View Full Version : Turning the Tables on Your Potential Opponent

A.J. Comparetto
05-24-2008, 05:01 PM


This article is about how you can defend yourself against a criminal accusation or a civil lawsuit by using statements made by judges, government officers and agents acting on behalf of the government.



I. Introduction.

A criminal or civil defendant may offer evidence during trial or official proceeding regarding certain statements and representations made by government if those statements relate to his intent and understanding of the law, and many of such statements may qualify as admissions made by the government; see United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989)(government manuals admissible as party admissions under Fed.R.Evid. 801(d)(2)(D)); and United States v. GAF Corp., 928 F.2d 1253 (2nd Cir. 1991). In Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370, 52 S.Ct. 183 (1932), the Court held that a party could rely upon the representations made by a government agency, and in Moser v. United States, 341 U.S. 41, 71 S.Ct. 553 (1951), the Court held that such reliance could constitute a defense to actions taken by the government. These decisions are buttressed by others such as Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257 (1959), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476 (1965), United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574 (1967), and United States v. Penn. Industrial Chemical Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 1816 (1973). In Penn. Industrial, above, a company being criminally prosecuted for water pollution sought to assert a defense of reliance upon certain applicable agency regulations, but the trial court precluded the admission of that evidence. In reversing, the Supreme Court held that this reliance did constitute a defense and that the agency representations, the subject regulations, should be given as jury instructions.

II. Federal Court Cases.

The federal appellate courts certainly recognize the "reliance" defense. One of the earliest cases granting verdict for a defendant on this ground was United States v. Mancuso, 139 F.2d 90, 92 (3rd Cir. 1943). Here, the defendant filed suit to enjoin being drafted and the district court erroneously granted an injunction. Mancuso later used the injunction order as justification for refusing induction. His conviction for refusing enlistment was vacated because of his reliance upon the erroneous order. See also United States v. Albertini, 830 F.2d 985 (9th Cir. 1987).

Other courts have addressed this issue. In United States v. Tallmadge, 829 F.2d 767, 775 (9th Cir. 1987), the defendant was being prosecuted for possessing firearms after conviction for a felony. In defense, Tallmadge demonstrated that a licensed arms dealer, held to be a government agent, represented to him that it was lawful for him to acquire firearms. Because Tallmadge relied upon the word of this government agent, that court held that it would violate due process to convict him:

"The prosecution and conviction of Tallmadge for the receipt and possession of firearms, after he was misled by the government agent who sold him the weapons into believing that his conduct would not be contrary to federal law, violated due process."

In United States v. Clegg, 846 F.2d 1221 (9th Cir. 1988), the defendant was charged with arms smuggling in Pakistan and sought to defend himself with the factual defense that high government officials approved his activities; that court held such to be a valid defense. In United States v. Heller, 830 F.2d 150, 154 (11th Cir. 1987), the defendant, a lawyer, was convicted of tax crimes and sought to defend on the basis that his accounting methods conformed with the dictates of a tax court decision. In reversing the convictions, that court held that a jury instruction covering the substance of the tax court decision upon which Heller had relied should have been given. In United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990), the defendant had acted upon the advice given to him by a Standards of Conduct officer regarding a conflict of interest matter. Hedges was prosecuted for conflicts violations, defended himself with the factual argument that he had relied upon the advice of the Standards officer, and tendered a corresponding requested jury instruction which was not given. On appeal, the court acknowledged the validity of this defense and held it was error to refuse the giving of a jury instruction on this point. In United States v. Brady, 710 F.Supp. 290 (D.Colo. 1989), a defendant charged with illegal possession of firearms ("coyote getters") was acquitted when he showed that he directly relied upon the word of a state judge. A more recent case on this issue, United States v. Levin, 973 F.2d 463 (6th Cir. 1992), was one where the trial court dismissed an indictment because of reliance upon a government representation.

III. State Court Cases.

Several state courts also acknowledge this defense. In Schiff v. People, 111 Colo. 333, 141 P.2d 892 (Colo. 1943), the defendant had received stolen property and informed the police about such, who instructed him to simply retain possession; his conviction for possessing stolen property was reversed. In People v. Markowitz, 18 N.Y.2d 953, 223 N.E.2d 572 (N.Y. 1966), a defendant who was told by certain public officials that he did not need a license to sell merchandise at Yankee Stadium had his conviction vacated through use of this defense. In State v. Ragland, 4 Conn. Cir. 424, 233 A.2d 698 (Conn. 1967), a defendant's conviction for driving without a license was vacated based upon the fact that he drove the car on the occasion in question at the order of police officers. In Connelly v. State, 181 Ga.App. 261, 351 S.E.2d 702 (Ga. 1987), a defendant who had relied upon a misleading driver's license form had his conviction for driving offenses reversed. In State v. Chiles, 569 So.2d 45 (La.App. 4 Cir. 1990), a pawn shop owner who relied upon the practices of the local sheriff's office had her conviction for failure to abide by record keeping laws reversed. See also Commonwealth v. Twitchell, 617 N.E.2d 609, 616-620 (Mass. 1993), and State v. McKown, 475 N.W.2d 63, 68 (Minn. 1991). The refined essence of these cases is that a criminal or civil defendant does have available to him the defense of reliance upon representations made to him by government officials, including but not limited to judges, government officers and those acting in the capacity of agents (e.g., contractors and vendors) for the government.


It is extremely important that you keep whatever materials you have relied upon. If you have relied upon cases quoted from some book, go get copies of those cases from such sources as Westlaw or Lexis so that you can assert the defense of reliance upon the word of judges. If you have relied upon a quote of something else that is allegedly derived from a government publication, get the actual document. Remember: no one is likely to care about or respect your life, freedom and property more than you.

05-26-2008, 04:51 PM
Absolute gold!

A.J. Comparetto
05-26-2008, 10:29 PM
Thank you!