## Facts

- Marnie Ann Burt was arrested by Border Patrol agents on May 22, 2003, for transporting undocumented immigrants.
- Burt told agents she had information about a planned upcoming transportation of undocumented immigrants in a semi-trailer, and agents expressed interest.
- Burt claimed an agent told her she would not be prosecuted if she cooperated and that a warrant would issue if she did not return for a meeting; an agent disputed this.
- On May 23, 2003, Burt met with agents and was interviewed; only one agent (Scott) took notes.
- The parties disputed what Burt was told at the May 23 meeting:
  - The agent testified he told her she was not a confidential informant and must not do anything illegal.
  - Burt testified agents instructed her to gather information and led her to believe she would not be acting illegally so long as she was gathering information for them.
- On May 28, 2003, Burt was arrested again for transporting undocumented immigrants in a van and stated she was working for an agent.
- After learning of the second arrest, the interviewing agent destroyed his notes from the May 23 meeting.
- Burt was indicted for conspiracy to transport undocumented immigrants and transportation of undocumented immigrants; the district court refused her requested public authority and theory-of-defense jury instructions, and the jury convicted her.

## Issues

1. Whether Burt introduced enough evidence to require a jury instruction on the apparent public authority defense.
2. Whether the district court erred by refusing a defense theory instruction fairly presenting Burt’s public-authority-based defense.

## Decision

- The Ninth Circuit reversed Burt’s convictions and remanded for a new trial.
- The court held Burt produced sufficient evidence to warrant a public authority instruction when the evidence was viewed in the light most favorable to her.
- The district court erred by effectively resolving credibility disputes against Burt in refusing the instruction.
- Because the denied instructions removed the legal framework for Burt’s only defense theory, the error was not harmless.

## Legal Principles

- A defendant is entitled to a jury instruction on a recognized defense when there is some foundation in the evidence; in deciding whether to instruct, the court must view the evidence in the light most favorable to the defendant and must not resolve credibility conflicts.
- Apparent public authority applies when the defendant actually relies on a government official’s apparent authorization and the reliance is reasonable; if a reasonable jury could find those elements, the instruction must be given.
- A defendant is entitled to an instruction that fairly presents the defense theory when it is legally valid and supported by evidence; refusal is reversible when it prevents the jury from considering a legitimate defense.

## Conclusion

The Ninth Circuit ordered a new trial because Burt’s testimony and surrounding circumstances could support a reasonable belief that federal agents authorized her conduct, and the district court’s refusal to instruct on public authority (or otherwise fairly present that theory) improperly kept the jury from evaluating that defense.


United States v. Burt, 410 F.3d 1100 (9th Cir. 2005)