Today in United States v. Georgescu—a case with truly peculiar facts—the Second Circuit upheld a somewhat unorthodox jury instruction on the entrapment-by-estoppel defense. This defense is available when “a government agent authorizes a defendant to engage in otherwise criminal conduct and the defendant, relying thereon, commits forbidden acts in the mistaken but reasonable, good faith believe that he has in fact been authorized to do so.” United States v. Gil, 297 F.3d 93, 107 (2d Cir. 2002) (internal quotation marks and alterations omitted). In Georgescu, the Circuit decided by summary order that the district court did not err by additionally instructing that “the defendant must prove that affirmative conduct or statements of a government official caused him in good faith to believe that he was authorized to engage in the charged conduct.” Opening Brief at 15. This instruction, though understandable in the context of Georgescu, may be inappropriate in more conventional entrapment-by-estoppel cases. Attorneys may therefore wish to highly the unique facts of Georgescu—omitted from the summary order but described below and detailed in the parties’ briefs—if the government advocates for the jury instruction used in that case.
The defendant in Georgescu was charged with conspiracy offenses that stemmed from a “narco-terrorism” sting operation conducted by the DEA. Mr. Georgescu had once been a confidential informant for the FBI. In 2012, an acquaintance unwittingly made a deal with a confidential DEA source to sell weapons to the FARC, and invited Mr. Georgescu to participate. Mr. Georgescu called the CIA’s tip line, described the proposed weapons deal, and offered to work for the agency. The CIA telephone operator’s contributions to the conversation included “okay,” “I understand,” and an assurance that the CIA would “look at the information . . . and investigate it very delicately.” Two years later, the acquaintance introduced Mr. Georgescu to the DEA’s confidential source. Mr. Georgescu agreed to supply weapons to the FARC and took steps to advance the deal over the course of several months before being arrested in Montenegro. Upon arrest, Mr. Georgescu said that he had been working undercover for the CIA and cooperated with the arresting agents. At trial, Mr. Georgescu testified that, based on his call to the CIA, he thought he had reached an agreement to work with that agency to investigate the arms deal.
In this strange context, the Circuit deemed it permissible for the district court to instruct the jury that the defendant must identify “affirmative conduct or statements of a government official.” This language, the panel concluded, was an acceptable translation of the Second Circuit’s statement in United States v. Miles, 748 F.3d 485 (2d Cir. 2014), that to prove entrapment by estoppel, “a defendant must show an affirmative assurance from the government that his conduct was legal.” Id. at 489. In more conventional cases, however, a similar instruction might be misleading as a description of the entrapment-by-estoppel defense.
As the panel recognized, “in some circumstances the word ‘affirmative’ would mislead a jury into focusing on the government agent’s intentions rather than the defendant’s reasonable interpretation of that agent’s actions.” Sum. Order at 3. Consider, for example, a case in which a government official cultivated an ongoing relationship with the defendant. This official might say or do things that, in context, would lead the defendant to reasonably believe that she was authorized to engage in prohibited conduct. A defendant in this circumstance could present an entrapment-by-estoppel defense regardless whether or not the official’s statements were “affirmative” in nature. Otherwise, government officials might find creative ways to circumvent the entrapment-by-estoppel defense even while luring defendants into a reasonable, good-faith belief that they are acting with the government’s authorization.
In other news, the Ninth Circuit has finally clarified the self-defense standard for shooting a grizzly bear.