United States v. Doe

When asserting the affirmative defense of public authority, the defendant bears the burden of proof by a preponderance of the evidence where the crime requires that the defendant acted “knowingly.”

John Doe attempted to use information that he had received regarding narcotics trafficking to secure safe passage to the United States for himself and his family. He claimed to provide useful information to the Federal Bureau of Investigation (“FBI”); however, when he presented himself as an informant, the government denied that he was working for it. Doe was indicted for two counts of “knowingly and intentionally” conspiring to distribute Schedule II controlled substances and two counts of “knowingly and intentionally possess[ing] with intent to distribute” Schedule II controlled substances. During trial, Doe attempted to use the public authority defense because he had a reasonable belief that he was working for the FBI when he engaged in the criminal activity. Doe’s requested jury instruction included that “the burden was on the government to prove beyond a reasonable doubt that the defendant did not have a reasonable belief” that he was acting as an agent of the government. The government objected, arguing that Dixon v. United States applied, and thus the burden was on Doe to prove the defense by a preponderance of the evidence. The district court ruled that Dixon applied because the public authority defense would not negate any of the elements of the charged offenses. The Ninth Circuit agreed and joined the Sixth and Seventh Circuits in holding that a defendant bears the burden of proof by a preponderance of the evidence when asserting the public authority defense. The Court also held that the district court abused its discretion in denying two discovery requests that might have helped Doe prove his public authority defense, and determined that the sentencing hearing contained numerous procedural violations. Such violations were cumulative and amounted to plain error, requiring that the sentence be vacated. AFFIRMED in part, REVERSED in part, VACATED and REMANDED.