[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14843

________________________

D.C. Docket No. 1:11-cr-20026-KMM-5

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

versus

FAUSTO AGUERO ALVARADO, 

 Defendant–Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(December 11, 2015)

Before JORDAN, JULIE CARNES, and LINN,

∗ Circuit Judges.

JULIE CARNES, Circuit Judge: 

 ∗

 Honorable Richard Linn, United States Circuit Judge for the Federal Circuit, sitting by 

designation.

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For less than a year, Defendant Fausto Aguero Alvarado worked as an 

undercover confidential informant (“CI”) for the United States Drug Enforcement 

Administration (“DEA”) in Central America. Formalizing this role, he signed 

written agreements with federal DEA agents that set out the parameters of his 

duties, and thereafter assisted these agents with investigations into drug and 

weapons trafficking operations. After working with the agents for a few months, 

Defendant apparently came to the realization that he could make more money by 

actually dealing drugs and weapons than by merely reporting on those who do. So, 

deciding to make a career change, Defendant began working in earnest with some 

of the drug traffickers on whom he had been gathering intelligence, as well as 

some new acquaintances, in an effort to trade weapons for large quantities of 

cocaine. Not surprisingly, Defendant kept this new entrepreneurial venture to 

himself, conceding that he never at any time, during a criminal conspiracy that 

spanned sixteen months,

1 informed his supervising federal agents what he was up 

to or that there was even a weapons-for-drugs transaction in the offing with his 

new-found working partners. In fact, these supervising agents had no idea that 

Defendant had been involved in the conspiracy that ultimately led to his indictment

 

1

 Often in its brief, the Government refers to the length of the conspiracy as being nineteen

months. It may well be that the conspiracy lasted that long, but inasmuch as the dates for the 

conspiracy listed in the indictment (June 2009–October 2010) span only sixteen months, the 

latter number will be used throughout this opinion. 

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until they were later informed by other law enforcement officials who had 

uncovered Defendant’s criminal activities.

At trial, Defendant did not deny that he and his fellow conspirators planned 

and took steps to trade weapons in exchange for obtaining large quantities of 

cocaine. His explanation, which he offered in his trial testimony before the jury,

was that throughout his involvement in the charged conspiracy, he considered 

himself to be acting in his capacity as an informant, merely gathering intelligence 

as part of that role. But as to when he planned to actually share with supervising 

agents his sixteen months of covert “intelligence gathering,” such a conversation 

was apparently never on Defendant’s “to-do” list. 

In its instructions, the district court explained that the jury should find 

Defendant not guilty if it concluded that he had honestly believed he was 

performing the charged criminal conduct to help law enforcement. The jury

convicted Defendant on the sole count of the indictment: conspiracy to distribute 

five kilograms or more of cocaine with knowledge that it would be imported into 

the United States. 

Defendant now appeals his conviction, as well as the sentence subsequently 

imposed by the district court. As to his conviction, Defendant argues that, 

although the district court had given the above-described “honest belief” 

instruction, it erred by refusing to also instruct the jury that it should consider 

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whether authorities had actually authorized Defendant to engage in the charged 

conduct. He also cites as error the court’s refusal to allow Defendant to call an 

expert witness who would have testified that the agents supervising Defendant did 

not run their operation in complete compliance with DEA regulations. As to his 

sentence, Defendant argues that the 360-month, within-Guidelines, sentence 

imposed by the court was substantively unreasonable. After careful review of the 

record and with the benefit of oral argument, we affirm Defendant’s conviction and 

sentence. 

BACKGROUND

I. Factual Background

A. Defendant’s CI Work

In 2008, while living in Colombia, Defendant obtained some information 

regarding weapons and narcotics activity. Having worked as a CI in the past, he 

had received training in field operations and intelligence gathering. Accordingly, 

around April of 2008, Defendant went to the United States Embassy in Bogota, 

Colombia, to share his recently-gained intelligence with the DEA. After providing 

a previously-assigned code that identified him as a former CI, Defendant met with 

DEA Agents Matthews and Romain and offered them information that was 

potentially useful to the dismantling of a drug trafficking cartel. 

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Other meetings followed this first session, and Agent Romain decided that 

he wanted to use Defendant to infiltrate an organization in which one undercover 

operative was already working. Accordingly, on August 28, 2008, Defendant and 

Agent Romain entered into a contract formally authorizing Defendant to work as a 

CI. The agreement made clear that Defendant would have no immunity from 

prosecution for activities that were not specifically authorized by his controlling 

investigators. Further reinforcing that condition, the contract required Defendant 

to agree that he would take no independent action on behalf of the DEA or the 

United States government. The term of the agreement was one year, meaning that 

it would expire in August 2009. 

Defendant then began providing Romain with information about Franklin 

McField-Bent, a Nicaraguan national known to authorities as the supplier of a 

transportation service used by drug dealers to move cocaine from the interior of 

Colombia, to the Nicaragua/Honduras border, to Guatemala, and then to Mexico. 

Romain sought Defendant’s assistance as part of his effort to build a case against 

McField-Bent and the Titos Montes trafficking organization.

Also in August 2008, Defendant began working with DEA Agent Ball in 

Honduras on an investigation into a terrorist named Jamal al Yousef. Ball and 

Defendant worked closely together during the investigation. Some of Defendant’s 

phone calls to targets in the Jamal al Yousef investigation were recorded under 

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Ball’s direction and Ball met with Defendant, both before and after key meetings 

with targets, to instruct and debrief him. Defendant was paid $8,800 for his work

sometime in 2008 and worked on the investigation until March 2009. 

In early September 2008, Defendant signed two other CI agreements, each 

with a one-year term, with DEA Agents Sanes and Peterson, who were working in 

Honduras and Panama, respectively. Like the first agreement with Agent Romain, 

these agreements reiterated that Defendant could not act independently of his 

controlling agents. On October 2, 2008, Defendant met with both Agents Romain 

and Sanes to share information about McField-Bent. Then, sometime between 

October and December 2008, as a result of safety and security issues, Agent Ball 

instructed Defendant to leave Honduras.

By January 2009, Defendant’s work and contact with the above agents had 

largely ceased, the exception being some continued work with Agent Ball on the al 

Yousef terrorist investigation, which ended in March 2009. Indeed, in January 

2009, Defendant emailed Agent Ball, informing him that Agent Romain had told 

him to “fruck off” and leave Colombia as soon as possible because “you guys 

didn’t want to work with me” any longer. It was around this time that Agent Ball 

became aware of an ongoing investigation into Defendant’s unauthorized criminal 

activities. In fact, by May, Agent Romain had left Colombia and had no further 

contact with Defendant. 

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B. Defendant’s Involvement in Charged Conspiracy

According to the evidence presented at trial,2 Defendant was integrally and 

actively involved in the charged criminal conspiracy, which spanned over sixteen

months. The overarching goal of the conspiracy was to obtain large quantities of 

cocaine, after which the transportation services of McField-Bent would be utilized 

to transport the drugs from Colombia to Mexico; thereafter, the drugs would be 

moved across the border to the United States. Defendant focused much of his 

efforts on acquiring drugs by trading weapons with an individual who could supply 

those drugs. This individual, Jaime Velasquez, purportedly was the commander of 

an illicit Colombian paramilitary group known as Autodefensas, which group very 

much wanted weapons. In actuality, Velasquez was an undercover operative who 

was working for both the Colombian government and the United States

Department of Homeland Security. 

Defendant was introduced to Velasquez as a potential weapons supplier and,

in a telephone conversation on June 12, 2009, Velasquez and Defendant discussed 

Velasquez’s desire to order SAM-7 missiles.3

 Defendant explained that he could 

 

2

 We take the evidence in the light most favorable to the Government. See United States v. 

Cavallo, 790 F.3d 1202, 1229 (11th Cir. 2015). That said, neither at trial nor on appeal has 

Defendant disputed his conduct during the charged conspiracy. Instead, he has argued that 

because he had been an informant, the Government should be deemed to have authorized him to 

undertake these actions. 

3 The SAM-7 missile is a Soviet-built, shoulder-launched, surface-to-air missile. The purpose of 

this missile is to launch air defense attacks and to force low-flying aircrafts into higher altitudes 

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be the intermediary for a potential exchange. Three days later, at an in-person 

meeting with Velasquez and others, Defendant stated that he worked with a “really 

good office,” which Velasquez understood to mean a good drug trafficking 

organization. Velasquez suggested that they start with a deal for six grenade 

launchers, which Defendant would arrange to have transported from Honduras to 

Colombia. Defendant proposed an exchange of one kilogram of cocaine for each 

grenade launcher. Defendant also told Velasquez that he could exchange cocaine

for weapons in Central America and that McField-Bent was in charge of the drug 

transportation logistics. At some point during the meeting, Defendant had a 

telephone conversation with McField-Bent in which he mentioned that a woman 

named Lina Ester Grendet had given him “the terrain, that farm already, that 

1,000-meter property,” which Velasquez understood to mean that Lina had given 

Defendant 1,000 kilograms of cocaine.4

 Defendant explained that he was 

purchasing the cocaine from Lina for $7,000 per kilogram and planned to sell it for 

$9,500 to an individual named David. 

 

where radar can detect them. See Missile Firing Tube and Grip Stock, Surface-to-Air, SA7, 

http://airandspace.si.edu/collections/artifact.cfm?object=nasm_A19930358000 (last visited Sept. 

21, 2015). 

4

 Throughout his dealings with Velasquez, Defendant used code words when discussing 

weapons or drugs. Likewise, he urged Velasquez to be vigilant as to the possibility of wire 

interceptions. 

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One month later, at a meeting on July 25, 2009, Velasquez again expressed 

interest in purchasing missiles from Defendant. Defendant asked Velasquez if 

Velasquez could help him recover some money that Lina owed him. Velasquez 

understood Defendant to be asking him to put pressure on Lina to pay back this 

money to Defendant. Defendant sent Velasquez an email with Lina’s contact 

information, including her address and a photograph of her. That same month, 

Defendant received two payments via wire transfer: one from Velasquez and one 

from Lina. 

Negotiations between Velasquez and Defendant and his group concerning 

this guns-for-drugs initiative continued for months until, finally, in May 2010, 

Defendant, McField-Bent, Jeison Archibold, and a Miguel Vilella met with 

Velasquez, who agreed to provide 400 kilograms of cocaine to Defendant’s group 

every twenty days in exchange for rocket-propelled grenade launchers, grenades, 

and other weapons. Talks continued and the deal was to be finalized with 

Velasquez at a meeting on October 8, 2010. But instead, Colombian officials

arrested the conspirators at this meeting. Defendant, who was in Bogota and not 

present at that meeting, was arrested a month later. 

Although the weapons-trading aspect of the conspiracy was a focus of 

Defendant’s work, Defendant was also involved in other efforts by the group to 

acquire drugs independently of Velasquez. For example, in March 2010, 

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Defendant, McField-Bent, and Archibold shipped a load of cocaine that was later 

seized en route to Honduras by Colombian authorities. Recorded conversations 

revealed discussion of an additional shipment in May 2010. In addition, as set out 

above, Defendant had purchased cocaine from Lina at some point prior to June 

2009. 

Notably, most of the above-described events occurred after the August and 

September 2009 expiration dates of Defendant’s CI agreements with the federal 

agencies. All of them occurred after Agent Romain had told Defendant that the 

agents no longer wanted to work with him. And at no time during the sixteenmonth conspiracy did Defendant ever inform any of his supervising agents that 

these very significant criminal acts were occurring or that he was involved in their 

planning.

II. Procedural Background 

On October 8, 2010, Defendant’s co-conspirators were arrested. A month 

later, on November 11, 2010, Defendant suffered the same fate. A Honduran 

national, Defendant was arrested in Colombia on charges that he had conspired to 

traffic in arms and had possessed a false Colombian identification card. 

Represented by counsel, Defendant explained to prosecutors that his arrest was a 

mistake because he was actually an undercover informant for the United States 

DEA and FBI. Requesting and receiving access to his iPhone so that he could 

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show authorities the reports he had sent by email to American federal agents, 

Defendant was able to open his email account, but could point to no emails sent to 

federal agents. Ultimately, Defendant was unable to provide any proof to 

Colombian authorities that he was an informant for American law enforcement

officials. 

In February 2011, Defendant pled guilty to these Colombian charges, 

admitting that he had participated in meetings with Archibold and Velasquez on 

June 15 and July 25, 2009, that 442 kilograms of cocaine and numerous weapons5

had been seized by authorities on March 17, 2010, and that he had purchased a 

false Colombian identification card. 

A month prior to this guilty plea, in January 2011, Defendant, along with 

McField-Bent, Archibold, and others, was indicted on federal charges in the United 

States. The indictment charged Defendant with (1) conspiracy to provide material 

support and resources (namely, grenade launchers and other weapons) to a 

Colombian terrorist organization, in violation of 18 U.S.C. §§ 2339A(b)(1) and 

2339B(a)(1), and (2) conspiracy to distribute five kilograms or more of cocaine,

knowing that it would be unlawfully imported into the United States, in violation 

of 21 U.S.C. §§ 959(a)(2), 960(b)(1)(B), and 963. 

 

5

 Defendant acknowledged that 24 grenades, 6 grenade launchers, an unspecified number of 

semi-automatic rifles, and 100 rounds of 9 mm ammunition had been seized by authorities. 

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But when American federal prosecutors (“the Government”) attempted to 

extradite Defendant from Colombia to try him on these charges, Colombian 

authorities refused to extradite Defendant unless the Government agreed that he 

would not be charged with the § 2339A weapons offense. The Government 

agreed, and in June 2013, a superseding indictment was returned charging 

Defendant with only one count: conspiracy to distribute five kilograms or more of 

cocaine, knowing that it would be unlawfully imported into the United States. 

Co-defendants McField-Bent and Archibold both pled guilty, with McFieldBent later testifying as a Government witness at Defendant’s trial. Defendant, 

however, decided to go to trial for the purpose of arguing that he had been 

authorized by federal agents to engage in the charged criminal activity. As 

required by Federal Rule of Criminal Procedure 12.3(a)(1),

6 Defendant filed a 

pretrial notice of intent to present a public authority defense and included a list of 

federal agents for whom he had worked. The notice indicated that Defendant had 

worked for all the listed agents between 2008 and 2011. 

In response, the Government filed a motion in limine to preclude Defendant 

from raising a public authority or entrapment-by-estoppel defense. The motion 

noted that Defendant had proffered no evidence that he was authorized to 

 

6

 “If a defendant intends to assert a defense of actual or believed exercise of public authority on 

behalf of a law enforcement agency or federal intelligence agency at the time of the alleged 

offense, the defendant must so notify an attorney for the government in writing and must file a 

copy of the notice with the clerk [of court].” Fed. R. Crim. P. 12.3(a)(1).

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participate in any of the illicit meetings or calls occurring during the conspiracy. 

Indeed, having broken off contact with agents during this time period, Defendant 

had failed even to notify agents of those meetings and calls. Further, the written 

agreements that Defendant signed explicitly stated that he was not authorized to

participate in any criminal activity unless specifically authorized in writing by a 

prosecutor or his controlling agents. In short, the motion contended that the above 

defenses were unavailable to Defendant absent his production of evidence 

demonstrating that he was specifically authorized to engage in the conduct charged 

in the indictment. 

Responding to the Government’s motion, Defendant argued that the public 

authority defense should be available to him.

7

 He argued that he had “general”

authorization to gather intelligence and therefore was not required to prove that an 

agent had affirmatively authorized any particular conduct. He further argued that 

he should also be permitted to present an innocent intent defense, which he 

contended is merely another way of arguing that a defendant lacks mens rea. 

The magistrate judge held a hearing on the Government’s motion. Although 

a defendant must first show authorization to commit the charged criminal conduct 

before he will be permitted to assert a public authority defense, Defendant 

presented no testimony to establish a factual basis for his position. The 

 

7

 Defendant also mentioned the entrapment-by-estoppel defense, but ultimately did not pursue 

that defense.

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Government likewise called no witnesses. Instead, the hearing consisted of only 

arguments from each party as to how specific an affirmative communication from 

a Government agent must be to provide authority for an informant’s actions. 

Because Defendant had presented no evidence of “any direct or implied 

affirmative representation sufficient to establish the defense[] of public authority,” 

and no evidence to establish the reasonableness of his alleged belief that he was 

working for the DEA while involved in the conspiracy, the magistrate judge 

recommended that the district court disallow Defendant’s public authority defense.

The magistrate judge agreed, however, that Defendant should be permitted to argue

an innocent intent theory of defense: that is, that Defendant honestly believed he 

was working for the DEA. 

Defendant had also filed a pretrial notice of intent to rely upon expert 

testimony from a former DEA agent who would testify that the DEA agents who 

supervised Defendant did not follow the agency procedures in place for activating, 

deactivating, and terminating CIs. Finding persuasive the Government’s motion to 

exclude this agent’s testimony, the magistrate judge determined that, because the 

pivotal issue at trial would concern whether Defendant honestly believed that he 

was acting on behalf of the DEA while participating in the charged conspiracy, an 

expert’s testimony about the extent to which the supervising agents followed 

procedures would shed no light on this matter. Further, according to the magistrate 

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judge, any opinion by the expert as to Defendant’s likely beliefs would violate 

Federal Rule of Evidence 704(b), which prohibits expert testimony about whether 

a defendant had a mental state that constitutes an element of a charged offense or 

defense. 

The district court adopted the magistrate judge’s recommendation to exclude 

both the public authority defense and the expert witness. At trial, the Defendant 

testified about his involvement in the charged conspiracy and his belief that he had 

been authorized by federal agents to act as he did. The district court concluded 

that Defendant had still failed to offer evidence that would support a public 

authority defense. The court, however, permitted Defendant to argue innocent 

intent, and it also charged the jury on that theory of defense. The jury found 

Defendant guilty on the single count of the indictment. The district court 

sentenced Defendant to 360 months’ imprisonment and five years’ supervised 

release. This appeal followed.

DISCUSSION

I. District Court’s Refusal to Give Defendant’s Requested Instruction on 

the Public Authority Defense

As noted, at the hearing before the magistrate judge concerning whether 

Defendant would be permitted to present a public authority defense, Defendant 

failed to present any evidence to qualify him for this defense. At trial, he had a 

second chance to make his case for a public authority defense when he testified in 

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his own behalf. The district court concluded, however, that Defendant had still 

failed to provide an evidentiary foundation for the defense. Accordingly, the court 

declined to instruct the jury to consider a public authority defense, but did instruct 

the jury to consider whether Defendant acted with an “innocent intent.” Defendant 

argues that the district court erred in rejecting his proposed instruction on the 

public authority defense.

A. Potential Defenses Available to a Defendant Who Alleges 

Authorization of His Criminal Conduct by Law Enforcement 

When a defendant has engaged in criminal conduct at the alleged behest of

people who identify themselves as law enforcement officers, three defenses are 

potentially available in this Circuit: public authority, entrapment-by-estoppel, and 

innocent intent. Over twenty years ago, we noted “the muddled state of the law in 

this circuit regarding defenses based on perceived governmental authority.” 

United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994). 

Given the subtle distinctions between the defenses that are available when a known 

governmental actor has allegedly directed a defendant to commit a criminal act, a

review of these doctrines is a useful way to begin our analysis of the parties’ 

respective positions. 

1. Public Authority

A defendant may assert a public authority affirmative defense when he has 

knowingly acted in violation of federal criminal law, but has done so in reasonable 

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reliance on the authorization of a governmental official. Id.; see also United States 

v. Reyes-Vasquez, 905 F.2d 1497, 1500 n.5 (11th Cir. 1990) (a public authority 

defense applies when a defendant alleges that his actions were taken under color of 

public authority). For example, an informant who participates in a typical 

undercover drug sting operation at the behest of the DEA could potentially assert a 

public authority defense were he later to be prosecuted for his participation. 

The public authority defense is narrowly defined, however, and a defendant 

will not be allowed to assert the defense, or to demand that the jury be instructed 

on it, unless he meets certain evidentiary prerequisites. First, as the name of the 

defense implies, a federal law enforcement officer must have actually authorized 

the defendant to commit the particular criminal act at issue, and the defendant must 

have reasonably relied on that authorization when engaging in that conduct. 

United States v. Johnson, 139 F.3d 1359, 1365–66 (11th Cir. 1998) (public

authority defense is only available when a defendant can show that he “relied on 

official government communications before acting in a manner proscribed by law,” 

and that this reliance was reasonable). 

Second, the government official on whom the defendant purportedly relied 

must have actually had the authority to permit a cooperating individual to commit 

the criminal act in question. Id. at 1365 (“The actual authority defense requires 

proof that a defendant reasonably relied upon the actual authority of a government 

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official to request participation in an illegal activity.” (emphasis added)). If, 

contrary to the defendant’s genuine belief, the official possessed no such authority, 

then the public authority defense cannot be asserted. See Baptista-Rodriguez, 17 

F.3d at 1368 n.18 (“[R]eliance on the apparent authority of a government official 

is not a defense in this circuit . . . .”); United States v. Anderson, 872 F.2d 1508,

1516 (11th Cir. 1989) (disallowing defendants’ reliance on apparent authority of 

CIA agent because the latter lacked actual power to authorize violation of laws); 

United States v. Rosenthal, 793 F.2d 1214, 1236 (11th Cir. 1986), modified on 

other grounds, 801 F.2d 378, cert. denied, 480 U.S. 919 (1987) (same). 

2. Entrapment-by-Estoppel

Closely related to the public authority defense is the entrapment-by-estoppel 

defense. See United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006) (noting the 

similarity of the elements that comprise the two defenses and that some courts have 

treated them as being “synonymous”). In contrast to a public authority defense, 

which potentially protects a defendant who knowingly engages in acts that he 

recognizes to be in violation of the law, an entrapment-by-estoppel defense applies 

to a defendant who reasonably relies on the assurance of a government official that 

specified conduct will not violate the law. Baptista-Rodriguez, 17 F.3d at 1368 

n.18 (entrapment-by-estoppel “applies when a government official tells a 

defendant that certain conduct is legal and the defendant commits what would 

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otherwise be a crime in reasonable reliance on the official’s representation”);

accord United States v. Strahan, 565 F.3d 1047, 1051 (7th Cir. 2009) (same); 

United States v. Thompson, 25 F.3d 1558, 1564 (11th Cir. 1999) (the doctrine 

applies when an official tells a defendant that certain conduct is legal and the 

defendant believes the official); United States v. Hedges, 912 F.2d 1397, 1405 

(11th Cir. 1990) (equitable estoppel defense applicable where military officer 

relied on advice of counselor, whose job it was to give such advice, as to whether 

his conduct was legal).

Thus, entrapment-by-estoppel creates a narrow exception to the general rule 

that ignorance of the law is no defense. Thompson, 25 F.3d at 1561 n.2 (holding 

doctrine to be applicable where an AUSA told a convicted felon that he would be 

immune from prosecution for future possession of a firearm so long as he was 

cooperating with the Government in its investigation). Like the public authority 

defense, entrapment-by-estoppel can apply only when the defendant’s reliance on 

an official’s reassurance is reasonable. Baptista-Rodriguez, 17 F.3d at 1368 n.18; 

see also United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006) (holding that

entrapment-by-estoppel defense applies when a defendant reasonably believes a 

government official’s assurance that certain conduct is legal); United States v. 

Burrows, 36 F.3d 875, 882 (9th Cir. 1994) (noting that defendant’s reliance must 

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be reasonable for either a public authority or entrapment-by-estoppel defense to 

apply). 

Also like the public authority defense, entrapment-by-estoppel requires a 

showing that a government official affirmatively communicated to the defendant 

the official’s approval of the conduct at issue. See Johnson, 139 F.3d at 1365 (both 

entrapment-by-estoppel and public authority defense require reliance on official 

government communications that authorize violation of the law); United States v. 

Pardue, 385 F.3d 101, 108–09 (1st Cir. 2004) (entrapment-by-estoppel defense 

requires an affirmative representation by a government official that defendant’s 

conduct would be legal).

The entrapment-by-estoppel defense differs from the public authority 

defense in that the latter requires that the government official who sanctions the 

illegal activity have actual authority to approve the defendant’s criminal activity, 

whereas the entrapment-by-estoppel defense only requires that the official have 

apparent authority. United States v. Stallworth, 656 F.3d 721, 727 (7th Cir. 2011); 

cf. Hedges, 912 F.2d at 1405 (defendant was entitled to receive an entrapment-byestoppel jury instruction even though the governmental agent could not actually 

waive or authorize a violation of the statute). And given the practical difficulty in 

the mine-run of cases to draw a meaningful distinction between the culpability of a 

defendant who knows the conduct he has been authorized to commit is illegal 

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(public authority defense) and a defendant who has been assured that the conduct is 

legal (entrapment-by-estoppel defense), it is the public authority defense’s 

requirement of actual authority that creates the most significant demarcation 

between the two defenses. Stallworth, 656 F.3d at 726–27. 

That said, not all courts find merit in this dichotomy between actual and 

apparent authority. In particular, the Second Circuit has questioned the wisdom of 

such a distinction, given “that the motivating principle underlying the doctrine is 

‘the unfairness of prosecuting one who has been led by the conduct of government 

agents to believe his acts were authorized.’” United States v. Giffen, 473 F.3d 30, 

42 n.12 (2d Cir. 2006) (quoting United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 

1995)). According to the Second Circuit, when an individual is being prosecuted 

for conduct that a government official has solicited, it is just as unfair to hold him 

criminally responsible when an official’s authority was only apparent as it would 

be to do so when that authority was actual. Id. Indeed, because most individuals 

are ill-equipped to figure out whether an approving official has actual versus only 

apparent authority, the Giffen court noted its understanding that “the defense of 

entrapment by estoppel in this circuit [applies] to encompass circumstances where 

the defendant reasonably relies on the inducements of government agents who 

have apparent authority to authorize the otherwise criminal acts—even if they do 

not in fact possess such authority.” Id. 

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In any event, the actual authority of the supervising agents here to authorize 

Defendant’s conduct is undisputed and Defendant no longer argues on appeal that 

he was entitled to an entrapment-by-estoppel defense. Accordingly, we need not 

address the merits of the actual/apparent authority distinction, nor linger any 

further in our examination of the entrapment-by-estoppel defense. 

3. Innocent Intent 

As noted, the district court instructed the jury that it should acquit Defendant 

if it found that he acted with an innocent intent during the sixteen months he 

participated in the charged drug conspiracy. Unlike public authority and 

entrapment-by-estoppel, which are affirmative defenses, an innocent intent theory 

is a “defense strategy aimed at negating the mens rea for the crime.” BaptistaRodriguez, 17 F.3d at 1368 n.18. Utilizing this “defense tack” in cases involving 

“perceived governmental authority,” the defendant may argue his innocent intent 

as a means to persuade the jury that the prosecution has not met its burden of 

proving his criminal intent. Id. 

Thus in a case such as this, where a defendant is found not to have met the 

requirements necessary for a public authority defense, he can nonetheless 

effectively backdoor the rejected defense by testifying that he genuinely believed 

that the criminal acts he performed were done at the direction, and with the 

permission, of an appropriate governmental agency. Armed with that testimony, 

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his attorney can then argue to the jury that the defendant lacked criminal intent 

and, if the jury accepts that argument, it can then properly return a verdict of not 

guilty. Id. Indeed, because this defense strategy works to negate a required 

element of the offense that the Government must prove beyond a reasonable doubt, 

a defendant need only raise a reasonable doubt as to whether he possessed the 

necessary criminal intent. See Anderson, 872 F.2d at 1517–18 & n.14 (affirming 

jury instruction that defendants should be exonerated if jury had “a reasonable 

doubt [as to] whether the defendants acted in good faith[,] sincere[ly] believ[ing] 

that their activity was exempt by the law”).

Our Circuit has now, for three decades and in several cases, affirmed the 

viability of this innocent intent “defense” in cases where the defendant argues that 

his criminal acts were undertaken as part of his cooperation with the Government. 

See, e.g., United States v. Juan, 776 F.2d 256, 257–58 (11th Cir. 1985) (vacating 

conditional plea of guilty to “drug offenses” where defendant had argued that he 

lacked criminal intent because he thought he was acting in cooperation with the 

Government, but district court disallowed defendant access to evidence relevant to 

support his claim of “innocent intent”); Baptista-Rodriguez, 17 F.3d at 1363, 1368 

& n.18 (reversing conviction for conspiracy to import cocaine, where defendant 

testified that he “believed he was working as an authorized undercover civilian 

operative when he arranged the smuggling venture,” because district court

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24

improperly limited cross-examination of FBI agent that would have shored up 

defendant’s argument that he “lacked the requisite mens rea for the crimes: 

specific intent to violate the law”); United States v. Ruiz, 59 F.3d 1151, 1154–55

(11th Cir. 1995) (reversing a conviction for conspiracy to distribute drugs because 

a general willfulness instruction was inadequate to address defendant’s valid 

theory of defense, which was her genuine belief that she was performing legitimate 

law enforcement activities, and the district court should instead have given a 

willfulness instruction that was better tailored to defendant’s testimony); United 

States v. Grajales, 450 F. App’x 893, 900–01 (11th Cir. 2012)8 (reversing drug 

conspiracy and robbery convictions where defendant testified that he genuinely, 

albeit mistakenly, believed he was working with law enforcement, but district court 

did not give a proper instruction concerning innocent intent).

Yet, in recognizing the availability of an innocent intent theory of defense 

for a defendant who has failed to meet the standard for a public authority 

affirmative defense, we acknowledge that our Circuit may be the only circuit to 

explicitly allow an innocent intent defense in this context. Or at least that’s what 

the Second Circuit observed in United States v. Giffen, 473 F.3d 30 (2d Cir. 2006). 

In rejecting the defendant’s public authority and entrapment-by-estoppel defenses, 

 

8

 Aware that our non-published decisions carry no precedential weight, see 11th Cir. R. 36-2, we 

do not rely on or endorse the reasoning or holding in Grajales, but instead cite it only to show 

that the “innocent intent” theory of defense is not a relic of the past in this Circuit. 

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25

that court turned to the innocent intent “defense”—which it described as “negation 

of intent”—and remarked that “[s]uch a legal theory . . . has been expressly

recognized only in the Eleventh Circuit.” Id. at 43. While not firmly deciding 

whether it might ever find a circumstance that would justify allowing a defendant 

who could not show public authority to nonetheless articulate, as a theory of 

defense, that he “honestly, albeit mistakenly, believed he was committing the 

charged crimes in cooperation with the government,” the court acknowledged that 

it had “great difficulty with this proposition, which would swallow the actual 

public authority and entrapment-by-estoppel defenses.” Id.; see also United States 

v. Wilson, 721 F.2d 967, 975 (4th Cir. 1983) (“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.”).

9

 

We are not called on in this case to reexamine the merits of the “innocent 

intent” theory of defense. The district court gave that instruction at the request of 

Defendant. The Government has not cross-appealed on this ground. And even if 

this issue were squarely before us, we would nonetheless be obliged to follow our 

 

9

 The Fourth Circuit later, however, recognized a version of this theory of defense, but only 

where the government official possesses actual authority. See United States v. Fulcher, 250 F.3d 

244, 252–53 (4th Cir. 2001) (holding that criminal intent is negated only if “(1) the defendant 

honestly believed that he was acting in cooperation with the government, and (2) the government 

official [] upon whose authority the defendant relied possessed actual authority to authorize his 

otherwise criminal acts”).

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binding precedent. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th 

Cir. 2008) (the prior-precedent rule requires that we follow a prior binding 

precedent “unless and until it is overruled by this court en banc or by the Supreme 

Court”).

But as Defendant’s primary complaint on appeal is the district court’s failure 

to instruct the jury on his public authority defense, the fact that he received an 

instruction that was arguably more helpful, and that might well have been 

disallowed in other circuits, should provide him some perspective, if not solace. 

And it is to the omitted public authority instruction that we now turn. 

B. District Court’s Refusal to Give a Public Authority Defense

Instruction

1. Absence of Evidentiary Support for Defense

In an effort to distill the essence of what is a confusing argument by 

Defendant on this issue, we infer his contention to be that he offered sufficient 

evidence to support a public authority defense and therefore the district court erred 

when it refused to instruct the jury to consider this defense.10 We review a district 

 

10 Defendant articulated this issue differently in his opening brief. There he argues that the 

district court erred by adopting the magistrate judge’s recommendation that Defendant be 

precluded from asserting a public authority defense. But because Defendant produced no 

testimony at the pretrial hearing—not even his own—to show that he had been authorized by 

agents to engage in the criminal conspiracy for which he was indicted, the magistrate judge had 

no basis to conclude anything but that Defendant had failed to offer evidence of authorization by 

government agents. 

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court’s refusal to give a requested jury instruction for abuse of discretion. United 

States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en banc). Further, when the 

defendant seeks an instruction on a proposed defense that contains multiple 

elements, as affirmative defenses often do, the defendant must proffer evidence 

that supports each element. United States v. Flores, 572 F.3d 1254, 1266 (11th 

Cir. 2009); United States v. Montgomery, 772 F.2d 733, 736 (11th Cir. 1985); 

United States v. Gant, 691 F.2d 1159, 1165 (5th Cir. 1982). In evaluating a 

defendant’s evidentiary proffer, a court considers the evidence in the light most 

favorable to the defendant. United States v. Hedges, 912 F.2d 1397, 1405–06 

(11th Cir. 1990). 

But as to the amount of evidence that a defendant must first produce in order 

to receive an instruction on his proposed defense, our precedent has not been 

consistent in its description of that standard. On the one hand, there is caselaw 

 

This pretrial hearing did not end Defendant’s efforts to present the defense, however. He 

testified at length at trial as to his interactions with the agents and as to his belief that he was 

authorized by the agents to engage in the sixteen-month conspiracy for which he was being tried. 

So, contrary to his argument, Defendant was allowed, through his own testimony, to present

evidence in support of a public authority defense at trial. What he was not allowed to do, 

however, was have the jury consider that defense because, having heard his testimony, the 

district court did not alter its conclusion that Defendant had failed to show a basis for the 

defense. 

Defendant did ask the district court whether it would be willing to instruct the jury on the public 

authority defense in light of his testimony, which request the court denied. Thus, 

notwithstanding Defendant’s characterization of his argument, we nonetheless review what we 

perceive to be the essence of his complaint: the failure of the district court to instruct the jury on 

the public authority defense. 

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indicating that a defendant is entitled to an instruction on an affirmative defense 

when, taking the evidence in the light most favorable to him, “there exists evidence 

sufficient for a reasonable jury to find in his favor” on that defense. Mathews v. 

United States, 485 U.S. 58, 63 (1988); accord United States v. Gutierrez, 745 F.3d 

463, 472 (11th Cir. 2014) (addressing affirmative defense of self-defense). Thus, 

under this line of authority, when pursuing an affirmative defense that sets out a 

multi-part test, the defendant must have offered evidence sufficient to prove each 

element of that defense. See Flores, 572 F.3d at 1266 (where the defendant failed 

to offer evidence sufficient to prove each element of the defense, district court 

properly refused to instruct jury on affirmative defense of justification); 

Montgomery, 772 F.2d at 736 (because a defendant must first produce sufficient 

evidence to prove the essential elements of an affirmative defense and defendant 

failed to do so, the district court properly disallowed affirmative defense of 

necessity). See also United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006) 

(holding that a court may preclude an affirmative defense when the court accepts 

as true the evidence proffered by the defendant, but finds this evidence to be 

insufficient as a matter of law to support the affirmative defense). 

On the other hand, we have also described the standard as requiring an 

instruction if there is “any foundation” in the evidence. Hedges, 912 F.2d at 1406. 

Accord United States v. Arias, 431 F.3d 1327, 1340 (11th Cir. 2005); United States 

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v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995); United States v. Lively, 803 F.2d 

1124, 1126 (11th Cir. 1986) (quoting United States v. Young, 464 F.2d 160, 164 

(5th Cir. 1972)). And sometimes we have articulated both standards in the same 

opinion. See, e.g., United States v. Middleton, 690 F.2d 820, 826 (11th Cir. 1982) 

(noting that a defendant who has produced “some evidence” should receive an 

instruction on his proposed defense, but also quoting with approval language 

indicating that the proffered evidence must be “legally sufficient to render the 

accused innocent”) (quoting Strauss v. United States, 376 F.2d 416, 419 (5th Cir. 

1967)).

Even if we assume some tension between these two standards and also 

assume that the “any foundation/some evidence” iteration poses an easier test for a 

defendant to meet, there is no need to try to harmonize those standards in this case. 

Because Defendant failed to offer any evidence that a law enforcement official 

authorized his criminal conduct, he failed to meet either standard: meaning that he 

was not entitled to a jury instruction concerning the public authority defense. 

As explained above, a defendant who seeks an instruction on a public 

authority defense must produce evidence that (1) a government official authorized 

him to take what would otherwise be an illegal action; (2) that this official had the 

actual authority to permit the action; and (3) that the defendant reasonably relied 

on the official’s authorization. There is no dispute here that the controlling agents 

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with whom Defendant worked had the authority to approve his participation in the 

undercover drug conspiracy that was charged in the present indictment. There are 

few disputes, and none of them material, between the agents and Defendant as to 

their communications. Yet, taking the evidence in the light most favorable to 

Defendant, which means taking as true his testimony, we agree with the district 

court that Defendant failed to provide evidence that the agents had ever authorized 

him to participate in the sixteen-month conspiracy that led to his indictment. 

Indeed, the vagueness and generality of Defendant’s testimony, by itself, reinforces 

a conclusion that he simply lacks any evidence to support an argument that 

supervising agents had authorized his activities, or that he could have reasonably 

understood them to have done so. 

Recapping our earlier summary of the evidence, for about a six-month 

period of time, between August 2008 and March 2009, Defendant acted as an 

informant under the supervision of DEA agents in Central and South America who 

were trying to uncover illegal drug importation activity. Formalizing his 

relationship with the agents, Defendant signed written agreements which provided 

that he was immune from prosecution only for activities specifically authorized by 

his controlling agents and that he agreed to take no independent action on behalf of 

American law enforcement interests without such authorization.

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As to this drug investigation, neither Defendant nor the two testifying 

agents, Ball and Romain, offered much detail as to exactly what assistance he 

provided, nor did they give much information about the number or nature of 

interactions between them. What we do know from the evidence presented is that 

in January 2009, Agent Romain had essentially told Defendant that their working 

relationship was over. Defendant himself admitted that Agent Romain had told 

him to “fruck off” and leave Colombia as soon as possible because “you guys 

didn’t want to work with me” anymore.

Defendant did not leave Colombia. And, notwithstanding this seemingly 

unambiguous message from Agent Romain that Defendant’s services as an 

informant were no longer wanted or needed, Defendant nonetheless claims that he 

believed he was working on behalf of the DEA agents over the next sixteen

months, albeit without their knowledge, and that he believed his activities to be 

authorized by the agency. Yet, at no time during this sixteen-month period did 

Defendant make any effort to let these agents know what he was accomplishing as 

their informant. Which is too bad, because Defendant had a lot to tell. Indeed, 

taking Defendant at his word that, at least in his own mind, he was continuing to 

function as an informant while in the thick of drug activity that would have 

obviously intrigued the agents, his silence is inexplicable. By at least the spring of 

2009, Defendant was having conversations with his soon-to-be co-conspirators 

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about involving himself in their drug dealing. And in June 2009, Defendant met 

with the purported commander of an illegal paramilitary group and discussed the 

latter’s willingness to provide Defendant large quantities of drugs in return for 

Defendant’s sale of grenade launchers, surface-to-air missiles, and other weapons. 

Surely, Defendant realized that the agents would be keenly interested in this 

development so that they could deploy standard investigative techniques, such as 

the interception of telephone calls and visual monitoring, to build their case. Yet 

again, Defendant said nothing. Further, over the entirety of the charged 

conspiracy, Defendant was involved in other drug-related endeavors with McFieldBent and Archibold—two individuals in whose activities he knew the agents to be 

interested—with one of their drug shipments having been seized by Colombian

authorities. But again, radio silence from Defendant. Finally, in May 2010, 

Defendant was kidnapped by a drug cartel and held for three days before escaping: 

a dramatic event about which his handlers would surely want to be informed. Yet 

once again, Defendant kept this news to himself. In short, Defendant participated 

in numerous acts in furtherance of the criminal conspiracy, including telephone 

calls, meetings, money transfers, and drug deals. Yet, he told his former 

supervising agents nothing about any of these events. 

In fact, Defendant agrees that none of the criminal acts he committed during 

the sixteen-month term of the conspiracy was explicitly authorized by the agents. 

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How could they have been, given Defendant’s failure to ever inform the agents of 

what he was doing? He also acknowledges, as he must, that his written agreements 

with the agencies prohibited him from taking any actions not authorized by his 

handlers. His only explanation for his violation of the agreements’ requirement 

that he only undertake illegal activity that was approved by the agents was to 

recount Agent Romain’s alleged statement, in an undescribed context, that the 

written documents were “merely formalities.” In addition, Defendant testified that 

he did not think he needed to inform the agents what he was doing because they 

had earlier told him that they had the technological capabilities to listen in to all his 

telephone calls and to discern, through GPS, where he was at all times.11 So, 

according to Defendant, he inferred that the agents knew everything he was doing 

and, by their silence, he assumed they necessarily had approved his actions. 

Finally, Defendant claims that because he had never been formally deactivated by 

the agents, he could still consider himself an informant. He makes this claim 

notwithstanding having been told that the agents no longer wanted to work with 

him, notwithstanding the absence of any request by agents for his assistance during 

the period of the conspiracy, and notwithstanding his awareness that the written 

 

11 Agent Romain denied informing Defendant that the agreements were “mere formalities” or 

that the DEA at all times was able to listen in to his telephone calls or know his geographical 

positioning. But we take the facts in the light most favorable to Defendant and assume his 

version of events. Hedges, 912 F.2d at 1406.

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agreements between him and the agency had expired during the beginning of the 

sixteen-month period described in the indictment. 

Defendant’s argument can be boiled down to the following: up until the 

time an informant is formally deactivated, any criminal conduct he engages in is 

deemed to be authorized by the law enforcement agency, even if agents have no 

knowledge of the informant’s actions, so long as the informant (1) believes that his 

status as an informant relieves him of the obligation to obtain approval for his 

chosen actions or (2) assumes that the agency has probably learned elsewhere 

about his criminal conduct, and infers authorization from the agency’s subsequent 

silence. 

Of course, what is lacking in Defendant’s interpretation of the term 

“authorization” is anything remotely approaching the definition that is actually 

applied to that word. Black’s Law Dictionary defines the word “authorize” as 

meaning, “To formally approve; to sanction <the city authorized the construction 

project>.” BLACK’S LAW DICTIONARY (10th ed. 2015). The phrase “authorization 

of an action” connotes first, an awareness of the intended action by the person 

authorizing it and second, a communication to the person undertaking the action. 

An assumption that one is not required to obtain approval or that the approving 

official may well know of the intended action is not the same thing as having 

gotten authorization to take the action. And it is the actual affirmative 

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communication by a law enforcement agent that transforms an informant’s 

assumption of authorization into the approval that is required for the public 

authority defense to apply. 

We are aware of no caselaw that supports an interpretation that so turns on 

its head the word “authorize.” The sparse authority in analogous cases that we 

have found surely does not support Defendant’s peculiar interpretation. See United 

States v. Mergen, 764 F.3d 199, 205 (2d Cir. 2014) (For the public authority 

defense to apply, the defendant must “in fact” have been authorized by the 

Government to engage in what would otherwise be illegal activity. Thus, the fact 

that defendant was acting as an informant on other matters for the FBI and had 

even brought to its attention a planned arson did not confer on him the 

authorization of the Bureau to participate in that arson); Giffen, 473 F.3d at 41

(where official encouraged defendant to continue with his informant activities, the 

former had not authorized the defendant to commit illegal conduct not mentioned 

in the previous disclosures); Abcasis, 45 F.3d at 43–44 (public authority defense 

will not “support a claim of an open-ended license to commit crimes in the 

expectation of receiving subsequent authorization”); cf. United States v. Goodwin, 

496 F.3d 636, 644 (7th Cir. 2007) (reiterating district court’s conclusion that 

defendant was not entitled to assert a public authority defense because he “was 

attempting to play both sides of the street” when “engaged in freelance drug 

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36

dealing distinct from the controlled deals that he made at the government’s 

instruction as a then-confidential informant”). 

In short, Defendant’s proffered evidence is little more than a recitation of his 

purported, and rather convenient, assumptions, not proof of authorization by the

supervising agents. In reaching this conclusion, however, we caution that 

adherence to formalistic requirements is not a prerequisite to a finding of approval 

by the appropriate official. For example, had the DEA agents here verbally 

approved of Defendant’s participation in the criminal conspiracy, the fact that the 

confidential informant’s agreement had already expired or that a new written 

document had not been issued would not necessarily preclude a finding that 

authorization had been given. Likewise, we are not holding that, in every case, 

authorization must be so specific that an informant will be required to seek out and 

receive instruction for each discrete act that he takes.12 Further, a course of 

conduct between the agents and the informant and the latter’s reasonable reliance 

on past communications may, in appropriate circumstances, give rise to an 

inference of authorization. 

 

12 A controlling agent will typically direct an informant to report back immediately if he 

becomes compelled, in an undercover situation, to deviate from the script and take actions not 

envisioned during preparatory conversations with the agent. We will assume that a short period 

of delay in reporting back to the agent, if reasonably necessitated by the exigencies of the 

situation, would not compromise an informant’s ability to later claim a public authority defense. 

Here, however, Defendant has offered no explanation why, if he was truly functioning as an 

informant, he was unable to report this fact to the supervising agents during the sixteen-month

period in which this conspiracy operated. 

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In sum, for us to infer authorization of a particular action, the 

communications and course of dealing between an informant and his supervising 

agents must be such that the informant would reasonably understand he is 

authorized to engage in the particular conduct at issue. And his conduct “must 

remain within the general scope of the solicitation or assurance of authorization.” 

Abcasis, 45 F.3d at 43–44. This means that “[w]hether a defendant was given 

governmental authorization to do otherwise illegal acts through some dialogue 

with government officials necessarily depends, at least in part, on precisely what 

was said in the exchange.” Giffen, 473 F.3d at 39; cf. United States v. Burt, 410 

F.3d 1100, 1104 (9th Cir. 2005) (finding that defendant was entitled to a public 

authority instruction where she testified that federal agents gave her no instructions 

as to how to conduct herself and told her that as long as she was gathering 

information for them, her actions would not be illegal).

Here, though, a conclusion that Defendant lacked authorization to engage in 

this sixteen-month criminal conspiracy is not a close call. And absent such 

authorization, Defendant had no entitlement to violate the law with impunity nor 

any right to a public authority instruction that would vindicate that claimed 

expectation. Accordingly, we conclude that the district court did not err in refusing 

to instruct the jury to consider whether Defendant had acted under public authority 

in committing his offense. 

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2. Defendant Was Not Harmed by the Absence of a Public 

Authority Instruction

Had Defendant offered sufficient evidence to warrant a public authority 

instruction, the district court, of course, should have given the instruction. But in 

any event, we can find no harm to Defendant as a result of the court’s failure to 

offer this additional instruction because the jury’s obvious rejection of Defendant’s 

claimed “innocent intent” would have similarly doomed his chance of success on a 

public authority defense. 

Specifically, the court instructed the jury that the Government had the 

burden of proving Defendant’s guilt beyond a reasonable doubt. It also told the 

jury that, in order to convict Defendant, it would have to find that he “willfully 

joined in the charged conspiracy with the intent to do something the law forbids.” 

Further, it defined the word “willful” for the jury: “The word ‘willfully’ means 

that the act was committed voluntarily and purposely, with the intent to do 

something the law forbids, that is, with the bad purpose to disobey or disregard the 

law.” Finally, the court outlined to the jury Defendant’s theory of defense, which 

was that Defendant honestly believed he was performing the charged conduct to 

help law enforcement. The court emphasized to the jury that it was not 

Defendant’s obligation to prove his honest belief because he had no burden to 

prove anything. It ended this instruction by advising the jury that if it concluded 

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Defendant honestly believed that he was working to help law enforcement, the jury 

should find him not guilty.13 

In short, according to the court’s “innocent intent” instruction, Defendant 

had no burden of proving his honest belief that he was not acting contrary to the 

law, but instead the Government had the burden of proving beyond a reasonable 

doubt his willfulness. Yet, by finding Defendant guilty, the jury clearly 

communicated its disbelief of Defendant’s testimony that he was merely 

functioning as a DEA informant throughout the sixteen months that he participated 

in the charged drug importation conspiracy. We know this to be so because the 

court instructed the jury that it should acquit Defendant if it concluded that he

engaged in his conspiratorial conduct out of an honest belief that he was helping 

the Government in its investigation. As the only evidence supporting a claim of 

honest belief was Defendant’s testimony, the jury clearly did not buy his story. 

See United States v. Joseph, 709 F.3d 1082, 1103 (11th Cir. 2013) (a defendant’s 

testimony denying the required “mens rea can . . . be fatal to his attempt to 

exculpate himself” because, if disbelieved by the jury, that testimony can itself “be 

used as substantive evidence of guilt” (internal citations omitted)). 

 13 “The crime charged requires a finding that the Defendant willfully joined in the charged 

conspiracy with the intent to do something the law forbids. It is the Defendant’s theory of 

defense that he honestly believed that he was performing the conduct with which he is charged to 

help law enforcement. The burden of proof is not on the Defendant to prove his honest belief 

since he has no burden to prove anything. If you find that the Defendant had the honestly held 

belief that he was performing the conduct with which he is charged to help law enforcement, 

then you should return a verdict of not guilty.” (emphasis added). 

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40

And if the jury rejected Defendant’s claim that he believed himself to be 

merely acting on behalf of the DEA during the sixteen months in which he was 

giving every indication of being a bona fide drug dealer, then the jury also would 

have necessarily rejected a public authority defense because the latter is available 

only to a defendant who reasonably relies on a federal agent’s authorization to 

commit a crime. If, as the jury concluded, Defendant did not honestly believe that 

he was acting to assist governmental investigators, then necessarily he could not 

have been relying on any perceived authorization, which is required for the public 

authority defense.

Moreover, while an “innocent intent” theory of defense does not require that 

the defendant demonstrate that his “honest belief” was reasonable, a public 

authority defense does. See supra at 17–19, 23–27. Having received a helpful 

instruction that allowed an acquittal based on an honest, albeit possibly 

unreasonable, belief, it is hard to see how Defendant would have been helped by a 

competing public authority defense that informed the jury that this very same 

belief had to be reasonable. 

3. District Court Did Not Err in Modifying Defendant’s Requested 

Innocent Intent Instruction

Finally, Defendant makes one last argument concerning the instructions. He 

complains that immediately prior to instructing the jury on the significance of 

Defendant’s “honest belief,” the court clarified for the jury that Defendant had not 

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41

actually been authorized by law enforcement officers to perform the acts with 

which he was charged. Other than expressing unhappiness with this clarification, 

Defendant offers little in the way of analysis as to how the court erred by making 

the statement. He simply repeats his argument that the court should have given a 

public authority defense and states that the above language directed a verdict for 

the Government. We find neither argument to be persuasive. 

This Court reviews the legal correctness of jury instructions de novo but 

“defer[s] on questions of phrasing absent an abuse of discretion.” United States v. 

Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). District courts have broad 

discretion in formulating jury instructions as long as the whole charge accurately 

reflects the law and facts. Id.; see also Humphrey v. Staszak, 148 F.3d 719, 723 

(7th Cir. 1998) (an appellate court should reverse only if, “considering the 

instructions, the evidence and the arguments, it appears that the jury was misled 

and its understanding of the issues was seriously affected to the prejudice of the 

complaining party”); United States v. White, 552 F.3d 240, 246 (2d Cir. 2009) (to 

obtain a reversal on a jury instruction, “a defendant must demonstrate both error 

and ensuing prejudice” and reversal will “occur only where the charge, viewed as a 

whole, either failed to inform the jury adequately of the law or misled the jury 

about the correct legal rule” (internal citations omitted)).

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Here, after considering Defendant’s testimony, the court correctly concluded 

that Defendant had failed to present any evidence that federal law enforcement 

officers had authorized him to engage in the drug and weapons trafficking 

conspiracy with which he had been charged. Moreover, the court had become 

concerned at the possible “blurring of the issues” between the intent-negation 

defense theory and the affirmative public authority defense, with Defendant 

attempting to “backdoor the public authority defense” in his efforts to establish his 

lack of intent. Thus, the court concluded that to avoid confusion by the jury, it was 

important to make clear what was at issue (the factual question whether Defendant 

honestly believed he was acting in conformity with his duties as an informant) and 

what was not at issue (the legal question whether, on undisputed facts, federal 

agents could be said to have authorized Defendant to engage in the acts which he 

undertook). 

Clarity is a virtue in jury instructions. “The whole purpose of the charge is 

to enlighten the minds of the jurors with reference to the law arising out of the 

issues and the evidence so that they may intelligently arrive at their verdict.” 

United States v. Hill, 417 F.2d 279, 281–82 (5th Cir. 1969). Here, the judge’s 

preface to the “innocent intent” instruction and that instruction, itself, made clear 

to the jury the factual matter that they were expected to decide and the legal 

question that was not before them. The information conveyed to the jury in the 

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instruction was accurate. Moreover, while it is true that a court directs a verdict 

when it decides for the jury an “ultimate question of fact as to an essential 

element” of the charged crime, United States v. Howard, 855 F.2d 832, 835 (11th 

Cir. 1988), the court here did not intrude itself into any resolution of a fact or an 

element of the offense. To the contrary, the question whether federal agents had 

authorized Defendant’s actions went, not to an element, but to whether Defendant 

would be allowed to present an affirmative defense. It would have been improper 

and confusing for the jury to have accidentally stumbled into public-authoritydefense territory in its deliberations without a full instruction as to what that 

defense entailed, and when Defendant had not met the standards for that defense. 

See Anton, 546 F.3d at 1357 (a court properly bars a defense when a defendant has 

presented insufficient relevant evidence to support that defense). Finally, for the 

reasons explained above, Defendant suffered no prejudice from the court’s 

prefatory remark.14 

 

14 We likewise find no merit in Defendant’s contention that the district court abused its 

discretion by excluding proposed expert testimony that the supervising DEA agents did not 

follow DEA’s “best practices” in their handling of Defendant. The issue before the jury 

concerned whether Defendant honestly believed that he was acting on behalf of the DEA while 

he was participating in the charged conspiracy. We agree with the Government’s argument that 

testimony concerning the agents’ compliance with agency best practices was not relevant to any 

issue at trial, as required by Federal Rule of Evidence 401, and would have potentially misled the 

jury, wasted time, and caused undue delay, in violation of Federal Rule of Evidence 403. See 

United States v. Wilk, 572 F.3d 1229, 1235 (11th Cir. 2009) (where defendant relied on a theory 

of self-defense in his prosecution for shooting of police officers, district court properly excluded 

expert testimony that officers’ entry into defendant’s home violated police procedures because it 

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II. Sentencing Issues

Under 21 U.S.C. § 960(b)(1)(B)(ii), Defendant’s minimum term of 

imprisonment was ten years and the maximum was life. His offense level under 

the Sentencing Guidelines was 38, with a criminal history category of I, which 

yielded an advisory sentencing range of 292 to 365 months’ imprisonment. The 

district court sentenced Defendant to 360 months’ imprisonment to be followed by 

five years’ supervised release. 

Acknowledging that the Guidelines were correctly calculated and that the 

court sentenced him within the advisory range set therein, Defendant argues that 

his sentence was substantively unreasonable. He argues that the district court 

should have either varied and imposed a sentence below the advisory range or it 

should have imposed a sentence at the low-end of the Guidelines range. 

This Court reviews the reasonableness of a sentence under a deferential 

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We 

consider whether the sentence was substantively reasonable in light of the totality 

of the circumstances. Id. at 51. The party who challenges the sentence bears the 

burden of showing that it is unreasonable in light of the record and the § 3553(a) 

 

was defendant’s perception, not the officers’ compliance with procedure, that was relevant in 

determining self-defense).

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factors.15 United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The 

weight accorded to any given § 3553(a) factor is a matter within the district court’s 

discretion, and this Court will not substitute its judgment in weighing the relevant 

factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). Although 

this Court does not automatically presume a sentence falling within the Guidelines

range to be reasonable, it ordinarily expects such a sentence to be reasonable. 

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). 

Defendant has failed to show that his sentence is substantively unreasonable 

in light of the record and the § 3553(a) factors. See Tome, 611 F.3d at 1378. As to 

Defendant’s argument that his sentence is unreasonable because it greatly 

exceeded that of his co-defendants, we note that both defendants confessed their 

guilt and accepted responsibility. Defendant McField-Bent also cooperated with 

the Government and testified at Defendant’s trial. In contrast, as the district court 

noted: 

[Defendant] put on a very elaborate defense that was an effort to 

obfuscate the truth from the jury. The jury could have easily been 

misled. That defense included his own testimony to the jury that 

tried to confuse his past association with DEA and his – what was his 

present involvement, criminal activity, without the DEA’s 

knowledge. 

 

15 Those factors include: (1) the nature and circumstances of the offense, (2) the history and 

characteristics of the defendant, (3) the need for the sentence imposed to reflect the seriousness 

of the offense, promote respect for the law, and provide just punishment, and (4) the need to 

protect the public from the defendant. 18 U.S.C. § 3553(a)(1)–(2).

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In short, we do not find Defendant’s sentence to be unreasonable based on 

its comparative severity in relation to the sentences of his co-defendants or based 

on any other arguments Defendant has made. See United States v. Langston, 590 

F.3d 1226, 1237 (11th Cir. 2009) (holding that no unwarranted disparity resulted 

where the defendant, who proceeded to trial, received longer sentence than a codefendant who pled guilty and cooperated with the government). 

CONCLUSION

For all the above reasons, we affirm Defendant’s conviction and sentence.

AFFIRMED.

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