PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

ROSANNA SUE NICHOLS FULCHER,  No. 00-4167

a/k/a Rose Nichols, a/k/a Sue

Nichols, a/k/a R. S. Nichols, a/k/a

Rosanna Nichols, a/k/a Bo,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

ROSANNA SUE NICHOLS FULCHER,

a/k/a Rose Nichols, a/k/a Sue

Nichols, a/k/a R. S. Nichols, a/k/a  No. 00-4200

Rosanna Nichols, a/k/a Bo; MICHAEL

EDWARD FULCHER, a/k/a Michael

Ferguson; ETHEL VEST FULCHER,

a/k/a Zelda Vest, a/k/a O.C. Vest,

a/k/a Colin Vest, a/k/a Ann Smith,

Defendants-Appellees. 
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4219

MICHAEL EDWARD FULCHER, a/k/a

Michael Ferguson,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CR-98-102)

Argued: March 1, 2001

Decided: May 17, 2001

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Niemeyer and Judge Williams joined. 

COUNSEL

ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSOCIATES, Richmond, Virginia; Charles David Whaley, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia, for

Appellants. Joseph William Hooge Mott, Assistant United States

Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: David P.

Baugh, Richmond, Virginia, for Appellant Ethel Fulcher. Robert P.

Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.

2 UNITED STATES v. FULCHER
OPINION

LUTTIG, Circuit Judge: 

Defendants Ethel, Michael, and Rosanna Fulcher were convicted

by a jury of various money laundering and drug violations. Following

trial, a government agent wrote an ex parte letter to the district court

explaining that he may have led the defendants to believe that they

were authorized to conduct the entire operation on behalf of the government. The district court granted a new trial to the defendants pursuant to Fed. R. Crim. P. 33, holding that the newly discovered

evidence satisfied every requisite element for a new trial. For the reasons that follow, we affirm. 

I.

This case arises out of the pervasive presence of drugs at Bland

Correctional Center ("BCC"), an institution operated by the Virginia

Department of Corrections. The network of drug distribution at BCC

was extensive, involving inmates, prison officials, and even the relatives and girlfriends of inmates. The drug operation managed by

Michael Fulcher ("Michael") was no exception. 

Michael purchased his supply of marijuana from various prison

officials, including prison guards and counselors. J.A. 413-14, 538,

554-55. He would then divide the drugs he received into smaller

quantities — most often teaspoon-sized servings — for distribution to

inmates at BCC. J.A. 265, 773. Since his customers were prohibited

from using cash while incarcerated, inmates purchased the drugs with

money orders written on their inmate trust accounts, remitting payment to a number of individuals located outside the prison, including

Rosanna Fulcher ("Rosanna"), Michael’s wife, and Ethel Fulcher

("Ethel"), Michael’s mother. J.A. 266-67, 557, 783-84, 1078. The

funds collected would then be used to purchase additional marijuana

from prison officials, beginning the cycle anew. 

The appellants, Michael and Rosanna, were charged in a 47-count

indictment — along with 22 other defendants — with engaging in

drug and money laundering conspiracies, as well as substantive

UNITED STATES v. FULCHER 3
counts of the same.1

 The jury convicted Rosanna of a money laundering conspiracy and ten substantive counts of money laundering. J.A.

856-60. Michael was convicted of drug and money laundering conspiracies, a continuing criminal enterprise offense ("CCE"), and 17

substantive money laundering counts. J.A. 861-67. 

On the eve of sentencing, the district court received an ex parte letter from Special Agent Donald O. Lincoln, Jr., of the Drug Enforcement Administration ("DEA"). J.A. 1074-79. In the letter, Lincoln

explained that he rejected Michael’s request to formally investigate

the distribution of drugs at BCC for two reasons: (1) it would be

impossible to ensure his safety from other inmates and prison guards

while he was incarcerated; and (2) the amount of marijuana was "so

minuscule that I advised him that there was no way that we could justify a Federal investigation on what would at best be misdemeanor

level quantities." J.A. 1074. 

Although Lincoln never formally granted permission for Michael

to initiate a formal drug investigation, Lincoln nonetheless stated his

concern that he, along with state law enforcement officers working

with the DEA, may have provided Michael with the mistaken impression that he had tacit approval to investigate drug dealing at BCC.

J.A. 1075. Specifically, Lincoln explained: 

It has come to my attention that in my absence Mr. Fulcher

would periodically talk to Deputy Kenny Parker of the Botetourt County Sheriff’s Office, who was working in the DEA

Office, serving as a DEA Task Force Officer at that time. In

these conversations Mr. Fulcher told Deputy Parker what he

was working on. Deputy Parker, believing that the operation

had already been approved by me, discussed a number of

options with Mr. Fulcher. One of these involved arranging

for one or more of the guards who were involved to make

an attempted pickup of marijuana from Deputy Parker, in an

undercover capacity, in Botetourt County. Under those circumstances the case could have been taken to State Court in

1Ethel — who joins this case only to oppose the government’s appeal

of the district court’s grant of a new trial — was convicted of a money

laundering conspiracy and nine substantive counts of money laundering.

4 UNITED STATES v. FULCHER
Botetourt or, if it developed into something interstate or substantial it could be brought to Federal Court. Deputy Parker

discussed this potential operation with Sheriff Reed Kelly,

and both of them recall the conversations. In addition Deputy Parker reminded me of a conversation he had with me

concerning setting up a potential sting operation against a

prison guard, to go down at a Botetourt County truck stop.

J.A. 1074-75. Lincoln also stated in the letter that during his numerous telephone conversations with Michael over a three-year period, 

[t]here were indeed times when I was in a hurry to get him

off the phone due to other commitments. If I said anything

in haste which led him to believe he was "covered" it may

be the proximate cause of all of this. I honestly do not recall

ever saying anything to that effect, but if Task Force Agent

Parker and Sheriff Kelly also believe that I did, then I must

lend credibility to the possibility. I don’t know what if any

consideration can be given to all that I have related here,

your Honor, but I felt it incumbent on me to state the facts

as I now know them. 

J.A. 1079. 

On the basis of the letter, appellants filed a motion (which Ethel

joined), asserting that they were entitled to a new trial on the basis of

newly discovered evidence pursuant to Fed. R. Crim. P. 33. The district court held an evidentiary hearing, in which both Lincoln and

Deputy Parker testified. Lincoln stated that David Fulcher, Michael’s

father, told him that Michael and Parker had spoken on several occasions concerning a possible sting operation. J.A. 927, 933, 935-36.

According to Lincoln, Parker told him that he had talked with

Michael several times regarding a possible drug operation, and that

Parker had discussed a number of options with Michael about how to

set up a sting operation involving prison officials. J.A. 936-39. On

redirect, Lincoln acknowledged that, since his testimony at the pretrial hearing, his opinion regarding whether the Fulchers may have

believed that they were authorized to conduct the operation had

changed: 

UNITED STATES v. FULCHER 5
Q All right. Now during your July testimony, June testimony [sic] in the courtroom, I asked you a question

about, "Did you ever do anything that in your estimation could have been construed as permission to conduct this investigation?" And do you recollect your

answer as being, "No"?

A I probably did say that, and I guess that’s — . . . 

Q Are you now of the opinion that you could have been

communicating to him and his mother that if the case

was bigger it would be prosecuted and he could get his

sentence reduced? 

A I don’t know, but, yes, that’s my primary concern at this

point. 

Q Do you believe you might have? 

A Yes. And if not me, then the fact that he talked to the

other people in my office or to other people in my office

[sic] and he felt that they somehow blessed it, then there

is the very real possibility, especially from the part of

Mrs. Fulcher.

J.A. 984-85, 990-91 (emphases added). 

On the basis of the letter and the testimony adduced at the evidentiary hearing, the district court granted the motion for a new trial, holding that the newly discovered evidence was material because it was

directly related to the public authority defense2 and to whether the

defendants possessed the requisite mens rea for their crimes. J.A.

1054, 1056-57. The district court also denied appellants’ motions for

judgment of acquittal pursuant to Fed. R. Crim. P. 29. Appellants

filed a timely notice of appeal challenging their convictions, and the

2Only Michael and Ethel filed the requisite notices under Fed. R. Crim.

P. 12.3(a)(1) indicating that they would be relying on the public authority

defense. J.A. 75, 113. 

6 UNITED STATES v. FULCHER
government cross-appeals the district court’s decision to grant a new

trial. 

II.

The government argues on appeal that the district court erred in

granting a new trial to defendants on the basis of newly discovered

evidence. 

Under Fed. R. Crim. P. 33, "[o]n a defendant’s motion, the court

may grant a new trial to that defendant if the interests of justice so

require." In determining whether a new trial should be granted under

Rule 33 for newly discovered evidence, this court utilizes a five-part

test: 

(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which

the court may infer diligence on the part of the movant; (c)

the evidence relied on must not be merely cumulative or

impeaching; (d) it must be material to the issues involved;

and (e) it must be such, and of such nature, as that, on a new

trial, the newly discovered evidence would probably produce an acquittal. 

United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1989). Without

ruling out the possibility that a rare example might exist, we have

never allowed a new trial unless all five elements were established.

See United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). 

The district court made extensive findings on each of the elements

of the Custis test and, of course, we review for an abuse of discretion

the district court’s decision to grant a new trial based on those findings. Singh, 54 F.3d at 1190. Under the abuse of discretion standard,

"this Court may not substitute its judgment for that of the district

court; rather, we must determine whether the court’s exercise of discretion, considering the law and the facts, was arbitrary or capricious." United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

Since the government challenges the district court’s application of

each of the Custis elements to the facts of this case, we review each

in turn. 

UNITED STATES v. FULCHER 7
A.

The first element of Custis is whether the evidence is, "in fact,

newly discovered." 988 F.2d at 1359. The district court held that Lincoln’s letter was "newly discovered" since it mentioned new facts that

added a "dimension to Lincoln’s testimony that was not known

before." J.A. 1055. We agree. 

For instance, during the pre-trial motions hearing, Lincoln unequivocally testified that he did not say or do anything that could have been

construed by Michael as permission to conduct an investigation at

BCC under any circumstances, primarily due to concerns about

Michael’s safety while incarcerated. J.A. 231-32, 248-49. In contrast,

at the post-trial evidentiary hearing, Lincoln testified that he and other

members of his office might have communicated to Michael that if

the case were bigger and involved a larger amount of drugs, the government might be interested in pursuing it further. J.A. 990-91; see

also J.A. 1051-52 ("[N]ew to Lincoln’s testimony is his assertion that,

when first discussing with Michael the investigative work he had

completed on the BCC marijuana ring, Michael told him that he had

been trying to collect evidence the DEA might be more interested in

by finding interstate connections and by working his way up the prison’s chain of command."). As the district court found, the latter testimony "indicate[d] that Lincoln made statements to Michael and Ethel

that he failed to tell this court about before the trial." J.A. 1051. 

It is undisputed that this new testimony was not within the defendants’ possession prior to or during trial, and that it only came to light

when Lincoln himself — of his own accord — decided to write an ex

parte letter to the district court on the eve of sentencing. Because the

evidence contained in the letter and presented at the post-trial hearing

was not discovered until after the trial, the district court did not abuse

its discretion in holding that it constituted "newly discovered evidence." Singh, 54 F.3d at 1190 (stating that "newly discovered evidence" means "evidence discovered since the trial"). 

B.

The second element of Custis is whether there are facts alleged

"from which the court may infer diligence on the part of the movant."

8 UNITED STATES v. FULCHER
988 F.2d at 1359. The district court specifically found that "based on

the substance and style of Lincoln’s pre-trial testimony, any more

specific questioning on this matter by the defendants would not have

produced the same helpful evidence now before the court." J.A. 1052.

The court reached that conclusion primarily because "Lincoln’s pretrial testimony was particularly unfavorable to the Fulchers by insisting that there was nothing ambiguous about his refusal to allow

Michael to investigate the matter." J.A. 1053. 

The district court’s finding is amply supported by the record. The

defendants engaged in a lengthy cross-examination of Lincoln during

the pre-trial hearing, and as the district court correctly noted, there is

simply no indication from the record that a more probing crossexamination would have elicited any of the facts that came to light

following the trial. In fact, the record supports an inference to the contrary, since Lincoln stated in his letter that he "testified as truthfully

and accurately as possible" at the pre-trial hearing and that any

change in his testimony could be attributed, at least in part, to facts

"coming to [his] attention" through his conversations with Deputy

Parker and David Fulcher in the months following the hearing. J.A.

1074. 

Therefore, we cannot say that the district court abused its discretion

in concluding that there were facts from which it could infer due diligence on the part of the defendants. 

C.

The third element of Custis is whether the newly discovered evidence is "not [ ] merely cumulative or impeaching." 988 F.2d at 1359.

The government contends that any newly discovered evidence is

cumulative because the defendants could have testified regarding their

own intent and, in particular, Michael could have testified about his

conversations with Parker or Lincoln. We disagree for two reasons.

First, for evidence to be cumulative under Rule 33, it must be "additional evidence to that which was presented at trial as to a fact."

United States v. White, 972 F.2d 16, 20 (2d Cir. 1992). The district

court noted that "Michael and Ethel made a rational decision not to

take the stand in part because they had no one to corroborate them on

UNITED STATES v. FULCHER 9
this issue of intent." J.A. 1054. Because the jury did not hear any evidence at trial relating to defendants’ intent or the public authority

defense, the newly discovered evidence is not cumulative. 

Second, evidence is only cumulative "when it adds very little to the

probative force of the other evidence in the case so that if it were

admitted its contribution to the determination of truth would be outweighed by its contribution to the length of trial." United States v.

Williams, 102 F.3d 320, 325 (7th Cir. 1996); see also Elwood v. Pina,

815 F.2d 173, 178 (1st Cir. 1994) ("Evidence is cumulative if repetitive, and if the small increment of probability it adds may not warrant

the time spent in introducing it.") (quoting 1 Weinstein’s Evidence

¶ 401[07] (1985)) (emphasis added). The district court, however,

made a specific finding about the probative force of Lincoln’s testimony — namely, that its addition would paint a "significantly more

persuasive picture than the one presented to the jury at trial." J.A.

1054. Lincoln’s testimony is more persuasive not only because he is

a disinterested witness, but also because of his status as a DEA agent

who was involved to some extent in the prosecution of this case.

Therefore, the testimony of Agent Lincoln cannot be dismissed as

cumulative since the probative force of his testimony at a new trial

would be, according to the district court, significantly greater than the

testimony of the defendants alone. 

Thus, the district court did not abuse its discretion in holding that

the newly discovered evidence is "not [ ] merely cumulative or

impeaching." 

D.

The fourth element of Custis is whether the newly discovered evidence is "material to the issues involved." 988 F.2d at 1359. The government’s principal argument on appeal is that the district court

misapplied the defenses of public authority and mistake of fact and,

in doing so, granted a new trial when the newly discovered evidence

is not material. 

At the post-trial evidentiary hearing, the following colloquy took

place between Lincoln and Assistant United States Attorney Mott

10 UNITED STATES v. FULCHER
regarding whether Lincoln had actual authority to authorize money

laundering activities: 

Q If you were conducting a money laundering investigation, would you expect to document where the money

went? 

A Yes. And first and foremost I would expect to have to

get an attorney’s general’s exemption to do it.

Q And in a money laundering case you’ve got to go to the

AG to get an exemption?

A You have to go to the AG. That’s why I would never

have authorized him to do that without permission. 

J.A. 1000 (emphasis added). Lincoln further testified to the following

when asked about his authority to authorize a drug operation of the

type managed by Michael: 

Q And kind of a paramount rule in drug investigations is

that you don’t let the drugs walk? 

A Correct. 

Q And that means you would never allow Mr. Fulcher to

sell marijuana to someone without recovering it very

shortly thereafter? 

A That’s correct. 

Q You would never authorize him to conduct drug sales on

behalf of the DEA?

A That’s true, and he knows that.

J.A. 1000-01 (emphasis added). 

On the basis of Lincoln’s testimony, the government argues that

Lincoln and his colleagues possessed, at most, apparent authority to

UNITED STATES v. FULCHER 11
approve the operation undertaken by the Fulchers, and that such

authority was insufficient to either negate intent or to support the

defense of public authority. Though we agree with the legal arguments advanced by the government, we nonetheless conclude that

there is insufficient evidence in the record regarding the extent of Lincoln’s authority (or that of his colleagues at the DEA). Thus, we ultimately hold that the district court did not abuse its discretion when

it concluded that the newly discovered evidence was material. 

1.

The defendants first seek to introduce Lincoln’s testimony for the

purpose of negating criminal intent. "The defendant may allege that

he lacked criminal intent because he honestly believed he was performing the otherwise-criminal acts in cooperation with the government. Innocent intent is not a defense per se, but a defense strategy

aimed at negating the mens rea for the crime, an essential element of

the prosecution’s case." United States v. Baptista-Rodriguez, 17 F.3d

1354, 1368 n.18 (11th Cir. 1994). 

While an honest belief that a defendant is acting in cooperation

with the government is a necessary element of establishing innocent

intent, it is not alone sufficient. That is, evidence that defendants

"honestly believed" that they acted in concert with a government official could abrogate the criminal intent necessary to prove the particular crimes with which the defendants were charged,3

 but, as we have

recognized previously, any such abrogation also depends upon the

nature of that official’s authority. 

3

See, e.g., 18 U.S.C. § 1956(a)(1) (substantive money laundering

counts; requiring the government to prove that the defendant "know[s]

that the property involved in a financial transaction represents the proceeds of some form of illegal activity") (emphasis added); United States

v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc) (conspiracy;

requiring government to prove, inter alia, a defendant’s connection to the

conspiracy beyond a reasonable doubt including a knowledge element,

which requires that a defendant at least have "join[ed] the conspiracy

with an understanding of the unlawful nature thereof and willfully

join[ed] in the plan on one occasion" (emphasis added)) (quoting United

States v. Roberts, 881 F.2d 95, 101 (4th Cir. 1989)). 

12 UNITED STATES v. FULCHER
For instance, if a government official possessed actual authority to

authorize the defendants’ activity, then criminal intent certainly

would be negated by the defendant’s honest belief that he was cooperating with such an official. See, e.g., Baptista-Rodriguez, 17 F.3d at

1368 n.18; United States v. Duggan, 743 F.2d 59, 83 (2d Cir. 1984).

However, if the official possessed neither actual nor apparent authority to authorize the otherwise criminal activity, then criminal intent

would not be negated. See United States v. Kelly, 718 F.2d 661, 665

(4th Cir. 1983). 

The question most readily presented by Lincoln’s testimony, and

a question we have not heretofore addressed, is neither whether intent

is negated when a defendant acts in concert with an official who does

not possess either actual or apparent authority nor whether criminal

intent is negated when a defendant acts in cooperation with an official

with actual authority but, rather, whether the criminal intent for the

crimes with which these defendants were charged is negated if they

were acting in conjunction with an official who possesses only apparent authority. We hold, consistent with our sister circuits that have

considered the question, that intent is not negated when a defendant

cooperates with an official who possesses only apparent authority. 

Essentially, defendants argue that, if they acted at the direction of

an official who possessed apparent authority, they would lack the requisite mens rea for the crimes with which they were charged. According to defendants, under such a circumstance, they would have made

only a mistake of fact — a cognizable defense negating intent when

the mens rea requirement for a crime is at least knowledge — regarding whether DEA officials possessed actual authority to authorize

their drug and money laundering activities. See United States v. Fuller, 162 F.3d 256, 262 (4th Cir. 1998) (stating that a mistake of fact

is a cognizable defense to an offense requiring knowledge). 

Any such defense is foreclosed, however, by our reasoning in

Kelly. There, the defendant relied on a government informant who

enlisted his help to assist in a government operation. 718 F.2d at 664.

The defendant argued that if he acted at the invitation of the informant, he could not have possessed the requisite criminal intent for

conspiracy to distribute drugs. See id. at 665. We disagreed, explaining that defendant’s mistake arose not from "a mistake of fact as to

UNITED STATES v. FULCHER 13
the [informant’s] status, but resulted from a misconception of the

legal prerogatives attached to that status." Id. We thus held that if the

defendant "indeed acted on the basis of a mistake . . . it was a mistake

of law, not a mistake of fact." Id. Of course, since defendant’s error

was a mistake of law, his belief did not constitute a defense to his

criminal act. See id. at 665; see also Fuller, 162 F.3d at 262 ("[A]

mistake of law such as claimed by Fuller is no defense because the

background presumption must be that ‘every citizen knows the

law.’"). 

Though we did not address in Kelly whether a defendant’s intent

may be negated when he acts pursuant to an official’s apparent

authority, the reasoning of that case compels us to now answer that

question in the negative. For, reliance on the apparent authority of a

government official is nothing more than a mistake about "the legal

prerogatives attached" to such status and thus constitutes a mistake of

law. See United States v. Rosenthal, 793 F.2d 1214, 1235-36 (11th

Cir. 1986) (stating that a "defendant may only be exonerated on the

basis of his reliance on real and not merely apparent authority.");

Duggan, 743 F.2d at 83 ("The mistake that defendants advance here

as an excuse for their criminal activities — their reliance on Hanratty’s purported authority — is an error based upon a mistaken view of

legal requirements and therefore constitutes a mistake of law."). 

Therefore, we hold that criminal intent is negated if two elements

are met: (1) the defendant honestly believed that he was acting in

cooperation with the government, and (2) the government official or

officials upon whose authority the defendant relied possessed actual

authority to authorize his otherwise criminal acts. 

2.

Defendants also seek to introduce Lincoln’s testimony to support

their defense of public authority. The public authority defense allows

"the defendant [to] seek[ ] exoneration based on the fact that he reasonably relied on the authority of a government official to engage him

in a covert activity." Baptista-Rodriguez, 17 F.3d at 1368 n.18; see

also United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995). Thus,

in contrast to the innocent intent doctrine, this affirmative defense

14 UNITED STATES v. FULCHER
allows a defendant to seek exoneration based upon his objectively

reasonable reliance on the authority of a government official. 

We have never addressed the scope of the public authority defense,

and, in particular, we have never explained whether such a defense

entitles a defendant to rely on the apparent authority of a government

official or whether actual authority is necessarily required. However,

we again find Kelly persuasive in answering this question. As

explained above, Kelly stands for the proposition that any mistake

about "the legal prerogatives" attached to a person’s status is not a

defense to a criminal act. See supra at 14. Our recognition of an

apparent public authority defense would contravene Kelly by creating

an affirmative defense in precisely such circumstances.4

Accordingly, we adopt the unanimous view of our sister circuits

that the defense of public authority requires reasonable reliance upon

the actual authority of a government official to engage him in a covert

activity.5See United States v. Pitt, 193 F.3d 751, 758 (3d Cir. 1999)

(stating that the public authority defense is limited "to those situations

where the government agent in fact had the authority to empower the

defendant to perform the acts in question"); United States v. Matta4The view we adopt today is also faithful to the common law origin

of the public authority defense. As the Third Circuit has pointed out,

under the public authority defense at common law "illegal actions committed by a public official or an officer of the law in the course of his

duties were not crimes." United States v. Pitt, 193 F.3d 751, 756 (3d Cir.

1999). Thus, requiring an official to possess actual authority is consonant

with the common law requirement that actions be taken "under color of

public authority" for invocation of the defense. United States v. ReyesVasquez, 905 F.2d 1497, 1500 n.5 (11th Cir. 1990); see generally Paul

H. Robinson, Criminal Law Defenses § 142 (1984). 

5We recognize that Rule 12.3(a)(1) requires a defendant to provide

notice to the government if he intends to claim either "a defense of actual

or believed exercise of public authority on behalf of a law enforcement

. . . agency at the time of the alleged offense." Fed. R. Crim. P. 12.3(a)(1)

(emphasis added). Since Rule 12.3 is merely a notice provision and does

not in any way alter the substantive legal standards with regard to the

public authority defense, we agree with the Third Circuit’s conclusion in

Pitt "that the law in jurisdictions where actual authority was required was

not altered" by the promulgation of Rule 12.3. 193 F.3d at 757. 

UNITED STATES v. FULCHER 15
Ballesteros, 71 F.3d 754, 770 n.12 (9th Cir. 1995) (stating that where

"a CIA agent could not lawfully authorize the violation of the federal

drug laws," the defense of public authority was not available); United

States v. Holmquist, 36 F.3d 154, 161 nn.6-7 (1st Cir. 1994) ("The

nonexistent defense of apparent public authority . . . must not be confused with the potentially viable defense of actual public authority

which may come into play when a defendant undertakes certain acts,

reasonably relying on the statements of a government agent cloaked

with actual authority."); Baptista-Rodriguez, 17 F.3d at 1368 n.18 ("If

the agent had no such power, then the defendant may not rest on the

‘public authority’; reliance on the apparent authority of a government

official is not a defense in this circuit, because it is deemed a mistake

of law, which generally does not excuse criminal conduct."). 

3.

The government requests that we decide as a matter of law that the

newly discovered evidence is not material despite the deferential standard of review we employ in reviewing a district court’s decision to

grant a new trial. We decline to reach that conclusion because neither

party has been furnished with an opportunity to introduce any evidence regarding whether Lincoln or his colleagues at the DEA possessed actual authority to sanction defendants’ money laundering and

drug activities. Furthermore, while Lincoln’s testimony certainly suggests that these officials did not possess such authority, his testimony

does not conclusively establish that this is so, especially with regard

to Michael’s drug activities. J.A. 1000-01 (testifying that he would

not authorize Michael to conduct drug sales on behalf of the DEA).

Therefore, if defendants can establish at a new trial that DEA officials authorized them to conduct the operation and that such officials

had the actual authority to do so, defendants would be entitled to

appropriate jury instructions on the defenses of public authority and

innocent intent.6 Since the jury would then be entitled to acquit the

6Of course, as a result of our decision today, if the district court

instructs the jury on innocent intent and the public authority defense at

a new trial, it should also provide an appropriate instruction articulating

that reliance on the apparent authority of a government official is not a

viable defense. 

16 UNITED STATES v. FULCHER
defendants if it concluded that defendants’ activities were legitimately

authorized, we hold that the district court did not abuse its discretion

in concluding that the newly discovered evidence is "material to the

issues involved." 

E.

The fifth element of Custis is whether the evidence is "such, and

of such nature, as that, on a new trial, the newly discovered evidence

would probably produce an acquittal." 988 F.2d at 1355. Much of our

analysis on the third and fourth elements of Custis is equally applicable here. In particular, we again note that the persuasive value of Lincoln’s testimony cannot be underestimated due to his status as a DEA

agent who participated in the investigation of this case. Furthermore,

as the district court observed, if the jury credits Lincoln’s testimony

that DEA officials may have led defendants to believe that they were

acting pursuant to governmental authority, "it would certainly

create[ ] a record more favorable for the Fulchers." J.A. 1055. Therefore, we cannot say that the district court abused its discretion in concluding that the newly discovered evidence "would probably produce

an acquittal." 

CONCLUSION

For the foregoing reasons, the district court’s decision to grant a

new trial to defendants is affirmed and the case is remanded for further proceedings consistent with this opinion.7

AFFIRMED

7

In light of our conclusion that the district court properly granted a

new trial, we need address only one additional issue on appeal. Michael

contends that his indictment was defective because it failed to provide

him with proper notice of the three drug-related violations underlying the

continuing criminal enterprise count. His argument is without merit,

however, because the CCE count in the indictment expressly incorporated by reference the predicate drug violations upon which the jury

relied in convicting Michael. See United States v. Tipton, 90 F.3d 861,

863 (4th Cir. 1996) (holding that an indictment which incorporated by

reference the predicate drug-related violations was sufficient to provide

adequate notice for a CCE count). 

UNITED STATES v. FULCHER 17