defendant even if guilt under the law is otherwise established beyond a reasonable doubt unnecessarily invites such an "illegal" verdict. Moreover, where the issue is submitted to the jury, with proper instructions as to the burden of proof and "elements" of fundamental fairness, the jury is still likely to confuse the government's burden on required intent for conviction with the defendant's burden on reasonable reliance. Cf. Tallmadge, 829 F.2d at 781 (Kozinski, J., dissenting) ("I fear the majority's analysis reads scienter into statutes we have consistently held require none"). In short, the Due Process reliance on misleading government conduct, being founded upon the Constitutional notion of fundamental fairness, is an inappropriate issue for a jury to determine and is an appropriate issue for the Court to determine.
Standard of Review
The Government contends that because the Court is reviewing a motion to dismiss the Indictment, it is entitled to have all the record evidence viewed in the light most favorable to it. The Defendants are requesting that the record be reopened so that their proffered evidence may be introduced in a hearing.
Because the Court is addressing a 12(b) motion to dismiss an indictment, the Court must assume that the pertinent allegations of the Indictment are true. See Serfass v. United States, 420 U.S. 377, 391-92, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975); Gulf Oil Corp., 408 F. Supp. at 459. For present purposes, therefore, the Court assumes that, in violation of 18 U.S.C. §§ 371, 1955 and 2, the Defendants conspired to participate and in fact participated in the alleged illegal gambling business, using video poker machines for gambling purposes in violation of 18 Pa. Cons. Stat. Ann. § 5513.
At this stage, the Court is addressing the motions to dismiss primarily on the basis of the Defendants' proffered evidence. Not having admitted all Defendants' evidence in a full hearing on the motions, the Court is not in a position to make findings of fact or credibility determinations to resolve factual disputes. Cf. Fed. R. Crim. P. 12(e). The Court cut short Defendants' presentation of their evidence on the basis that it was insufficient as a matter of law and hence irrelevant. Defendants' proffer of evidence, which does not contradict the allegations of the Indictment, is therefore entitled to be viewed in the light most favorable to the Defendants. Brebner, 951 F.2d at 1024 ("A district court's determination [based on proffered evidence] that there exists no evidence sufficient to raise a valid defense is analogous to a determination that a jury instruction relating to a defendant's theory of the case is not warranted by the evidence"); cf. Billue, 994 F.2d at 1568 ("The trial court has authority to refuse to instruct the jury on a defense where the evidence used to support it, if believed, fails to establish a legally cognizable defense"); Smith, 940 F.2d at 715 n.4 (defendant's evidence, excluded in jury trial, to be viewed in light most favorable to defendant); Hedges, 912 F.2d at 1406 (evidence purporting to justify defendant's jury instruction to be viewed in favor of defendant).
Because the Due Process reliance on misleading government conduct defense is to be determined under the totality of the circumstances, Pennsylvania Indus. Chem. Corp., 411 U.S. at 674-75; Smith, 940 F.2d at 714;, the Court will also rely on the record as a whole, to the extent that it reflects undisputed facts, in addition to Defendants' proffer.
It is undisputed that the Defendants have pointed to no federal government conduct in support of their Due Process defense. The Government asks that the Court apply a per se rule to deny the defense and hold that the federal government cannot be estopped from enforcing its criminal laws by the conduct of state or local officials. The Court declines to adopt such a per se rule.
The Government can point to numerous authorities holding or urging that the Due Process defense can be invoked only in reliance upon federal government conduct. See Clark, 986 F.2d at 69; Hurst, 951 F.2d at 1499-1500; Brebner, 951 F.2d at 1026-27; Etheridge, 932 F.2d at 320-21; Austin, 915 F.2d at 366; Tallmadge, 829 F.2d at 776-78 (Kozinski, J., dissenting); Bruscantini, 761 F.2d at 641-42. The focus of the Due Process inquiry into fundamental fairness and substantial justice, however, should not be arbitrarily constrained by concepts taken from other contexts such as estoppel, actual authority or deterrence.
Brady, 710 F. Supp. at 296 ("The better view is that the defense is not based on the government being bound by the conduct of its agents, but rather, the fundamental unfairness of punishing a defendant for conforming his conduct to an erroneous interpretation of the law [rendered by an apparently authoritative government official] . . . "); see also Hedges, 912 F.2d at 1405 ("There has never been a suggestion that Lehman could waive or authorize a violation of the statute. On the contrary, the only issue before us, clearly, is whether Hedges acted on advice that he was not violating the statute)." A per se rule in a federal criminal prosecution predicating the availability of the Due Process defense on federal action saps the notion of fundamental fairness of its flexibility and leaves the door open for fundamentally unfair prosecutions to be upheld.
An illegal gambling business prosecution illustrates the potential fundamental unfairness inherent in such a per se rule. The case of United States v. Hurst, 951 F.2d 1490 (6th Cir. 1991) is instructive. In Hurst, the defendants sought a jury instruction on "entrapment by estoppel" in an illegal gambling business prosecution on the basis of statements made by state officials regarding state gambling laws. On two grounds, the court affirmed the failure to instruct in the circumstances presented.
First, the court found no evidence to support the instruction. One state official was part of the illegal gambling business and instructed its members on how to flout the law, not comply with it. Another official stated that documentation -- apparently valid on its face, but containing misrepresentations of facts -- was acceptable. Finally, there was lax enforcement of certain regulations, but no assurances that the illegal gambling business was in compliance with the regulations. Id. at 1499.
Second, the court relied on the fact that the alleged advice had been rendered by state officials regarding state law. The court stated as follows:
Moreover, the statements allegedly relied upon were made by state officials relating to state law, while the defendants were charged with violations of federal law. One of the purposes of section 1955 was to aid in the enforcement of state gambling laws where state enforcement was disabled by corruption of state officials. . . . Allowing a state official's alleged complicity in illegal activities to void the convictions here would violate the intent of Congress in enacting section 1955 and distort the clear due process doctrine set forth in Cox and Raley.