U.S. v. Pitt
| Decision Date | 15 October 1999 |
| Docket Number | Nos. 98-7383 and 98-7497,s. 98-7383 and 98-7497 |
| Parties | (3rd Cir. 1999) UNITED STATES OF AMERICA, V. RICHARD LYNN PITT, APPELLANT IN NO. 98-7383 UNITED STATES OF AMERICA, V. WILLIAM MICHAEL STRUBE, ALSO KNOWN AS MIKE STRUBE, APPELLANT IN NO. 98-7497 |
| Court | U.S. Court of Appeals — Third Circuit |
On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Honorable Sylvia H. Rambo (D.C. Crim. No. 97-00108) [Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before: Greenberg and Alito, Circuit Judges, and DOWD,* District Judge
The appellants, Richard Pitt and William Strube, stand convicted of the primary charge of engaging in a 1994 conspiracy to possess with intent to distribute 486 kilograms of cocaine. Richard Pitt was, at the time of the conspiracy, a documented confidential informant for the United States Customs Service. Pitt and Strube defended their conduct with respect to the 486 kilograms of cocaine as a necessary predicate to obtaining, in a reverse sting operation, an enormous quantity of cocaine from the Cali Cartel in Colombia. In preparation, Pitt and Strube purchased the Ridgely Warfield, a sea-going vessel which was to be used to transport the Cali cocaine. Thus the primary defense advanced by Pitt and Strube was that of public authority, recognized by Fed. R. Crim. P. 12.3. The district court's denial of a jury instruction based on the defense of public authority is the primary error advanced in the appeals of Pitt and Strube. We affirm the convictions and sentences.
Richard Pitt, a pilot and a smuggler by trade, enlisted as a documented confidential informant with the U.S. Customs Service in 1992 after his release from a Mexican prison based on a sentence arising from flying a load of cocaine into Mexico from Colombia. In 1993, Pitt brokered a deal between an undercover Customs agent and a group of Mexicans to buy $1.3 million worth of cocaine. The reverse sting was successful and $1.3 million was seized, with Pitt receiving $350,000 for his efforts.
While still working with U.S. Customs Special Agents Roger Bower and Chuck Mohle, Pitt conceived a plan to entice the Cali Cartel to hire him to transport a large quantity of cocaine by an ocean-going vessel. Pitt enlisted Strube in that plan and they acquired the Ridgely Warfield for that avowed purpose. Agents Bower and Mohle were advised on the Pitt-Strube plan. However, Pitt and Strube did not advise the Customs agents that, in the summer of 1994, they were receiving and transporting large shipments of cocaine from Los Angeles to New York. The first shipment of 150 kilograms took place in mid-July; the second shipment of 150 kilograms took place in early August of 1994. A California State police officer intercepted the third shipment of 186 kilograms destined for New York in a vehicle driven by Pitt. Information about the third shipment was obtained by an on-going Title III interception; however, the stop of vehicle was made for the ostensible reason of a traffic violation so as avoid any revelation about the Title III operation. The traffic stop led to the seizure of the 186 kilograms in the third shipment.
During the government's case in chief, persuasive testimony was produced which demonstrated the culpability of Pitt and Strube relating to the first two shipments of cocaine to New York, including the testimony of Pitt's relatives who had been involved in the operation. The recipient of the cocaine in New York, Gloria Ramirez, also testified and accounted for the large sums of cash that were subsequently delivered to Pitt and Strube in payment for the earlier shipments.
The government produced Customs Agents Bower and Mohle who offered extensive testimony about their relationship with Pitt as the documented confidential informant for Customs. They conceded that Pitt had outlined his plan to persuade the Cali Cartel to use the sea- going vessel Ridgely Warfield, to transport cocaine to the United States for seizure. However, they denied any advance information about the Pitt-Strube plan to ship the 468 kilograms of cocaine to New York from Los Angeles. They also insisted that Pitt had been advised by his separate contacts that he was not authorized to engage in criminal conduct as a part of his plan. Pitt also testified at length about his contact with Bower and Mohle and suggested that they had agreed inferentially with criminal conduct to bring about the anticipated large shipment of cocaine by use of sea-going vessel.
In ruling on the Pitt motion for a new trial, the district court summarized his testimony as follows:
... Defendant himself admitted that no one had told him he could sell cocaine for profit. (Trial Transcript ("Tr.") at 1218.) He also acknowledged that he knew it was against U.S. Customs' policy to let drugs "walk" and, therefore, could not get official approval for his operation. (Tr. at 869.) In fact, he admitted hesitating in carrying out his plan once he was requested by the Cali Cartel to make three test runs because he knew it was wrong. (Tr. at 1201.) Further, he did not tell agents Bowers and Mohle the full extent of his plan until after he was arrested. (Tr. at 1181.) Additionally, there was testimony from the agents that they never authorized Defendant to distribute cocaine and that Defendant had been told in the past this could not be done....
Defendants Pitt and Strube contend that prejudicial error resulted from the district court's refusal to give a jury instruction based on their defense of public authority. Defendants filed a Notice of Intent to Present the Defense of Public Authority pursuant to Fed. R. Crim. P. 12.3 and requested that the district court issue a jury instruction for that defense. The district court declined reasoning that, since Pitt did not have actual authority to empower Strube to move cocaine, Strube was not entitled to an instruction on that defense. Instead, the district court instructed the jury on entrapment by estoppel for Pitt and mistake of fact for Strube.1
The district court's refusal to give a requested jury instruction is reviewed for an abuse of discretion. United States v. Gross, 961 F.2d 1097, 1101 (3d Cir.), cert. denied, 506 U.S. 965 (1992). In determining whether the district court abused its discretion, this Court evaluates whether the proffered instruction was legally correct, whether or not it was substantially covered by other instructions, and whether its omission prejudiced the defendant. Id. However, inasmuch as we review a "court's refusal to instruct the jury on a defense theory de novo," United States v. Stewart, 185 F.3d 112, 124 (3d Cir. July 16, 1999), it would have been an abuse of discretion if the defendants were entitled to a public authority charge and the court refused to give it.
The defense of "public authority" is based in common law. Under the defense, illegal actions committed by a public official or an officer of the law in the course of his duties were not crimes.2 Originally, this defense only applied to cases where the agency possessed the authority to permit the actor to engage in the otherwise illegal conduct and the actor was given permission. Published decisions pertaining to the defense of actual public authority are sparse, possibly because reliance on the defense is rare.
Recognition of the defense of "apparent" public authority appears in United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976), a case related to the infamous Watergate debacle. A divided court of the D.C. Circuit decided that the defense should be extended to an individual who acted at the behest of a government official and in reasonable reliance on that official's authority to permit the behavior. Id. at 948-49. Judge Wilkey, writing for the majority, cited two requirements a defendant must show to excuse his conduct: 1) there were facts justifying defendant's reasonable reliance on the official; and 2) there is a legal theory on which to base a reasonable belief that the official possessed the authority to permit the conduct. Id. at 949. This has become known as the defense of "apparent public authority." This defense differs from actual public authority because the defendant is not required to establish that the government official had the authority to sanction the illegal activity. Instead, the defendant asserts the belief that his action was condoned by the agency which he believed had authorized him to engage in the criminal conduct.
After Barker, the number of cases where the defendant claimed that he was acting under actual or apparent public authority began to increase.3 As a consequence, Congress became concerned with the increasing number of defendants attempting to utilize this common law defense, the problems of surprise the defense created at trial and the subsequent disclosures of confidential information which the defense often required.4 Therefore, Congress proposed an addition to the Federal Rules of Criminal Procedure requiring a defendant to make a pre-trial disclosure of his intention to use the defense. The proposed rule was added to the "Omnibus Intelligence and Security Improvements Act" (H.R. 1082, 1985) and was entitled "Title II --Intelligence or Law Enforcement Defense Pretrial Notification Act."
When the Omnibus Intelligence and Security Improvements Act was not enacted into law, the Justice Department submitted the proposed rule to the Criminal Rules Advisory Committee. The Committee prepared and circulated a proposed rule in September of 1986 requesting comment, proposed alterations, and possible concerns. Before the proposed rule emerged from the rule-making process, it was adopted as part of the Anti-Drug Abuse Act...
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