United States v. Marnie Ann Burt
2005 U.S. App. LEXIS 10597, 2005 WL 1346764, 410 F.3d 1100 (2005)
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Rule of Law:
A defendant is entitled to a jury instruction on a defense theory, such as apparent public authority, if there is any foundation in the evidence to support it, even if the evidence is weak, inconsistent, or of doubtful credibility.
Facts:
- On May 22, 2003, Border Patrol Agents Mike Van Edwards and Brian Brown arrested Marnie Ann Burt for transporting illegal aliens.
- Burt told the agents she had information regarding a larger plan to transport illegal aliens, and the agents told her she would not be prosecuted if she met with them the next day.
- At a meeting on May 23, 2003, with Agent George Scott and others, Burt claimed the agents told her that her actions would not be illegal as long as she was gathering information for them.
- Agent Scott contended he told Burt she was not a confidential informant and should not do anything illegal.
- Burt did not contact the agents again after the May 23 meeting.
- On May 28, 2003, border patrol agents arrested Burt again while she was transporting illegal aliens in a van.
- Upon her second arrest, Burt told the arresting agents that she was working for Agent Van Edwards.
- Shortly after learning of Burt's second arrest, Agent Scott destroyed his notes from the May 23 meeting, which were the only contemporaneous record of the interview.
Procedural Posture:
- The government filed a two-count indictment against Marnie Ann Burt for conspiracy to transport and transportation of illegal aliens in a federal district court.
- At trial, Burt's counsel requested a jury instruction on the 'public authority' defense.
- The district court judge refused to give the requested jury instruction.
- The jury returned a verdict finding Burt guilty on both counts.
- Burt filed a motion for a new trial, arguing the court erred by not giving the instruction, which the district court denied.
- The district court sentenced Burt to a prison term of thirty-six months.
- Burt, as appellant, appealed her conviction to the United States Court of Appeals for the Ninth Circuit, with the government as appellee.
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Issue:
Did the district court err by refusing to provide a jury instruction on the apparent public authority defense when the defendant presented some evidence that she reasonably believed she was acting as an authorized government agent?
Opinions:
Majority - Bright, J.
Yes. The district court erred by refusing to instruct the jury on the public authority defense. A defendant is entitled to instructions relating to a defense theory for which there is any foundation in the evidence, even if that evidence is weak, insufficient, or of doubtful credibility. Burt's testimony that the agents told her her actions would not be illegal while gathering information, Agent Scott's ambiguous testimony, and the destruction of the interview notes provided a sufficient evidentiary foundation for a jury to potentially find that Burt reasonably believed she was working for the agents. The failure to give the instruction was prejudicial because, under the instructions given, the jury was required to find Burt guilty even if they believed she was working for the agents, as she still had the requisite intent to transport the aliens.
Analysis:
This decision reinforces the low evidentiary threshold required for a defendant to receive a jury instruction on their theory of the case. It affirms that the judge's role is not to weigh the credibility of defense evidence but merely to determine if a minimal evidentiary basis—more than a mere scintilla—exists for the jury to consider. The ruling protects the jury's function as the ultimate finder of fact and ensures defendants are not deprived of a recognized defense supported by some evidence. It also underscores the adverse inference that can be drawn against the government when its agents destroy evidence relevant to a case.
