Using the Public Authority Defense in Chicago Federal Cases

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Last Updated on: 1st October 2023, 03:24 pm

Using the Public Authority Defense in Chicago Federal Cases

The public authority defense can be a powerful tool for defendants in Chicago federal cases who acted at the direction of government officials. This defense argues that a defendant’s illegal actions should be excused because they were done at the direction of law enforcement or other government agents.

In this article, we’ll break down when and how criminal defendants can use the public authority defense in Chicago federal cases. We’ll look at the legal requirements, recent case examples, and the strategic considerations around asserting this defense.

What is the Public Authority Defense?

The public authority defense is based on the idea that the government shouldn’t punish people for doing something illegal if a government agent instructed them to do it. As the Seventh Circuit explained, “a person who performs an act at the request of a government official that the person knows to be illegal does not violate the law if the government official had actual authority to empower the person to perform the act.”

This defense is codified in 18 U.S.C. § 3231, which states that no person can be prosecuted for an offense they were ordered to commit by someone with government authority.

To successfully argue the public authority defense, the defendant has the burden of proving:

• They were engaged by a government official;
• To participate in covert activity;
• The government official had the authority to authorize this conduct.

The public authority defense is frequently invoked in entrapment cases, where defendants claim they only broke the law because an undercover agent induced them to. But it can also apply whenever a government official instructs someone to violate the law to assist in an investigation or operation.

Public Authority Defense Case Examples

There have been several recent public authority defense cases in the Northern District of Illinois and Seventh Circuit. Here are a few notable examples:

• U.S. v. Al-Shahin (7th Cir. 2007) – The defendant claimed a public authority defense for exporting military equipment without a license, arguing he did so at the direction of U.S. intelligence officers. The Seventh Circuit upheld the district court’s exclusion of this defense, finding insufficient evidence the officers had actual authority.
• U.S. v. Millet (N.D. Ill. 2020) – The defendant was convicted of illegally purchasing firearms, arguing he did so as part of an ATF sting operation. The court excluded his public authority defense, finding the ATF agents lacked authority to instruct unlawful firearm purchases.
• U.S. v. Padilla (N.D. Ill. 2018) – Padilla was acquitted on drug charges after successfully arguing he participated in a fake drug robbery staged by the ATF. The court found the agents had instructed Padilla to perform otherwise illegal acts.
• U.S. v. Squillacote (7th Cir. 2000) – The court upheld the exclusion of a public authority defense where the defendant, charged with espionage, claimed to be a covert CIA agent. There was no evidence the CIA authorized her illegal activities.

As these cases show, everything hinges on whether the government agent truly had the authority to permit the defendant’s lawbreaking. Without solid proof of that authority, courts will not allow this defense.

When Can the Public Authority Defense Succeed?

Based on the case law, the public authority defense seems to have the greatest chance of success when:

• There is clear evidence that a government agent instructed the defendant to commit the illegal acts, such as recorded conversations or written instructions.
• The defense can prove the government agent had real authority to authorize the defendant’s conduct. This may require testimony from superiors in the agency.
• The defendant’s illegal acts were closely tied to the scope of the authorized covert operation. Actions that go beyond the agent’s instructions are less likely to be protected.
• The defendant did not know or have reason to know the agent lacked authority. Those with experience as government informants may have less ability to claim the defense.
• The defendant ceased the illegal conduct once the covert operation ended or the agent’s lack of authority was discovered.

Of course, the strength of the public authority defense will depend heavily on the specific facts of each case. But in general, it is most likely to succeed when the defendant has solid evidence of government authorization and acted in reasonable reliance on that authority.

Strategic Considerations Around the Public Authority Defense

The public authority defense can be risky and complex to assert in federal criminal cases. Here are some of the key strategic considerations:

• Disclosing classified information – Arguing this defense may require disclosing details of covert law enforcement activities, potentially requiring litigation over classified evidence.
• Agent credibility – The defense will need to scrutinize the authorizing agent’s credibility and authority. This can spur aggressive attacks on federal agents by the defense.
• Admitting criminal acts – The defendant must admit they knowingly committed criminal acts to claim the defense. This admission can backfire if the defense fails.
• Cooperation requirement – Defendants often must cooperate extensively with federal agents to enable a public authority defense, including testifying for the government.
• Sentencing impact – If successful, the defense may lead to acquittal or dismissal of charges. But falling short of an acquittal, it can still give grounds for a reduced sentence.

Given these considerations, defense counsel should thoroughly probe the merits of the public authority defense before committing to it. Once raised, the defendant will be heavily invested in pursuing the defense.

Backing out mid-stream may be impossible without damaging admissions of guilt. So extensive upfront investigation is essential.

Conclusion

The public authority defense provides an avenue for defendants who broke the law at the behest of government agents to avoid criminal liability. But succeeding with this defense in Chicago federal cases requires strong evidence of actual authorization plus reasonable reliance by the defendant.

Given the stringent requirements and strategic risks, defense counsel should research thoroughly before deciding to assert a public authority defense. When solid proof of government authorization exists, however, it can be a powerful tool for defendants to avoid conviction.