United States v. Clegg
846 F.2d 1221 (1988)
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Rule of Law:
A defendant may assert an entrapment by estoppel defense if they can show they reasonably and in good faith relied on the solicitation, encouragement, and assistance of a government official, which led them to believe their conduct was lawful, even if the official did not explicitly state the conduct was legal.
Facts:
- Eugene Ray Clegg, a teacher at an American school in Islamabad, Pakistan, smuggled arms through Pakistan to Afghan rebels resisting Soviet occupation.
- Clegg alleged that U.S. government officials, including high-ranking military officers, solicited, encouraged, and assisted his efforts to supply these weapons.
- Specifically, Clegg claimed that Lieutenant Colonel Durham informed him the U.S. wanted him to smuggle arms to the rebels and helped him plan a shipment.
- Clegg also alleged that Colonel Maugher, the director of military intelligence in Pakistan, knew of his activities and sold him ammunition with the understanding it was for the rebels.
- Based on this alleged encouragement and assistance, Clegg believed he had official permission from the United States to transport the arms.
- Clegg was arrested in Pakistan, imprisoned, and subsequently escorted back to the United States by U.S. marshals to face federal charges for exporting firearms.
Procedural Posture:
- The United States charged Eugene Ray Clegg in federal district court with unlawfully exporting firearms.
- During pre-trial proceedings, the district court ordered the government to produce classified documents material to Clegg's defense, a ruling the Ninth Circuit affirmed on a prior appeal.
- On remand, Clegg gave notice of his intent to disclose classified information at trial.
- The government sought a pretrial ruling under the Classified Information Procedures Act (CIPA) to determine the admissibility of the classified information.
- After an in camera hearing, the district court ruled that the information was relevant to Clegg's defense of good-faith reliance on government authority and was therefore admissible.
- The United States filed an interlocutory appeal of the district court's admissibility ruling to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a defendant charged with unlawfully exporting firearms have a valid defense of entrapment by estoppel based on allegations that high-ranking U.S. government officials solicited, encouraged, and assisted his activities, leading him to believe they were lawful?
Opinions:
Majority - Per Curiam
Yes. A defendant is entitled to assert a defense based on good-faith reasonable reliance on the apparent authority of government officials. This case is controlled by the circuit's precedent in United States v. Tallmadge, which permitted an entrapment by estoppel defense for a defendant who relied on the representations of a licensed firearms dealer. The court reasoned that Clegg's case is even stronger (a fortiori) because he allegedly relied not on a private party, but on high-ranking government officials while operating in a foreign country. Therefore, if the defendant in Tallmadge was entitled to the defense, Clegg must also be permitted to present evidence supporting his claim that he reasonably believed his actions were authorized by the U.S. government.
Dissenting - Skopil, J.
No. The mistake of law defense should not be available because it requires legitimate reliance on an official interpretation of the law, where an official affirmatively states that specific conduct is lawful. Clegg never alleged that any official told him his activities were legal; he only claimed they provided encouragement and assistance. Government assistance in an illegal activity does not make that activity lawful. Since there was no official representation of legality for Clegg to rely upon, the exception to the general rule that ignorance of the law is no excuse does not apply.
Analysis:
This decision expands the entrapment by estoppel defense within the Ninth Circuit by allowing it to be based on implicit authorization through government encouragement and assistance, rather than requiring an explicit statement of legality. This lowers the threshold for defendants, especially in cases involving covert or intelligence operations, to argue they were misled by the government. The ruling creates a potential conflict with other circuits that maintain a stricter standard, requiring reliance on an official with actual authority who makes an affirmative misstatement about the law.
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