Bragg and selling this material to undercover government agents posing as arms dealers. Upon
their arrest, defendants asserted what the court called an “apparent authority” or “CIA defense.”
Id. at 1510. In short, they claimed that they acted under the reasonable belief that they had CIA-
authorization to covertly steal the weapons, which were to be sent to the “contras,” the U.S.-backed
anti-Sandinista forces in Nicaragua. /d. at 1512-13. The Eleventh Circuit upheld the trial court's
refusal to allow the apparent authority defense, holding that "[bJecause the CIA had no real
authority to violate the statutes of the United States, appellants’ theory that they were acting on
apparent authority of an alleged CIA agent is not a viable defense.” /d. at 1516. Defendant
Patterson has not identified any government agent as having authorized him to violate federal gun
or drug laws. Indeed, Patterson asserts the Cl did not mislead him at all.

The second case cited by Defendant, United States v. Barker, 546 F.2d 940 (D.C. Cir.
1976), involved two of the Watergate “footsoldiers” who, at the direction of Nixon administration
official and long-time CIA agent E. Howard Hunt, broke into the office of a psychiatrist in an attempt
to obtain information about Daniel Ellsberg in the wake of his release of the Pentagon Papers.
Indicted for conspiring to violate the Fourth Amendment rights of the psychiatrist, the defendants
attempted to raise a defense based upon their reasonable good faith reliance on Hunt’s apparent
authority. /d. at 946. According to the defense, this reliance constituted a mistake of fact “coupled
with” a mistake of law which negated the mens rea required under the conspiracy statute. /d.
While conceding that mistakes of law do not generally constitute a defense to commission ofa
crime, the D.C. Circuit held that the trial court erred in refusing to allow the defense. The court
noted that there was “abundant evidence” that the defendants "honestly and reasonably believed
they were engaged in a top-secret national security operation lawfully authorized by a government
intelligence agency.” /d. at 949. The court compared this reliance to a police officer's reliance on
an invalid judicial search warrant. /d. at 947. In the words of one member of the panel, “I think it
plain that a citizen should have a legal defense to a criminal charge arising out of an unlawful arrest

5


is no defense,” the court held that the defendant's good motives did nothing to negate the fact that
he had knowingly and voluntarily received child pornography, in violation of federal statute Id, at
407-08. The court added that though the defendant presented his defense as one of “mistake of
fact,” in reality it could more accurately be characterized as a public authority defense, which
required defendant to show that a government official authorized the covert activity. /d. at 408.
Similarly, Patterson's claimed motives do not show that his commission of the charged
crimes was not knowing or voluntary. Patterson's subjective belief that his actions were somehow
justified by his community activism may be relevant to his credibility; that subjective belief does not
does not constitute a valid defense in the absence of a showing that this acts were authorized by
some public official. No such showing has been made.
CONCLUSION
In light of Defendant's failure to present evidence supporting his public authority defense,

the government's motion to bar that defense is granted.

ENTER:

Dated: May 20, 2005

CCA R.
United States Distri dg


by estoppel, the defendant must show that: (1) he was misled by a state official; (2) the official
actively misled him; (3) the reliance on the official's misleading statement was “reasonable in light
of the identity of the agent, the point of law represented, and the substance of the
misrepresentation”; and (4) the reliance was in good faith. Rector, 111 F.3d at 506 (citing Howell,
37 F.3d at 1204).

Defendant concedes that his actions were not motivated by, or undertaken in reliance upon,
the statements or representations of any public official. Instead, he relies on his subjective belief
that he has a right and duty to “expose injustice in his community” on behalf of the “community and
people of Illinois." Such a reliance is not encompassed by the public authority defense as set forth
in the cases addressing this theory, nor has Patterson cited any case law to support it. Any
purported reliance on public authority, actual or apparent, must be objectively reasonable.” Rector,
1411 F.3d at 506. Patterson’s insistence that the community authorized him to commit drug and
firearm crimes is far from reasonable.

The cases cited by Defendant in support of the apparent public authority defense do not
support his position here. In United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989), two

members of the Army Special Forces were charged with conspiring to steal explosives from Fort

2

° It should be noted that the majority of Circuits have denied the existence of an
“apparent public authority” defense. See, e.g., United States v. Fulcher, 250 F.3d 244, 254 (4th
Cir. 2001) (‘the defense of public authority requires reasonable reliance upon the actual authority
of a government official to engage him in a covert activity’); United States v. Pitt, 193 F.3d 751, (3d
Cir. 1999) (defense limited to “those situations where the government agent in fact had the
authority to empower the defendant to perform the act in question”); 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.”); United States v. Baptista-Rodriguez, 17 F.3d
1354, 1368 n. 18 (11th Cir, 1994) (“If the agent had no such power, then the defense 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.”). Nevertheless, the Seventh Circuit appears to have left open the possibility of a valid
apparent public authority defense. See Neville, 82 F.3d at 761.

4


or search which he has aided in the reasonable belief that the individual who solicited his
assistance was a duly authorized office of the law.” /d. at 954.

Although Barkerrecognized an apparent authority defense, Patterson’s reliance on the case
is misplaced. The decision was decided by a 2-1 vote; although the majority agreed that the
defendant might have a limited mistake of law defense, the two judges disagreed over the
parameters of that defense. See United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984)
(discussing the precedential value of Barker). Judge Merhige did not recognize an apparent
authority defense, but rather relied on the traditional exception to the mistake of law rule for
reasonable reliance upon the statement of an official charged with interpretation, administration,
or enforcement in that legal area. Barker, 546 F.2d at 955 (Merhige, J., concurring). Judge Wilkey
did recognize an apparent authority defense, but Patterson does not meet its terms. Under Judge
Wilkey’s opinion, an apparent authority defense is only available where a defendant could show
both (1) facts justifying the reliance upon the official’s apparent authority and (2) a legal theory
upon which to base a reasonable belief that the official possessed such authority. /d. at 949.
Unlike the Barker defendants whose belief that they were acting pursuant to the lawful authority
of the White House was found to be reasonable, Patterson has not pointed to any government
official upon whose authority he believed he was acting, nor any factual or legal theory suggesting
that he held a reasonable belief that he had such authority to engage in drug trafficking or
possession of a weapon. To the contrary, Patterson testified at the hearing that he knew
throughout the time of the alleged offense conduct that he was being “set up.”

Having failed to establish a public authority defense, Patterson next attempts to present a
defense based upon a private citizen's right of arrest. Under Illinois law, “[a]ny person may arrest
another when he or she has reasonable grounds to believe that an offense other than an ordinance
violation is being committed.” 725 ILL. Comp. STAT. 5/107-3. Under the statute, however, a private

citizen may not commit crimes in the course of making a citizen's arrest. See People v. Kirvelaitis,

6


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )
)
ve ) No. 04 CR 0705-1
)
AARON PATTERSON ) Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Defendant Aaron Patterson has been charged with conspiracy to distribute narcotics and
with a weapons offense. Patterson, a self-described “freedom fighter, revolutionary, and
professional troublemaker,” argues that any alleged wrongdoing is excused by the “public authority”
defense. Over the government's objection, this court convened a hearing at which Patterson was
invited to present evidence he would offer at trial in support of that defense. For the reasons set
forth here, the court concludes the evidence proffered by Defendant Patterson is insufficient to
establish “public authority” under relevant legal standards, and sustains the government's objection
to Patterson's reliance on such a defense at trial.

FACTUAL BACKGROUND

Sixteen years ago, Defendant Patterson was the victim of a tragic miscarriage of justice
In 1989, he was convicted wrongly of murder and sentenced to death. Patterson spent thirteen
years on lilinois’s death row, before being pardoned by then-Governor George Ryan in 2003 on
the basis of innocence. Patterson believes the key evidence in the case against him was a false
confession which was the product of torture at the hands of Chicago Police Detective John Burge.
Following his release, Patterson filed a lawsuit challenging his wrongful conviction and the alleged
police misconduct. In addition, Patterson has become an outspoken activist on the matter of police
corruption and other public wrongdoing. This activism has been targeted largely at City and state
officials who, Patterson believes, have refused to prosecute Burge and other Chicago police

officers and state prosecutors responsible for his conviction. In the course of his crusade,


315 Ill. App.3d 667, 734 N.E.2d 524, 529 (2nd Dist. 2000) (police officer making arrest outside of
jurisdiction as a private citizen did not have right to exceed speed limit in the course of making
arrest). The statute does not authorize a private citizen to run private sting operations, during the
course of which he commits a crime. Notably, Patterson has not identified any person as the
subject of an arrest, nor has he outlined the specific wrongdoing he believed the subject was
committing. Instead, he asserts generally that he was trying to expose corruption within the
Chicago Police Department; however worthy this goal may be, it is not encompassed by the Illinois
citizen’s arrest statute. Moreover, although Patterson was assertedly wronged by Officer Burge
and disturbed by the government's failure to prosecute Burge, he has not explained how the
Chicago police or any federal officers acted improperly in the course of investigating Patterson
himself in the spring and summer of 2004.

Finally, Patterson suggests that he reasonably believed that he was investigating police
corruption, and that this belief negates the scienter requirement of the charged offenses. As the
government notes, Patterson does not deny in his motion that he knowingly and intentionally
committed the charged crimes. Instead, he claims that any crimes were committed while he
believed that “he was working on behalf of the citizens of Illinois, for the local CPD as well as the
Federal Government which were unable to arrest and prosecute those whom he believed had
perpetrated crimes against the community.” (Defendant's Response to Government's Motion for
Clarification of the Defendant's Public Authority Defense, at 2.) The defense suggests that this
belief negates the specific state of mind for the charged crime of conspiracy.

Such a "good motive” defense has been rejected by other courts. In United States v. Fox,
248 F.3d 394, 407-07 (5th Cir. 2001), judgment vacated on other grounds by Fox v. United States,
535 U.S. 1014 (2002), for example, the Fifth Circuit rejected a defendant's claim that he had
received child pornography in order to “deliver up these defilers of children’ to the proper
authorities for well-deserved punishment.” /d. at 407. Noting that “standing alone, good motive

7


Patterson has, among other things, forced his way into a meeting with Governor George Ryan,
disrupted a press conference held by Chicago Mayor Richard Daley and United States Attorney
Patrick Fitzgerald, and launched an unsuccessful campaign for state representative. Patterson
testified that he initiated an investigation of his opponent, State Representative Patricia Bailey,
which ultimately led to charges that Ms. Bailey lives outside the district she represents.

As a result of his activism, Defendant contends that the Chicago Police Department
resolved to set him up and return him to prison under what he calls “Operation Revolving Door.”
Patterson claims that he learned of the Chicago Police Department's intentions from another
community activist during March 2004. Through his contacts, Patterson learned that the
government had arranged for a member of the Latin Kings street gang to work as a confidential
informant and attempt to sell him illegal drugs. Members of the Latin Kings contacted Patterson
and warned him to stay away from the informant, whom Patterson identified as Mario “the Fox”
Maldonado.

Despite these warnings, Patterson felt that, given his history with the criminal justice
system, it was incumbent on him to confront the confidential informant and expose the operation.
After learning of his involvement with the police, Patterson met with the informant and asked the
informant to help Patterson conduct a “reverse sting” to expose the Chicago Police Department's
“dirty dealings” and attempts to set him up. Patterson assists that he and the Cl agreed to meet,
under government surveillance, so that Patterson could conduct “counter-surveillance.” The fact
that, at one point during their own surveillance of him, law enforcement officers observed Patterson
tipping his hat confirms, in Patterson’s view, that he recognized the officers and was conducting
his own investigation. Patterson intended to obtain evidence, via camera, video and audio
recordings, regarding the government's attempt to set him up, and bring the evidence to the United

States Attorney because, at the time, he believed that only the Chicago Police Department and


State’s Attorney were targeting him.’ In light of the current charges in federal court, Patterson now
believes that the U.S. Attorney is involved in what he claims is a conspiracy.

Patterson acknowledges that others might characterize some of his activities, and
particularly his determination to meet with the confidential informant, as “bizarre,” but he insists that
his actions were motivated by a desire to ferret out corruption within the Chicago Police Department
and State’s Attorneys office. In light of these non-criminal motivations, Patterson, through counsel,
raises the public authority defense. Specifically, he contends that, in conducting his counter-
surveillance, he was acting under a belief that he had the authority to expose injustice and
corruption within the law enforcement community on behalf of the community at large. In
Patterson's words, “any citizen, if injustice is being done, should in some form or fashion take
action.”

DISCUSSION

The public authority defense applies when a defendant is reasonably mistaken in believing
that criminal activity was authorized by the government. The defense, which operates as an
exception to the general rule that mistakes of law do not excuse the commission of a crime, is also
known as entrapment by estoppel. The defense is “rarely available” under either moniker. United
States v. Rector, 111 F.3d 503, 506 (7th Gir. 1997) (quoting United States v. Howell, 37 F.3d 1197,
4204 (7th Cir. 1994)), overruled on other grounds by United States v. Wilson, 169 F.3d 418 (7th
Cir. 1999). “‘In essence, it applies when, acting with actual or apparent authority, a government
Official affirmatively assures the defendant that certain conduct is legal and the defendant
reasonably believes that official.” United States v. Neville, 82 F.3d 750, 761 (7th Cir. 1996)

(quoting Howell, 37 F.3d at 1203). In order to present a defense of public authority or entrapment

' Prior to the events leading to his arrest, Patterson claims to have attempted to bring

this information to the attention of the U.S. Attorney. He eventually abandoned these attempts due
to the office’s lack of responsiveness.