United States v. Pearrell ( 1996 )

Filed: July 26, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-5945
(CR-94-16)
United States of America,
Plaintiff - Appellee,
versus
Walter William Pearrell,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed January 9, 1996, as
follows:
On page 3, footnote 3, line 7 -- the case number for United
States v. Light is corrected to read "No. 94-59 54."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5945
WALTER WILLIAM PEARRELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Irene M. Keeley, District Judge.
(CR-94-16)
Argued: November 3, 1995
Decided: January 9, 1996
Before MURNAGHAN, NIEMEYER, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Joseph Jeffrey Harris, Morgantown, West Virginia, for
Appellant. Paul Thomas Camilletti, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee. ON BRIEF: William D. Wil-
moth, United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The appellant, Walter William Pearrell, conditionally pled guilty to
selling drug paraphernalia in violation of 21 U.S.C. § 863(a)(1),
reserving the right to appeal the district court's adverse ruling regard-
ing the defenses he sought to raise. He has challenged the court's pre-
trial decision precluding him from presenting either a good faith
defense or an entrapment by estoppel defense at trial.
I.
Pearrell was a clerk at Ed Light's Store in Martinsburg, West Vir-
ginia. On January 12, 1994, U.S. Customs agents discovered a large
quantity of assorted drug paraphernalia while executing a search war-
rant at the store.1 Thereafter, Pearrell was indicted, along with store
owner Ed Light, for selling drug paraphernalia.2
At a pretrial conference on September 21, 1994, Light argued that
his "long-time association with various law enforcement agencies"
raised an entrapment by estoppel defense and an innocent intent
defense (or public authority defense). The district judge held that nei-
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1 The agents seized crack pipes, marijuana pipes made out of various
materials, water pipes, scales, bongs, roach clips, screens, and drug dilu-
ents, as well as books and records, and T-shirts and burlap bags which
promoted the use of marijuana.
2 The original indictment returned on February 8, 1994, charged both
defendants with aiding and abetting each other in the sale of drug para-
phernalia in violation of 21 U.S.C. § 863(a)(1) and 18 U.S.C. § 2. Fol-
lowing the U.S. Supreme Court's decision in Posters 'N' Things, Ltd. v.
United States, 114 S. Ct. 1747, reh'g denied, 114 S. Ct. 2771 (1994), the
government sought and the grand jury returned a superseding indictment
charging the same offenses and adding the additional element of "know-
ingly."
2
ther defense was available to Light because he was unable to show
involvement with federal authorities.3 Pearrell's attorney indicated
that he also intended to present an innocent intent, or good faith,
defense by arguing "that in good faith, [Pearrell] believed what he
was doing was not against the law or it didn't violate any laws he was
aware of." Relying on the U.S. Supreme Court's decision in Posters
'N' Things, Ltd. v. United States, 114 S. Ct. 1747, reh'g denied, 114
S. Ct. 2771 (1994), the district court rejected the defense as irrelevant
in light of the federal statute's objective knowledge requirement.
Quoting the opinion, the court determined that the government must
establish "that the defendant knew that the items at issue are likely to
be used with illegal drugs," but not that he had "specific knowledge
that the items are drug paraphernalia within the meaning of the stat-
ute." In addition, the court found that evidence of reliance upon
authorization or advice that the conduct was legal also would be irrel-
evant under the standard of proof as outlined in Posters 'N' Things.
On September 27, 1994, Pearrell entered into a conditional plea
agreement with the government, preserving his right to appeal the dis-
trict court's ruling regarding the defenses available at trial. The par-
ties stipulated that the district court had ruled at the pretrial
conference that the defenses of innocent intent, entrapment by estop-
pel and public authority, and "``good faith' and mistake of law/fact"
are "not available" to Pearrell, and that he "would not be permitted to
testify regarding . . . cooperation with local, state and federal law
enforcement officials regarding the sale of drug paraphernalia as prof-
fered to the Court. . . ." The district judge accepted Pearrell's plea and
sentenced him to a $50 fine and one year of probation.
In his appeal, Pearrell has contended that the district court erred in
ruling that as a matter of law he could present neither a good faith
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3 The judge reasoned that since Light was charged with violating a fed-
eral statute, his estoppel argument was irrelevant if based on his involve-
ment with city or state officials. Several times during the conference, the
judge invited a proffer regarding the actions or statements of federal
agents, but Light never offered such evidence. A three-judge panel of the
Fourth Circuit affirmed the lower court's decision by unpublished opin-
ion. See United States v. Light, No. 94-5954 (4th Cir. Aug. 28, 1995) (per
curiam).
3
defense nor an entrapment by estoppel defense. The prosecution has
responded that both defenses are narrow, requiring the defendant to
provide evidence that he was acting in reasonable reliance upon the
advice of a federal official that the activity was lawful, and that Pear-
rell failed to make a proffer sufficient to sustain either defense.
We review the district court's pretrial ruling excluding the defenses
de novo. United States v. Osborne, 935 F.2d 32, 35 (4th Cir. 1991).
In general, a district court may not refuse to give a theory of defense
instruction if the instruction has an evidentiary foundation and is an
accurate statement of the law. United States v. Schmidt, 935 F.2d
1440, 1449 (4th Cir. 1991).
II.
The defenses of good faith and entrapment by estoppel share a
common origin in a series of U.S. Supreme Court cases holding that
due process prohibits criminal prosecution for illegal activities per-
formed by someone acting in reliance upon advice given by a gov-
ernment official. See United States v. Pennsylvania Indus. Chem.
Corp., 411 U.S. 655 (1973); Cox v. Louisiana, 379 U.S. 559 (1965);
Raley v. Ohio, 360 U.S. 423 (1959). While a basic maxim of the law
is that ignorance of the law is no defense, United States v. Int'l Miner-
als & Chem. Corp., 402 U.S. 558, 563 (1971), the Supreme Court has
recognized a narrow exception to that general principle in the Raley
line of cases, United States v. Etheridge, 932 F.2d 318, 321 (4th Cir.),
cert. denied, 502 U.S. 917 (1991) (quoting United States v.
Bruscantini, 761 F.2d 640, 641 (11th Cir.), cert. denied, 474 U.S. 904
(1985)). We agree with the district court that Pearrell did not offer
evidence adequate to support a finding that he, either in good faith or
reasonably, relied on official statements or actions indicating that his
conduct was legal or authorized.
A. Good Faith Defense
We have recognized a good faith reliance defense in criminal pros-
ecutions which is designed to refute proof that the defendant intended
to commit the crime. United States v. Miller, 658 F.2d 235, 237 (4th
Cir. 1981); see also United States v. Hirschfeld, 964 F.2d 318, 322
(4th Cir. 1992); Schmidt, 935 F.2d at 1449. "The essential elements
4
of the defense are (a) full disclosure of all pertinent facts to an expert,
and (b) good faith reliance on the expert's advice." Miller, 658 F.2d
at 237. Therefore, in order to assert a reliance defense at trial, the
defendant must present direct evidence sufficient to support a jury
finding that he or she reasonably relied on advice or instructions from
a government official or other relevant expert. United States v.
Wilson, 721 F.2d 967, 974-75 (4th Cir. 1983); Miller, 658 F.2d at
237. The court may properly refuse to instruct the jury regarding the
defense when there is inadequate evidence to support it. Schmidt, 935
F.2d at 1449; Wilson, 721 F.2d at 974. Proof of occasional meetings
with government agents and unsolicited submissions of information
without direct evidence of reliance on express authorization or expert
advice is insufficient. Wilson, 721 F.2d at 975. "Such an unwarranted
extension of the good faith defense would grant any criminal carte
blanche to violate the law should he subjectively decide that he serves
the government's interests thereby. Law-breakers would become their
own judges and juries." Id.
Pearrell's defense was that he simply "was not even aware at all
that [selling drug paraphernalia] was against the law." He offered no
evidence showing that he had received and relied upon a federal gov-
ernment official's authorization or assurance that his conduct was
legal. He alleged no statements or activity by federal officials upon
which he might have based a reliance defense. Indeed, Pearrell's
attorney specified that Pearrell "was not in contact with these agents"
and was "not trying to rely on anything he heard from them. . . . [H]e
simply worked in a store [and was told to sell the merchandise there]
. . . and never was he informed or had knowledge this was against the
law."
Pearrell also has claimed that the district court erred in relying
solely upon Posters 'N' Things as authority because that case did not
involve a good faith or entrapment defense.4 In Posters 'N' Things,
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4 Pearrell has further maintained that Posters 'N' Things is not control-
ling because the facts differ substantially from those in the present case.
The distinctions Pearrell has sought to make--that Light's shop was not
a "headshop" and that defendants were not sophisticated participants in
a complicated scheme nor charged with using the mail to sell drug
paraphernalia--are meritless.
5
the Supreme Court decided that an objective standard governs the
scienter element of federal drug paraphernalia statutes. 114 S. Ct. at
1752. Construing the predecessor statute to 21 U.S.C. § 863(a),5 the
Court concluded that although the provisions contained no express
mens rea element, Congress intended to require proof of knowledge
that the merchandise sold probably would be used with illegal drugs,
but not proof of specific knowledge that the merchandise was within
the statutory definition of drug paraphernalia. Id. at 1753-54. The
good faith defense theory seeks to negate proof of specific intent. See
Hirschfeld, 964 F.2d at 322; Miller, 658 F.2d at 237. Because the stat-
ute at issue requires proof only of general, objective knowledge, as
opposed to specific knowledge, the district judge properly found that
the good faith defense Pearrell sought to assert was irrelevant. No
matter what advice government officials might have given a defen-
dant, if the defendant knew that the merchandise he or she was selling
was commonly used with illegal drugs, the defendant would fall
within the purview of 21 U.S.C. § 863(a)(1).
B. Entrapment by Estoppel Defense
Pearrell abandoned his entrapment by estoppel defense at oral
argument. Moreover, unlike Light, Pearrell presented no evidence of
a relationship between himself and any government official upon
which he might have relied. He did not allege that government agents
had authorized his conduct or paid him for information about individ-
uals using drugs. The claim of implied authorization fails in any event
because neither Pearrell nor Light demonstrated involvement by fed-
eral officials. Involvement by state and local officials would not suf-
fice in a case brought pursuant to federal law. United States v. Clark,
986 F.2d 65, 69 (4th Cir. 1993); Etheridge, 932 F.2d at 321.
Finally, Pearrell has maintained that the district judge's ruling
denied him the opportunity to present any defense. That assertion is
simply groundless. While the district judge properly precluded the
good faith and entrapment by estoppel defenses as tendered, Pearrell
could have tried to show that he was unaware that the merchandise
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5 The analysis equally applies to the current statute, which is identical
in most respects to 21 U.S.C. § 857, the legislation at issue in Posters 'N'
Things.
6
sold at the store was unlikely to be used or combined with illegal
drugs.
The judgment is accordingly
AFFIRMED.
7