors. J.A. 413-14, 538,
554-55. He would then divide the drugs he received into smaller
quantities — most often teaspoon-sized servings — for distribution to
inmates at BCC. J.A. 265, 773. Since his customers were prohibited
from using cash while incarcerated, inmates purchased the drugs with
money orders written on their inmate trust accounts, remitting pay-
ment to a number of individuals located outside the prison, including
Rosanna Fulcher ("Rosanna"), Michael’s wife, and Ethel Fulcher
("Ethel"), Michael’s mother. J.A. 266-67, 557, 783-84, 1078. The
funds collected would then be used to purchase additional marijuana
from prison officials, beginning the cycle anew.

   The appellants, Michael and Rosanna, were charged in a 47-count
indictment — along with 22 other defendants — with engaging in
drug and money laundering conspiracies, as well as substantive
4                         UNITED STATES v. FULCHER
                      1
counts of the same. The jury convicted Rosanna of a money launder-
ing conspiracy and ten substantive counts of money laundering. J.A.
856-60. Michael was convicted of drug and money laundering con-
spiracies, a continuing criminal enterprise offense ("CCE"), and 17
substantive money laundering counts. J.A. 861-67.

   On the eve of sentencing, the district court received an ex parte let-
ter from Special Agent Donald O. Lincoln, Jr., of the Drug Enforce-
ment Administration ("DEA"). J.A. 1074-79. In the letter, Lincoln
explained that he rejected Michael’s request to formally investigate
the distribution of drugs at BCC for two reasons: (1) it would be
impossible to ensure his safety from other inmates and prison guards
while he was incarcerated; and (2) the amount of marijuana was "so
minuscule that I advised him that there was no way that we could jus-
tify a Federal investigation on what would at best be misdemeanor
level quantities." J.A. 1074.

   Although Lincoln never formally granted permission for Michael
to initiate a formal drug investigation, Lincoln nonetheless stated his
concern that he, along with state law enforcement officers working
with the DEA, may have provided Michael with the mistaken impres-
sion that he had tacit approval to investigate drug dealing at BCC.
J.A. 1075. Specifically, Lincoln explained:

        It has come to my attention that in my absence Mr. Fulcher
        would periodically talk to Deputy Kenny Parker of the Bote-
        tourt County Sheriff’s Office, who was working in the DEA
        Office, serving as a DEA Task Force Officer at that time. In
        these conversations Mr. Fulcher told Deputy Parker what he
        was working on. Deputy Parker, believing that the operation
        had already been approved by me, discussed a number of
        options with Mr. Fulcher. One of these involved arranging
        for one or more of the guards who were involved to make
        an attempted pickup of marijuana from Deputy Parker, in an
        undercover capacity, in Botetourt County. Under those cir-
        cumstances the case could have been taken to State Court in
    1
   Ethel — who joins this case only to oppose the government’s appeal
of the district court’s grant of a new trial — was convicted of a money
laundering conspiracy and nine substantive counts of money laundering.
                       UNITED STATES v. FULCHER                        5
    Botetourt or, if it developed into something interstate or sub-
    stantial it could be brought to Federal Court. Deputy Parker
    discussed this potential operation with Sheriff Reed Kelly,
    and both of them recall the conversations. In addition Dep-
    uty Parker reminded me of a conversation he had with me
    concerning setting up a potential sting operation against a
    prison guard, to go down at a Botetourt County truck stop.

J.A. 1074-75. Lincoln also stated in the letter that during his numer-
ous telephone conversations with Michael over a three-year period,

    [t]here were indeed times when I was in a hurry to get him
    off the phone due to other commitments. If I said anything
    in haste which led him to believe he was "covered" it may
    be the proximate cause of all of this. I honestly do not recall
    ever saying anything to that effect, but if Task Force Agent
    Parker and Sheriff Kelly also believe that I did, then I must
    lend credibility to the possibility. I don’t know what if any
    consideration can be given to all that I have related here,
    your Honor, but I felt it incumbent on me to state the facts
    as I now know them.

J.A. 1079.

   On the basis of the letter, appellants filed a motion (which Ethel
joined), asserting that they were entitled to a new trial on the basis of
newly discovered evidence pursuant to Fed. R. Crim. P. 33. The dis-
trict court held an evidentiary hearing, in which both Lincoln and
Deputy Parker testified. Lincoln stated that David Fulcher, Michael’s
father, told him that Michael and Parker had spoken on several occa-
sions concerning a possible sting operation. J.A. 927, 933, 935-36.
According to Lincoln, Parker told him that he had talked with
Michael several times regarding a possible drug operation, and that
Parker had discussed a number of options with Michael about how to
set up a sting operation involving prison officials. J.A. 936-39. On
redirect, Lincoln acknowledged that, since his testimony at the pre-
trial hearing, his opinion regarding whether the Fulchers may have
believed that they were authorized to conduct the operation had
changed:
6                        UNITED STATES v. FULCHER
        Q All right. Now during your July testimony, June testi-
          mony [sic] in the courtroom, I asked you a question
          about, "Did you ever do anything that in your estima-
          tion could have been construed as permission to con-
          duct this investigation?" And do you recollect your
          answer as being, "No"?

        A I probably did say that, and I guess that’s — . . .

        Q Are you now of the opinion that you could have been
          communicating to him and his mother that if the case
          was bigger it would be prosecuted and he could get his
          sentence reduced?

        A I don’t know, but, yes, that’s my primary concern at this
          point.

        Q Do you believe you might have?

        A Yes. And if not me, then the fact that he talked to the
          other people in my office or to other people in my office
          [sic] and he felt that they somehow blessed it, then there
          is the very real possibility, especially from the part of
          Mrs. Fulcher.

J.A. 984-85, 990-91 (emphases added).

   On the basis of the letter and the testimony adduced at the evidenti-
ary hearing, the district court granted the motion for a new trial, hold-
ing that the newly discovered evidence was material because it was
directly related to the public authority defense2 and to whether the
defendants possessed the requisite mens rea for their crimes. J.A.
1054, 1056-57. The district court also denied appellants’ motions for
judgment of acquittal pursuant to Fed. R. Crim. P. 29. Appellants
filed a timely notice of appeal challenging their convictions, and the
    2
   Only Michael and Ethel filed the requisite notices under Fed. R. Crim.
P. 12.3(a)(1) indicating that they would be relying on the public authority
defense. J.A. 75, 113.
                      UNITED STATES v. FULCHER                        7
government cross-appeals the district court’s decision to grant a new
trial.

                                  II.

  The government argues on appeal that the district court erred in
granting a new trial to defendants on the basis of newly discovered
evidence.

   Under Fed. R. Crim. P. 33, "[o]n a defendant’s motion, the court
may grant a new trial to that defendant if the interests of justice so
require." In determining whether a new trial should be granted under
Rule 33 for newly discovered evidence, this court utilizes a five-part
test:

    (a) the evidence must be, in fact, newly discovered, i.e., dis-
    covered since the trial; (b) facts must be alleged from which
    the court may infer diligence on the part of the movant; (c)
    the evidence relied on must not be merely cumulative or
    impeaching; (d) it must be material to the issues involved;
    and (e) it must be such, and of such nature, as that, on a new
    trial, the newly discovered evidence would probably pro-
    duce an acquittal.

United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1989). Without
ruling out the possibility that a rare example might exist, we have
never allowed a new trial unless all five elements were established.
See United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).

   The district court made extensive findings on each of the elements
of the Custis test and, of course, we review for an abuse of discretion
the district court’s decision to grant a new trial based on those find-
ings. Singh, 54 F.3d at 1190. Under the abuse of discretion standard,
"this Court may not substitute its judgment for that of the district
court; rather, we must determine whether the court’s exercise of dis-
cretion, considering the law and the facts, was arbitrary or capri-
cious." United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
Since the government challenges the district court’s application of
each of the Custis elements to the facts of this case, we review each
in turn.
8                      UNITED STATES v. FULCHER
                                   A.

  The first element of Custis is whether the evidence is, "in fact,
newly discovered." 988 F.2d at 1359. The district court held that Lin-
coln’s letter was "newly discovered" since it mentioned new facts that
added a "dimension to Lincoln’s testimony that was not known
before." J.A. 1055. We agree.

   For instance, during the pre-trial motions hearing, Lincoln unequiv-
ocally testified that he did not say or do anything that could have been
construed by Michael as permission to conduct an investigation at
BCC under any circumstances, primarily due to concerns about
Michael’s safety while incarcerated. J.A. 231-32, 248-49. In contrast,
at the post-trial evidentiary hearing, Lincoln testified that he and other
members of his office might have communicated to Michael that if
the case were bigger and involved a larger amount of drugs, the gov-
ernment might be interested in pursuing it further. J.A. 990-91; see
also J.A. 1051-52 ("[N]ew to Lincoln’s testimony is his assertion that,
when first discussing with Michael the investigative work he had
completed on the BCC marijuana ring, Michael told him that he had
been trying to collect evidence the DEA might be more interested in
by finding interstate connections and by working his way up the pris-
on’s chain of command."). As the district court found, the latter testi-
mony "indicate[d] that Lincoln made statements to Michael and Ethel
that he failed to tell this court about before the trial." J.A. 1051.

   It is undisputed that this new testimony was not within the defen-
dants’ possession prior to or during trial, and that it only came to light
when Lincoln himself — of his own accord — decided to write an ex
parte letter to the district court on the eve of sentencing. Because the
evidence contained in the letter and presented at the post-trial hearing
was not discovered until after the trial, the district court did not abuse
its discretion in holding that it constituted "newly discovered evi-
dence." Singh, 54 F.3d at 1190 (stating that "newly discovered evi-
dence" means "evidence discovered since the trial").

                                   B.

   The second element of Custis is whether there are facts alleged
"from which the court may infer diligence on the part of the movant."
                       UNITED STATES v. FULCHER                         9
988 F.2d at 1359. The district court specifically found that "based on
the substance and style of Lincoln’s pre-trial testimony, any more
specific questioning on this matter by the defendants would not have
produced the same helpful evidence now before the court." J.A. 1052.
The court reached that conclusion primarily because "Lincoln’s pre-
trial testimony was particularly unfavorable to the Fulchers by insist-
ing that there was nothing ambiguous about his refusal to allow
Michael to investigate the matter." J.A. 1053.

   The district court’s finding is amply supported by the record. The
defendants engaged in a lengthy cross-examination of Lincoln during
the pre-trial hearing, and as the district court correctly noted, there is
simply no indication from the record that a more probing cross-
examination would have elicited any of the facts that came to light
following the trial. In fact, the record supports an inference to the con-
trary, since Lincoln stated in his letter that he "testified as truthfully
and accurately as possible" at the pre-trial hearing and that any
change in his testimony could be attributed, at least in part, to facts
"coming to [his] attention" through his conversations with Deputy
Parker and David Fulcher in the months following the hearing. J.A.
1074.

   Therefore, we cannot say that the district court abused its discretion
in concluding that there were facts from which it could infer due dili-
gence on the part of the defendants.

                                   C.

  The third element of Custis is whether the newly discovered evi-
dence is "not [ ] merely cumulative or impeaching." 988 F.2d at 1359.
The government contends that any newly discovered evidence is
cumulative because the defendants could have testified regarding their
own intent and, in particular, Michael could have testified about his
conversations with Parker or Lincoln. We disagree for two reasons.

   First, for evidence to be cumulative under Rule 33, it must be "ad-
ditional evidence to that which was presented at trial as to a fact."
United States v. White, 972 F.2d 16, 20 (2d Cir. 1992). The district
court noted that "Michael and Ethel made a rational decision not to
take the stand in part because they had no one to corroborate them on
10                     UNITED STATES v. FULCHER
this issue of intent." J.A. 1054. Because the jury did not hear any evi-
dence at trial relating to defendants’ intent or the public authority
defense, the newly discovered evidence is not cumulative.

   Second, evidence is only cumulative "when it adds very little to the
probative force of the other evidence in the case so that if it were
admitted its contribution to the determination of truth would be out-
weighed by its contribution to the length of trial." United States v.
Williams, 102 F.3d 320, 325 (7th Cir. 1996); see also Elwood v. Pina,
815 F.2d 173, 178 (1st Cir. 1994) ("Evidence is cumulative if repeti-
tive, and if the small increment of probability it adds may not warrant
the time spent in introducing it.") (quoting 1 Weinstein’s Evidence
¶ 401[07] (1985)) (emphasis added). The district court, however,
made a specific finding about the probative force of Lincoln’s testi-
mony — namely, that its addition would paint a "significantly more
persuasive picture than the one presented to the jury at trial." J.A.
1054. Lincoln’s testimony is more persuasive not only because he is
a disinterested witness, but also because of his status as a DEA agent
who was involved to some extent in the prosecution of this case.
Therefore, the testimony of Agent Lincoln cannot be dismissed as
cumulative since the probative force of his testimony at a new trial
would be, according to the district court, significantly greater than the
testimony of the defendants alone.

   Thus, the district court did not abuse its discretion in holding that
the newly discovered evidence is "not [ ] merely cumulative or
impeaching."

                                   D.

   The fourth element of Custis is whether the newly discovered evi-
dence is "material to the issues involved." 988 F.2d at 1359. The gov-
ernment’s principal argument on appeal is that the district court
misapplied the defenses of public authority and mistake of fact and,
in doing so, granted a new trial when the newly discovered evidence
is not material.

   At the post-trial evidentiary hearing, the following colloquy took
place between Lincoln and Assistant United States Attorney Mott
                      UNITED STATES v. FULCHER                     11
regarding whether Lincoln had actual authority to authorize money
laundering activities:

    Q If you were conducting a money laundering investiga-
      tion, would you expect to document where the money
      went?

    A Yes. And first and foremost I would expect to have to
      get an attorney’s general’s exemption to do it.

    Q And in a money laundering case you’ve got to go to the
      AG to get an exemption?

    A You have to go to the AG. That’s why I would never
      have authorized him to do that without permission.

J.A. 1000 (emphasis added). Lincoln further testified to the following
when asked about his authority to authorize a drug operation of the
type managed by Michael:

    Q And kind of a paramount rule in drug investigations is
      that you don’t let the drugs walk?

    A Correct.

    Q And that means you would never allow Mr. Fulcher to
      sell marijuana to someone without recovering it very
      shortly thereafter?

    A That’s correct.

    Q You would never authorize him to conduct drug sales on
      behalf of the DEA?

    A That’s true, and he knows that.

J.A. 1000-01 (emphasis added).

  On the basis of Lincoln’s testimony, the government argues that
Lincoln and his colleagues possessed, at most, apparent authority to
12                     UNITED STATES v. FULCHER
approve the operation undertaken by the Fulchers, and that such
authority was insufficient to either negate intent or to support the
defense of public authority. Though we agree with the legal argu-
ments advanced by the government, we nonetheless conclude that
there is insufficient evidence in the record regarding the extent of Lin-
coln’s authority (or that of his colleagues at the DEA). Thus, we ulti-
mately hold that the district court did not abuse its discretion when
it concluded that the newly discovered evidence was material.

                                    1.

   The defendants first seek to introduce Lincoln’s testimony for the
purpose of negating criminal intent. "The defendant may allege that
he lacked criminal intent because he honestly believed he was per-
forming the otherwise-criminal acts in cooperation with the govern-
ment. Innocent intent is not a defense per se, but a defense strategy
aimed at negating the mens rea for the crime, an essential element of
the prosecution’s case." United States v. Baptista-Rodriguez, 17 F.3d
1354, 1368 n.18 (11th Cir. 1994).

   While an honest belief that a defendant is acting in cooperation
with the government is a necessary element of establishing innocent
intent, it is not alone sufficient. That is, evidence that defendants
"honestly believed" that they acted in concert with a government offi-
cial could abrogate the criminal intent necessary to prove the particu-
lar crimes with which the defendants were charged,3 but, as we have
recognized previously, any such abrogation also depends upon the
nature of that official’s authority.
  3
   See, e.g., 18 U.S.C. § 1956(a)(1) (substantive money laundering
counts; requiring the government to prove that the defendant "know[s]
that the property involved in a financial transaction represents the pro-
ceeds of some form of illegal activity") (emphasis added); United States
v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc) (conspiracy;
requiring government to prove, inter alia, a defendant’s connection to the
conspiracy beyond a reasonable doubt including a knowledge element,
which requires that a defendant at least have "join[ed] the conspiracy
with an understanding of the unlawful nature thereof and willfully
join[ed] in the plan on one occasion" (emphasis added)) (quoting United
States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989)).
                      UNITED STATES v. FULCHER                       13
   For instance, if a government official possessed actual authority to
authorize the defendants’ activity, then criminal intent certainly
would be negated by the defendant’s honest belief that he was cooper-
ating with such an official. See, e.g., Baptista-Rodriguez, 17 F.3d at
1368 n.18; United States v. Duggan, 743 F.2d 59, 83 (2d Cir. 1984).
However, if the official possessed neither actual nor apparent author-
ity to authorize the otherwise criminal activity, then criminal intent
would not be negated. See United States v. Kelly, 718 F.2d 661, 665
(4th Cir. 1983).

   The question most readily presented by Lincoln’s testimony, and
a question we have not heretofore addressed, is neither whether intent
is negated when a defendant acts in concert with an official who does
not possess either actual or apparent authority nor whether criminal
intent is negated when a defendant acts in cooperation with an official
with actual authority but, rather, whether the criminal intent for the
crimes with which these defendants were charged is negated if they
were acting in conjunction with an official who possesses only appar-
ent authority. We hold, consistent with our sister circuits that have
considered the question, that intent is not negated when a defendant
cooperates with an official who possesses only apparent authority.

   Essentially, defendants argue that, if they acted at the direction of
an official who possessed apparent authority, they would lack the req-
uisite mens rea for the crimes with which they were charged. Accord-
ing to defendants, under such a circumstance, they would have made
only a mistake of fact — a cognizable defense negating intent when
the mens rea requirement for a crime is at least knowledge — regard-
ing whether DEA officials possessed actual authority to authorize
their drug and money laundering activities. See United States v. Ful-
ler, 162 F.3d 256, 262 (4th Cir. 1998) (stating that a mistake of fact
is a cognizable defense to an offense requiring knowledge).

   Any such defense is foreclosed, however, by our reasoning in
Kelly. There, the defendant relied on a government informant who
enlisted his help to assist in a government operation. 718 F.2d at 664.
The defendant argued that if he acted at the invitation of the infor-
mant, he could not have possessed the requisite criminal intent for
conspiracy to distribute drugs. See id. at 665. We disagreed, explain-
ing that defendant’s mistake arose not from "a mistake of fact as to
14                     UNITED STATES v. FULCHER
the [informant’s] status, but resulted from a misconception of the
legal prerogatives attached to that status." Id. We thus held that if the
defendant "indeed acted on the basis of a mistake . . . it was a mistake
of law, not a mistake of fact." Id. Of course, since defendant’s error
was a mistake of law, his belief did not constitute a defense to his
criminal act. See id. at 665; see also Fuller, 162 F.3d at 262 ("[A]
mistake of law such as claimed by Fuller is no defense because the
background presumption must be that ‘every citizen knows the
law.’").

   Though we did not address in Kelly whether a defendant’s intent
may be negated when he acts pursuant to an official’s apparent
authority, the reasoning of that case compels us to now answer that
question in the negative. For, reliance on the apparent authority of a
government official is nothing more than a mistake about "the legal
prerogatives attached" to such status and thus constitutes a mistake of
law. See United States v. Rosenthal, 793 F.2d 1214, 1235-36 (11th
Cir. 1986) (stating that a "defendant may only be exonerated on the
basis of his reliance on real and not merely apparent authority.");
Duggan, 743 F.2d at 83 ("The mistake that defendants advance here
as an excuse for their criminal activities — their reliance on Hanrat-
ty’s purported authority — is an error based upon a mistaken view of
legal requirements and therefore constitutes a mistake of law.").

   Therefore, we hold that criminal intent is negated if two elements
are met: (1) the defendant honestly believed that he was acting in
cooperation with the government, and (2) the government official or
officials upon whose authority the defendant relied possessed actual
authority to authorize his otherwise criminal acts.

                                   2.

   Defendants also seek to introduce Lincoln’s testimony to support
their defense of public authority. The public authority defense allows
"the defendant [to] seek[ ] exoneration based on the fact that he rea-
sonably relied on the authority of a government official to engage him
in a covert activity." Baptista-Rodriguez, 17 F.3d at 1368 n.18; see
also United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995). Thus,
in contrast to the innocent intent doctrine, this affirmative defense
                        UNITED STATES v. FULCHER                          15
allows a defendant to seek exoneration based upon his objectively
reasonable reliance on the authority of a government official.

   We have never addressed the scope of the public authority defense,
and, in particular, we have never explained whether such a defense
entitles a defendant to rely on the apparent authority of a government
official or whether actual authority is necessarily required. However,
we again find Kelly persuasive in answering this question. As
explained above, Kelly stands for the proposition that any mistake
about "the legal prerogatives" attached to a person’s status is not a
defense to a criminal act. See supra at 14. Our recognition of an
apparent public authority defense would contravene Kelly by creating
an affirmative defense in precisely such circumstances.4

   Accordingly, we adopt the unanimous view of our sister circuits
that the defense of public authority requires reasonable reliance upon
the actual authority of a government official to engage him in a covert
activity.5 See United States v. Pitt, 193 F.3d 751, 758 (3d Cir. 1999)
(stating that the public authority defense is limited "to those situations
where the government agent in fact had the authority to empower the
defendant to perform the acts in question"); United States v. Matta-
  4
      The view we adopt today is also faithful to the common law origin
of the public authority defense. As the Third Circuit has pointed out,
under the public authority defense at common law "illegal actions com-
mitted by a public official or an officer of the law in the course of his
duties were not crimes." United States v. Pitt, 193 F.3d 751, 756 (3d Cir.
1999). Thus, requiring an official to possess actual authority is consonant
with the common law requirement that actions be taken "under color of
public authority" for invocation of the defense. United States v. Reyes-
Vasquez, 905 F.2d 1497, 1500 n.5 (11th Cir. 1990); see generally Paul
H. Robinson, Criminal Law Defenses § 142 (1984).
    5
      We recognize that Rule 12.3(a)(1) requires a defendant to provide
notice to the government if he intends to claim either "a defense of actual
or believed exercise of public authority on behalf of a law enforcement
. . . agency at the time of the alleged offense." Fed. R. Crim. P. 12.3(a)(1)
(emphasis added). Since 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, we agree with the Third Circuit’s conclusion in
Pitt "that the law in jurisdictions where actual authority was required was
not altered" by the promulgation of Rule 12.3. 193 F.3d at 757.
16                     UNITED STATES v. FULCHER
Ballesteros, 71 F.3d 754, 770 n.12 (9th Cir. 1995) (stating that where
"a CIA agent could not lawfully authorize the violation of the federal
drug laws," the defense of public authority was not available); United
States v. Holmquist, 36 F.3d 154, 161 nn.6-7 (1st Cir. 1994) ("The
nonexistent defense of apparent public authority . . . must not be con-
fused with the potentially viable defense of actual public authority
which may come into play when a defendant undertakes certain acts,
reasonably relying on the statements of a government agent cloaked
with actual authority."); Baptista-Rodriguez, 17 F.3d at 1368 n.18 ("If
the agent had no such power, then the defendant may not rest on the
‘public authority’; reliance 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.").

                                    3.

   The government requests that we decide as a matter of law that the
newly discovered evidence is not material despite the deferential stan-
dard of review we employ in reviewing a district court’s decision to
grant a new trial. We decline to reach that conclusion because neither
party has been furnished with an opportunity to introduce any evi-
dence regarding whether Lincoln or his colleagues at the DEA pos-
sessed actual authority to sanction defendants’ money laundering and
drug activities. Furthermore, while Lincoln’s testimony certainly sug-
gests that these officials did not possess such authority, his testimony
does not conclusively establish that this is so, especially with regard
to Michael’s drug activities. J.A. 1000-01 (testifying that he would
not authorize Michael to conduct drug sales on behalf of the DEA).

   Therefore, if defendants can establish at a new trial that DEA offi-
cials authorized them to conduct the operation and that such officials
had the actual authority to do so, defendants would be entitled to
appropriate jury instructions on the defenses of public authority and
innocent intent.6 Since the jury would then be entitled to acquit the
  6
   Of course, as a result of our decision today, if the district court
instructs the jury on innocent intent and the public authority defense at
a new trial, it should also provide an appropriate instruction articulating
that reliance on the apparent authority of a government official is not a
viable defense.
                       UNITED STATES v. FULCHER                        17
defendants if it concluded that defendants’ activities were legitimately
authorized, we hold that the district court did not abuse its discretion
in concluding that the newly discovered evidence is "material to the
issues involved."

                                   E.

   The fifth element of Custis is whether the evidence is "such, and
of such nature, as that, on a new trial, the newly discovered evidence
would probably produce an acquittal." 988 F.2d at 1355. Much of our
analysis on the third and fourth elements of Custis is equally applica-
ble here. In particular, we again note that the persuasive value of Lin-
coln’s testimony cannot be underestimated due to his status as a DEA
agent who participated in the investigation of this case. Furthermore,
as the district court observed, if the jury credits Lincoln’s testimony
that DEA officials may have led defendants to believe that they were
acting pursuant to governmental authority, "it would certainly
create[ ] a record more favorable for the Fulchers." J.A. 1055. There-
fore, we cannot say that the district court abused its discretion in con-
cluding that the newly discovered evidence "would probably produce
an acquittal."
                            CONCLUSION
   For the foregoing reasons, the district court’s decision to grant a
new trial to defendants is affirmed and the case is remanded for fur-
ther proceedings consistent with this opinion.7
                                                             AFFIRMED
  7
    In light of our conclusion that the district court properly granted a
new trial, we need address only one additional issue on appeal. Michael
contends that his indictment was defective because it failed to provide
him with proper notice of the three drug-related violations underlying the
continuing criminal enterprise count. His argument is without merit,
however, because the CCE count in the indictment expressly incorpo-
rated by reference the predicate drug violations upon which the jury
relied in convicting Michael. See United States v. Tipton, 90 F.3d 861,
863 (4th Cir. 1996) (holding that an indictment which incorporated by
reference the predicate drug-related violations was sufficient to provide
adequate notice for a CCE count).
