EDNY Judge Denies Government's Motion to Preclude Defendant from Introducing Evidence that He Believed His Conduct Was Authorized

The case of United States v. Morrison, 04 CR 699 (DRH) has already spawned some interesting decisions, including a significant preclusion of proffer statements based on government misconduct, discussed here.  Earlier this month, the court granted the defense another victory, 2007 WL 3274697 (E.D.N.Y. November 5, 2007), denying the government's motion to preclude the defendant from introducing any evidence that he believed his sales of contraband cigarettes were authorized by virtue of New York State's forbearance policy relating to tax collections on cigarette sales occurring on Native American reservations.

The court accepted the government's position that this evidence should not come in by way of an "entrapment by estoppel" defense.  That defense bars conviction of a defendant who reasonably believes that the government has authorized his commission of a crime.  But it does not apply in cases of fraudulent intent, since the defense itself negates the intent element.  As the defendant was charged under an aiding and abetting theory, a specific intent crime, the court held the defense was inapplicable.

The court held instead, however, that the evidence could be admitted to negate the specific intent element of the aiding and abetting statute.  Significantly, the court rejected the government's argument that the aiding and abetting charge is unaffected by the forbearance policy because the policy only pertains to on-reservation sales while the superseding indictment charges defendant with aiding and abetting off-reservation sales. The court held "[t]o the extent evidence is adduced at the trial that [d]efendant believed he had carte blanche to sell unlimited quantities of un-stamped cigarettes on the reservation regardless of what his purchasers did with those cigarettes thereafter, the forbearance policy is relevant to Defendant's intent as a purported aider and abettor."