In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2674

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

AMEN E. JUMAH,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 237—John W. Darrah, Judge.

____________

ARGUED JANUARY 19, 2007—DECIDED JULY 16, 2007

____________

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Amen E. Jumah was convicted by

a jury of knowing possession of a listed chemical, knowing,

or having reasonable cause to believe, that the chemical

would be used to manufacture a controlled substance in

violation of 21 U.S.C. § 841(c)(2). Mr. Jumah’s primary

defense was that he was acting under public authority

when he committed the acts giving rise to the charge. At

trial, Mr. Jumah requested that the jury be instructed that

the Government had the burden of disproving his public

authority defense beyond a reasonable doubt. The district

court agreed to instruct the jury on the elements of the
2 No. 06-2674

public authority defense, but denied Mr. Jumah’s request

to further instruct the jury that the Government had the

burden of disproving the defense beyond a reasonable

doubt. Following the jury’s guilty verdict, Mr. Jumah

moved for a new trial on the ground that the jury had

been instructed improperly with respect to the public

authority defense. Acting without the benefit of the

Supreme Court’s most recent guidance, see Dixon v. United

States, 126 S. Ct. 2437 (2006), the district court granted the

motion; it determined that its denial of the requested

instruction had been erroneous and that Mr. Jumah had

suffered prejudice from that error. The Government has

appealed the district court’s decision. For the reasons set

forth in this opinion, we reverse the judgment of the

district court.

I

BACKGROUND

Mr. Jumah was a confidential source for the federal Drug

Enforcement Administration (“DEA”). In that role, Mr.

Jumah had assisted the DEA in a number of investigations into the trafficking of pseudoephedrine, a chemical

used to produce methamphetamine. He had been compensated for his services. Eventually, the DEA found that Mr.

Jumah no longer was providing useful information and,

in late 2002, terminated his status as a confidential source.

Mr. Jumah received his last payment from the DEA in

March 2003. However, after that date, he continued to

approach the DEA regarding payment for past information.

In February 2004, Mr. Jumah approached Ali Qasem

about a potential pseudoephedrine deal. Mr. Jumah knew

Qasem had been involved in pseudoephedrine trafficking
No. 06-2674 3

in California. However, he apparently was unaware that,

in 2002, Qasem had pleaded guilty in a federal court in

California for his participation in a conspiracy to distribute

pseudoephedrine. Since his plea, Qasem had served as a

confidential source for the DEA. When Mr. Jumah approached Qasem about a possible drug deal, unaware that

Qasem was a confidential source, Qasem passed the

information along to his handler, Agent Efren Lapuz, who,

in turn, passed the information along to Agent James Jones

in Chicago. Agent Jones was one of the DEA agents with

whom Mr. Jumah had worked prior to his termination as

a confidential source; indeed, Mr. Jumah had continued

to contact him about payment for past information. Notably, Agent Jones had not asked Mr. Jumah to initiate any

pseudoephedrine deals with Qasem or with anyone else

during the period in question.

After confirming that the proposed deal was not between

two “friendlies,” i.e., two individuals working as informants, Agents Jones and Lapuz decided that Qasem should

pursue the deal with Mr. Jumah on behalf of a fictitious

methamphetamine producer. In early February, Qasem and

Mr. Jumah met in Chicago to arrange the deal. As Qasem

was traveling to Chicago for this meeting, Mr. Jumah had

contacted Agent Jones regarding payment for past information, but had not mentioned his dealings with Qasem.

When Qasem arrived in Chicago, he and Mr. Jumah had

several meetings, some of which were recorded by the

DEA. The meetings did not culminate in a deal, but

arrangements were made to complete the transaction

in early March.

On March 2, 2004, Mr. Jumah and Qasem arranged over

the phone to meet that afternoon. After this call, Mr. Jumah

contacted DEA Task Force Officer (“TFO”) John Kosmow-
4 No. 06-2674

ski, with whom he had worked before, and informed TFO

Kosmowski that he might be meeting an individual

interested in purchasing pseudoephedrine. He did not

inform TFO Kosmowski that a meeting was scheduled

for that afternoon. Later that afternoon, Mr. Jumah and

Qasem arranged, by telephone, a time and place for their

meeting. Following this call, Mr. Jumah left a message with

TFO Kosmowski that he would be meeting with Qasem.

Mr. Jumah did not go into any details of the planned

meeting.

When Mr. Jumah met with Qasem that afternoon, Mr.

Jumah provided Qasem 1,016 pills containing pseudoephedrine as a sample for Qasem’s fictitious methamphetamine producer. Later that afternoon, Qasem contacted

Mr. Jumah over the telephone to arrange a deal to purchase three hundred cases of pseudoephedrine pills. The

transaction was scheduled to take place that evening at

the Harrah’s casino in Joliet, Illinois. DEA agents monitored the activity by placing a recording device on Qasem

and by surveilling Mr. Jumah when he left Qasem at

the casino and took Qasem’s car to obtain the pseudoephedrine. When Mr. Jumah returned to the casino, he

told Qasem that the pseudoephedrine was in the trunk of

Qasem’s car, and that he would bring the car by the front

of the casino to show Qasem the pseudoephedrine. Mr.

Jumah then returned to Qasem’s car where he was arrested. The “pseudoephedrine” found in Qasem’s car

turned out to be rock salt.

After Mr. Jumah was arrested, he claimed that he was

acting on the authority of TFO Kosmowski and that he

had received the sample pseudoephedrine pills that he

had given Qasem from TFO Kosmowski. Mr. Jumah later

admitted that he had stolen the pills from the DEA several
No. 06-2674 5

months earlier. Mr. Jumah was charged with violation of

21 U.S.C. § 841(c)(2) for knowing possession of a listed

chemical, knowing, or having reasonable cause to believe,

that the chemical will be used to manufacture a controlled substance.

At trial, Mr. Jumah’s principal defense was that he had

been acting under public authority because he had been

acting for the DEA in arranging the deal with Qasem. The

Government objected to the submission of any instruction

on public authority to the jury, but the district court

overruled the objection because it believed that adequate

evidence had been introduced to put the defense in issue.

The Government then proposed the Seventh Circuit pattern

jury instruction for the public authority defense, along

with an additional instruction reciting that the Government did not bear the burden of disproving the defense.

Although Mr. Jumah offered no instructions of his own,

he objected to the pattern jury instruction; he maintained

that the jury should be instructed on the defense in the

same instruction that contained the elements of the offense.

He also requested that the jury be instructed that the

Government had the burden to disprove the defense

beyond a reasonable doubt. The district court, however,

rejected Mr. Jumah’s requested instructions and took the

view that the Government was not required to disprove

the defense beyond a reasonable doubt. R.135-6 at 444.

For reasons that are not clear from the record, the Government then withdrew its requested instruction that it

did not bear the burden of disproving the defense. Id.

at 457.

The jury was instructed on the elements of the offense

with which Mr. Jumah was charged, the Government’s

burden with respect to proof of guilt and the elements of
6 No. 06-2674

1 The Seventh Circuit pattern jury instruction for the public

authority defense, in whole, reads:

A defendant who acts in reliance on public authority

does not act knowingly [or with the intent to (state intent

requirement of statute, if any)], and should be found not

guilty.

A defendant acts under public authority if:

(1) that defendant is affirmatively told that his/her

conduct would be lawful;

(2) the defendant is told this by an official of the [United

States] government; [and]

(3) the defendant actually relies on what the official

tells him/her in taking the action[; and,

(4) the defendant’s reliance on what he/she was told by

the official is reasonable in light of the circumstances].

In considering whether a defendant actually relied on

representations by an official that his/her conduct would

(continued...)

the public authority defense. More precisely, the jury was

instructed that, to find Mr. Jumah guilty, the Government

was required to prove beyond a reasonable doubt that

Mr. Jumah had “knowingly or intentionally possessed or

distributed pseudoephedrine” and that he “possessed or

distributed pseudoephedrine knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine.” Id. at 520. Immediately

following this elements instruction, the court instructed

the jury on the public authority defense. Following the

Seventh Circuit pattern jury instruction nearly verbatim,

the court stated, in pertinent part, that “[a] defendant who

acts in reliance on public authority does not act

knowingly.”1 Id. at 521. The jury returned a guilty verdict.
No. 06-2674 7

1 (...continued)

[be] lawful, you should consider all of the circumstances of

their discussion, including the identity of the official, the

point of law discussed, the nature of what the defendant

told, and was told by, the official, and whether that reliance was reasonable.

Seventh Circuit Pattern Criminal Jury Instr. 6.07 (1999).

Following trial, Mr. Jumah filed a motion requesting a

new trial or entry of a judgment of acquittal. He argued

that the court had erred by failing to instruct the jury that

the Government was required to disprove the public

authority defense beyond a reasonable doubt. The

court concluded that its earlier ruling was in error and

that the Government was required to disprove the public

authority defense beyond a reasonable doubt. The court

further determined that the error was not harmless.

Consequently, it granted Mr. Jumah’s motion for a new

trial. 

II

DISCUSSION

A.

The allocation of the burden of proof on affirmative

defenses has been a vexing issue in the courts of appeals in

recent times. The process has created, understandably,

difficult problems for the district courts.

In United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996) (per

curiam), we held that, absent an act of Congress specifically allocating the burden of persuasion for an affirmative defense on the defendant, the burden rests on the
8 No. 06-2674

2 Although the facts of Dixon v. United States, 126 S. Ct. 2437

(2006), related to the affirmative defense of duress, it is clear that

the Court’s holding was not limited to this defense. The Court

cited our decision in Talbott v. United States, 78 F.3d 1183 (7th

Cir. 1996) (per curiam), as an exemplar of cases in conflict with

the decision of the Fifth Circuit. Dixon, 126 S. Ct. at 2440 n.1.

Talbott itself did not involve the affirmative defense of duress.

Rather, the defense raised in Talbott was self-defense. Talbott,

78 F.3d at 1185.

Government to disprove the defense beyond a reasonable doubt once the defendant meets its burden of production to put the defense in issue. Id. at 1186. Adhering to

our holding in Talbott, the district court concluded that,

because no federal statute allocated the burden of persuasion for the public authority defense to the defendant,

the Government was required to disprove Mr. Jumah’s

public authority defense beyond a reasonable doubt. The

court therefore concluded that Mr. Jumah was entitled

to an instruction to that effect and the earlier denial had

been in error.

After the district court had ordered a new trial and had

denied the Government’s motion to reconsider, the Supreme Court decided Dixon v. United States, 126 S. Ct. 2437

(2006). The Court granted certiorari in Dixon to resolve a

division of authority in the courts of appeals as to whether, absent an act of Congress on the issue, criminal defendants were required to prove by a preponderance of the

evidence the elements of an affirmative defense that did

not negate an element of the offense.2 Id. at 2440. The Court

held that there was no constitutional requirement that an

affirmative defense that did not controvert an essential

element of an offense be disproved beyond a reasonable
No. 06-2674 9

doubt. Id. at 2442. The Court further held that, absent

evidence of contrary congressional intent in the structure

or history of the statute, federal courts should presume

that Congress intended that they follow established

common law rules related to affirmative defenses when

applying new criminal statutes. Id. at 2445-46. Thus, Dixon

abrogates Talbott and establishes that, when a statute is

silent on the question of affirmative defenses and when the

affirmative defense does not negate an essential element

of the offense, we must presume that the common law

rule that places the burden of persuasion on the defendant

reflects the intent of Congress. 

B.

Our immediate task is to determine: (1) whether the

public authority defense negates an element of the

charged offense that the Government must prove beyond

a reasonable doubt and (2) whether Congress intended

to alter the common law rules governing the public authority defense in prosecutions for violations of 21 U.S.C.

§ 841(c)(2).

1.

We first turn to whether the public authority defense

negates an element of the offense with which Mr. Jumah

was charged. Commentators have identified several

categories of “defenses.” These categories include failure of

proof “defenses” and affirmative defenses based on

justification and excuse. 2 Wayne R. LaFave, Substantive

Criminal Law § 9.1(a) (2d ed. 2003) [hereinafter “LaFave”].

Failure of proof “defenses” do not provide an independent
10 No. 06-2674

3 The principal distinction between justification and excuse

lies in the concerns animating the affirmative defense. See 2

Wayne R. LaFave, Substantive Criminal Law § 9.1(a)(4) (2d ed.

2003) [hereinafter “LaFave”]. Justification affirmative defenses

focus on special circumstances under which the harm caused

by the defendant’s actions is outweighed by the risk of a

greater harm. Id. § 9.1(a)(3). Such defenses include self-defense,

defense of others and necessity. See Paul H. Robinson, Criminal

Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 242

(1982) [hereinafter “Robinson”]. Affirmative defenses of excuse,

on the other hand, rest on the conclusion that, because of a

particular disability or impairment, it is inappropriate to

hold the defendant criminally responsible for the otherwise

unlawful conduct. See LaFave § 9.1(a)(4). Duress, somnambulism, infancy and mistake are all examples of defenses

grounded in excuse. See Robinsion at 242-43.

basis for escaping criminal liability, but arise when a

defendant introduces evidence that tends to show that the

prosecution has failed to prove some element of the

charged offense beyond a reasonable doubt, such as intent.

Id. at § 9.1(a)(1). A failure of proof “defense” does not

excuse conduct, but puts the prosecution to its burden of

proving each element of an offense beyond a reasonable

doubt. Affirmative defenses of justification and excuse,

on the other hand, excuse conduct otherwise punishable

without controverting the evidentiary sufficiency of the

Government’s proof of the elements of the underlying

offense.3 See Dixon, 126 S. Ct. at 2441. Affirmative defenses of justification and excuse do not negate criminal

intent when the required mental state is that the defendant acted knowingly. Id. at 2442.

The public authority defense is an affirmative defense

of excuse derived from the common law. See United States
No. 06-2674 11

4 A closely related affirmative defense is the defense of entrapment by estoppel, an affirmative defense also grounded in the

Due Process Clause of the Fifth Amendment. Entrapment by

estoppel provides an affirmative defense for action taken in

reasonable reliance on assurances by government officials that

the conduct is legal. See United States v. Howell, 37 F.3d 1197,

1204 (7th Cir. 1994). We have questioned the meaningfulness

of the difference between the two defenses. See United States v.

Baker, 438 F.3d 749, 753 (7th Cir. 2006). To the extent the distinction is meaningful, the main difference is that, in the case of the

public authority defense, the defendant engages in conduct at

the request of a government official that the defendant knows

to be otherwise illegal, while in the case of entrapment by

estoppel, because of the statements of an official, the defendant

believes that his conduct constitutes no offense. See 53 Am. Jur.

Proof of Facts 3d 249 Proof of Defense of Entrapment by Estoppel

§ 20 (1999). Neither defense implicates the defendant’s mens

rea, except in the rare case in which mistake of law negates the

required mental state of the offense. In such case the defense of

entrapment by estoppel also could constitute a failure of proof

“defense” because the government agent’s misstatement of

the law would lead the defendant to believe that there was

nothing criminal about his conduct under any circumstances. See

generally Cox v. Louisiana, 379 U.S. 559, 571 (1965) (holding that

it would offend due process to permit the state to sanction

individuals from demonstrating in an area where police told

them they could hold their demonstration); Raley v. Ohio, 360

U.S. 423, 437-39 (1959) (holding that it would offend due process

to permit criminal prosecution of an individual for invoking a

(continued...)

v. Pitt, 193 F.3d 751, 756 (3d Cir. 1999). It is grounded in the

principle that prosecuting an individual who acts in

reliance upon official statements that one’s conduct is

lawful offends due process.4

 Like the statute involved in
12 No. 06-2674

4 (...continued)

privilege against self-incrimination in hearings before a state

legislative commission after having been assured of his right

to do so by the chairman, members and counsel of the commission); Howell, 37 F.3d at 1204 (stating that the defense of

entrapment by estoppel is grounded in the Due Process Clause

of the Fifth Amendment).

Dixon, the required mental state for an offense under 21

U.S.C. § 841(c)(2) is that the defendant act “knowingly.”

Generally, the prosecution meets its burden with respect

to this mental state when it proves beyond a reasonable

doubt that the defendant had knowledge of the facts

constituting the offense. See Dixon, 126 S. Ct. at 2441. As

noted above, common law affirmative defenses of excuse

do not controvert this mental state. Id. at 2442. Thus, the

public authority defense, as an affirmative defense of

excuse, does not controvert an essential element of the

offense with which Mr. Jumah was charged and does not,

of its own force, place the burden on the Government to

disprove the defense beyond a reasonable doubt in order

to prove his guilt.

At common law, the burden of proof for all affirmative

defenses of justification and excuse rests on the defendant.

Id. at 2443 (citing Patterson v. New York, 432 U.S. 197, 202

(1977)). Because the public authority defense is an affirmative defense based on excuse, we must conclude that

Congress intended the burden to rest on the defendant

to prove the defense by a preponderance of the evidence.

2.

Mr. Jumah was charged with violating 21 U.S.C.

§ 841(c)(2). Mr. Jumah points to nothing in the structure
No. 06-2674 13

or history of 21 U.S.C. § 841(c)(2) that suggests that Congress intended to depart from the common law rules

related to affirmative defenses. Thus, we must presume

that Congress intended the federal judiciary to follow

established common law rules with respect to affirmative

defenses raised against a charged violation of 21 U.S.C.

§ 841(c)(2).

C.

Ordinarily, we review a district court’s decision regarding a motion for a new trial for an abuse of discretion.

United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005).

However, because the Government withdrew its proposed jury instruction on the burden of proof and did not

argue, in its opposition to Mr. Jumah’s motion for a

new trial, that the burden of proof on the public authority affirmative defense rests on the defendant, it

forfeited this argument, and, consequently, our review

is limited to plain error. See United States v. Linwood, 142

F.3d 418, 422 (7th Cir. 1998). Under the plain error standard, the party asserting the error bears the burden of

persuasion on the following points: (1) that there is error,

(2) that the error is plain, and (3) that the error “affects

substantial rights.” See United States v. Olano, 507 U.S. 725,

732-34 (1993). Further, we may not exercise our discretion to consider forfeited error “unless the error ‘seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.’ ” Id. at 732 (quoting United States

v. Young, 470 U.S. 1, 15 (1985)) (some internal quotation

marks omitted).

Our analysis in the preceding section establishes that

the district court’s holding, in reliance on our decision in

Talbott, that the Government had the burden of disprov-
14 No. 06-2674

ing Mr. Jumah’s public authority defense beyond a reasonable doubt was error. Given the Government’s withdrawal of its tendered instruction on the allocation of the

burden of proof on the defense of public authority, we

must determine, however, whether this error was plain.

When, at the time of the district court proceedings, the

prevailing circuit law was settled and that law is clearly

contrary to the law at the time of appeal, “it is enough that

the error be ‘plain’ at the time of appellate consideration.”

Johnson v. United States, 520 U.S. 461, 468 (1997); United

States v. Vincent, 416 F.3d 593, 603 (7th Cir. 2005). In light

of the intervening Supreme Court decision in Dixon, the

district court’s error was plain.

Turning to the third prong of our plain error analysis, an

error affects a party’s substantial rights if it is prejudicial in

the sense that it affects the outcome of the proceedings.

Vincent, 416 F.3d at 603. Here, the prejudicial effect of the

error is clear. At trial, the district court stated that the

Government was not required to disprove the public

authority defense beyond a reasonable doubt. In response

to Mr. Jumah’s motion for a new trial, the court later

reconsidered this conclusion and held that this ruling had

been in error and that the Government was required to

disprove the defense beyond a reasonable doubt. This later

ruling, not the original ruling at trial, was in error. The

district court would not have granted Mr. Jumah’s motion

for a new trial had it had the benefit of the Supreme

Court’s decision in Dixon. This error prejudiced the Government by depriving it of a jury verdict rendered by a

properly instructed jury.

If an error is plain and it affects a party’s substantial

rights, we shall exercise our discretion and reverse the

district court’s decision if “the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceed-
No. 06-2674 15

ings.’ ” Olano, 507 U.S. at 732 (quoting Young, 470 U.S. at

15) (some internal quotation marks omitted). Here, permitting the district court’s decision to grant a new trial to

stand would result in a new trial even though the instructions given in the first trial were not erroneous. Allowing

a new trial following an error-free trial based solely on

plain error in granting the new trial compromises the

“integrity or public reputation” of the judicial proceedings and invites justified public scorn. Johnson, 520 U.S. at

470 (quoting Roger J. Traynor, The Riddle of Harmless Error

50 (1970)).

D.

Mr. Jumah further submits that, even if Dixon controls

this case, he was entitled to a new trial. More precisely,

Mr. Jumah claims that the district court failed to instruct

the jury that the defendant bears the burden of proving

the affirmative defense of public authority by a preponderance of the evidence. Left without any particular

guidance with respect to the standard of proof on the

affirmative defense, the jury may have concluded, submits Mr. Jumah, that he had to prove that defense beyond

a reasonable doubt. The jury must have interpreted the

instructions in this way, he continues, because the only

instructions regarding burden of proof placed the burden

on the Government to prove the elements of the offense

beyond a reasonable doubt.

Mr. Jumah did not request an instruction stating that the

burden was on him to prove the defense by a preponderance of the evidence. We therefore must review this

contention for plain error. See United States v. Mutuc, 349

F.3d 930, 935 (7th Cir. 2003). Accordingly, Mr. Jumah must

establish that failure to give the instruction he now re-
16 No. 06-2674

5 We shall assume that the district court’s failure to instruct the

jury that Mr. Jumah had the burden to prove the public authority defense by a preponderance of the evidence was error.

Although “[a] defendant is entitled to have the jury consider any

theory of defense supported by law and evidence,” he is not

entitled to any particular jury instruction regarding that theory.

United States v. Mutuc, 349 F.3d 930, 935 (7th Cir. 2003); see also

United States v. Irorere, 228 F.3d 816, 825 (7th Cir. 2000) (applying

the same factors in the context of plain error review). The district court need not submit a particular theory of the defense

instruction “if its essential points are covered in another

instruction.” United States v. Manjarrez, 258 F.3d 618, 626 (7th Cir.

2001).

The instruction that Mr. Jumah now contends that the district

court should have given the jury is a correct statement of the

law under the Supreme Court’s decision in Dixon. As our earlier

discussion demonstrates, Dixon makes clear that the defendant

has the burden of establishing the public authority defense by

a preponderance of the evidence. See Dixon, 126 S. Ct. at 2447-

48 (holding that, when Congress is silent on the issue of the

burden of proof applicable to a common law affirmative defense

that does not negate an element of the offense, we presume

Congress intended the defendant to bear the burden of proof of

the defense by a preponderance of the evidence). 

We also shall assume, for purposes of the present analysis,

that the district court correctly concluded that the public

(continued...)

quests was (1) error, (2) that was plain and (3) that

such failure affected his substantial rights. See Olano, 507

U.S. at 732-34.

We shall assume, arguendo, that, on the basis of the

foregoing discussion, the first two parts of the plain error

analysis are met.5

 In short, we shall assume that failure to
No. 06-2674 17

5 (...continued)

authority defense was fairly raised by the evidence at trial.

Likewise, the requested instruction was not part of the charge

to the jury, and no other instruction addresses Mr. Jumah’s

burden with respect to the public authority defense.

give the instruction allocating the burden of proof on the

public authority instruction was error and that the error

was plain. We shall focus on whether the absence of the

instruction Mr. Jumah requests affected his substantial

rights. Mr. Jumah must show “ ’a reasonable probability

that, but for [the error claimed], the result of the proceeding would have been different.’ ” United States v. Dominguez

Rodriguez, 542 U.S. 74, 81-82 (2004) (quoting United States

v. Bagley, 473 U.S. 667, 682 (1985)) (stating that Bagley

provides a sensible model for determining whether

error “affects substantial rights” when applying Olano).

To assist the reader, we pause to set out the instructions on the elements of the offense and the affirmative

defense of public authority as given by the district court:

The defendant is charged in the indictment with

knowingly and intentionally possessing and distributing a listed chemical, namely, approximately 1,016

tablets of pseudoephedrine, a List 1 chemical, knowing and having reasonable cause to believe the listed

chemical would be used to manufacture a controlled

substance, namely, mixtures containing a detectable

amount of methamphetamine, a Schedule II narcotic

drug controlled substance.

To sustain the charge of possessing or distributing

pseudoephedrine, the government must prove the

following propositions:
18 No. 06-2674

First, the defendant knowingly or intentionally

possessed or distributed pseudoephedrine; second, the

pseudoephedrine is a listed chemical; and [] third, the

defendant possessed or distributed pseudoephedrine

knowing or having reasonable cause to believe that it

would be used to manufacture methamphetamine.

It does not matter whether [the] defendant knew the

pseudoephedrine was a listed chemical. It is sufficient

[that] the defendant knew or had reasonable cause to

believe that it would be used to manufacture methamphetamine or some other prohibited drug.

If you find from your consideration of all of the

evidence that each of these propositions has been

proven beyond a reasonable doubt, then you should

find the defendant guilty.

A defendant who acts in reliance on public authority

does not act knowingly and should be found not guilty.

A defendant acts under public authority if, one, the

defendant is affirmatively told that his conduct

would be lawful; two, the defendant is told this by an

official of the government; three, the defendant actually

relies on what the official tells him in taking the action;

and, four, the defendant’s reliance on what he was told

by the official is reasonable in light of the circumstances.

In considering whether defendant—a defendant

actually relied on representations by an official that his

conduct would be lawful, you should consider all of

the circumstances of their discussion, including the

identity of the official, the point of law discussed, the

nature of what the defendant was told,—let me say that

again.
No. 06-2674 19

In considering whether a defendant actually relied

on representations by an official that his conduct

would be lawful, you should consider all of the circumstances of their discussion, including the identity of

the official, the point of law discussed, the nature of

what the defendant told and was told [by] the official,

and whether that reliance was reasonable.

R.136-5 at 520-22.

As Mr. Jumah correctly points out, the district court did

not instruct the jury about the allocation of the burden of

proof for the public authority defense. He submits that

the absence of such an instruction worked to his prejudice because, in its absence, the jury not only may have

placed the burden of proof upon him but also may have

assumed that he had to prove that defense beyond a

reasonable doubt.

We cannot accept this argument. The wording and the

placement of the public authority defense instruction

makes it very likely that the jury assumed that the Government had the burden of disproving the public authority defense. Notably, the only instruction relating to

burden of proof addressed the Government’s burden to

prove each element of the offense beyond a reasonable

doubt. Among the elements instructions was the admonition that the Government was required to prove that Mr.

Jumah had acted knowingly. The public authority instruction followed immediately the elements instruction; it

stated that Mr. Jumah could not have acted knowingly if

he had acted on the reasonable belief, induced by the

representation of a government official, that he was acting

under public authority.

After Dixon, the court’s instructions would not be correct. Dixon makes clear that the public authority affirma-
20 No. 06-2674

tive defense does not negate the knowledge element of

the offense, see Dixon, 126 S. Ct. at 2441-42, and that the

defendant must establish that defense by a preponderance of the evidence, see id. at 2447-48. Nevertheless,

a jury faithfully following the instructions, as given by the

district court, would have understood, in all likelihood,

that the Government had the burden of disproving the

affirmative defense of public authority in order to prove,

beyond a reasonable doubt, that the knowledge element

of the offense was established. In short, Mr. Jumah received, in all likelihood, an unwarranted benefit from the

court’s instructions. Indeed, given the evidence of record,

if the district court had had the benefit of Dixon, it well

might have determined that Mr. Jumah had not submitted sufficient evidence to place this issue before the

jury. We must conclude that there is no reasonable probability that the result of the proceeding would have been

different had the jury been instructed in accordance

with the principles now established by Dixon. Dominguez

Rodriguez, 542 U.S. at 81-82 (citing Bagley, 473 U.S. at 682).

Therefore, Mr. Jumah has not met his burden of demonstrating that the failure to give the requested instruction

affected his substantial rights.

Conclusion

For the reasons set forth in this opinion, we hold that it

was plain error for the district court to grant Mr. Jumah a

new trial. Further, under the circumstances presented

here, it was not plain error for the district court to fail to

instruct the jury that the burden rested on Mr. Jumah to

establish the elements of the public authority defense by a

preponderance of the evidence. Accordingly, the deci-
No. 06-2674 21

sion of the district court is reversed and remanded with

instructions to reinstate the jury’s verdict.

REVERSED and REMANDED with INSTRUCTIONS

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-16-07