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as the assertion of a valid defense is critical to the leniency of the standard applied to a presentence withdrawal motion, it is necessary for me to address the question of the legal merit of the appellants' assertion of innocence. I conclude that the appellants' principal defense, based upon their mistake as to the authorized nature of the break-in, constitutes a legally valid defense to the charges against them.59 Their withdrawal motion should have been judged accordingly.

It is a commonplace of criminal law that an honest "mistake of fact" negates criminal intent, when the defendant's acts would not constitute a crime if the facts were as he supposed them to be.60 Conversely, a "mistake of law" is generally held not to excuse the commission of an offense, even though the defendant was unaware his action was prohibited. The frequent difficulty of distinguishing "law" from "fact," as well as the reluctance of modern courts to hold individuals criminally liable when they acted with honest and innocent purpose, however, has led to some erosion of the principle that "everybody is presumed to know the law" 62 When presented with a mistake on the borderline between law and fact, or a case in which the imposition of strict liability would be particularly unjust, the courts have tended either to characterize the defendant's error as factual in nature or to find a way to declare an exception to the "mistake of law" doctrine.

Chief Judge Bazelon, although concurring in the majority opinion, has taken the position that the appellants' belief in the official authorization of their ven

ture constitutes a valid defense to the charges against them. He makes the argument, based on general precepts of criminal mens rea, that recognition of an exception to the "mistake of law" doctrine in this case would not depart significantly from the principle of conventional morality which allows a defense for mistake of fact. Judge MacKinnon, dissenting from the majority opinion, takes a somewhat different approach. He argues that the appellants' error in relying on Hunt's representations should simply be characterized at the outset as one of fact-i. e., "a mistake as to the fact that all necessary authorization for their activities had been obtained."

I agree with both my colleagues that generally a citizen should have a legal . defense to a criminal charge arising out of an unlawful arrest or search which he has aided in the reasonable belief that the individual who solicited his help was a duly authorized officer of the law. I am troubled, however, by the breadth of the language in Chief Judge Bazelon's opinion. That the distinction between "law" and "fact" is often more "nice than obvious" does not mean it is nonexistent.

Judge MacKinnon's approach, although appealing under the unique facts of this case, I suggest also plays too loose with the law-fact distinction. An error as to the legality of a particular activity, even if based upon the assurances of a government official, has always been treated as a mistake of law in AngloSaxon jurisdictions. Although a great many commentators, and a growing number of courts, have argued that an exception to the mistake of law doctrine

ever, the gravamen of the appellants' principal: defense is not-as was the case in Ehrlichman-that warrantless searches are legal if conducted for national security purposes. Rather, the appellants contend that a citizen has a valid defense to criminal charges arising out of an unlawful search which he has aided in justifiable reliance on the authority and representations of a high government official. Therefore, even assuming, arguendo, that the Ehrlichman decision was correct, it is not controlling here.

60.

subsidiary defenses, based on entrapment and selective prosecution.

1 Wharton's Criminal Law and Procedure § 157 (Cumm. Supp. 1974); Williams, Criminal Law: The General Part § 52-74 (2d ed. 1961); Model Penal Code § 2.04(1) (P.O.D. 1962). 61. Wharton's, supra note 60, at § 162; Williams, supra note 60, at c. 8; Hall & Seligman, Mistake of Law and Mens Rea, 8 U.Chi.L.Rev. 641, 642 (1962).

should be recognized in the case of reliance on the authority of a government official, none has suggested that it qualifies for treatment under the rubric of mistake of fact. As will be discussed more fully below, traditionally a defendant has been allowed a mistake of fact defense only when he was in possession of facts, albeit erroneous, about his activity which, if true, would have rendered it legal. If he is not in the possession of such facts, but relies instead entirely on the erroneous assertions of a government official or private individual as to the legality of the activity, his mistake is one of law.

63

The case of People v. Weiss, discussed at some length in the opinions of my colleagues, provides a good vehicle for examining the analytical approach I think should be applied to the case at bar. The defendants in Weiss were convicted of kidnapping, for assisting one whom they believed a detective to arrest and confine an innocent individual they were told was a murderer. They appealed the trial court's refusal to allow the proffer of a defense based on the defendants' good faith belief that their actions were legally authorized—i. e., a "mistake of law" defense (which of course would be proved by facts). The New York Court of Appeals observed first that under that state's law one eleIment of the crime of kidnapping was that the defendant have "acted without authority of law." 64 The court then reasoned:

If in good faith they believed that they were acting within the law, there could have been no intent to act without authority of law." Their be

63. 276 N.Y. 384, 12 N.E.2d 514 (1938). 64. Id., at 387, 12 N.E.2d at 514.. 65. Id., at 389-90, 12 N.E.2d at 515-16. 66. See Hall & Seligman, supra note 61 at 1. 67. The pleas of guilty which the majority opinion allows to stand (Majority Opinion, 168 U.S.App.D.C. at n. 1, 514 F.2d at 211 n. 1) are to the following counts: Count One: Conspiracy to commit the crimes charged in the other counts. See 18 U.S.C. § 371.

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lief or disbelief indicates intent or lack of it, [cite], and they were entitled to testify in respect to their intent based upon their belief, [cites].

No matter how doubtful the credibility of these defendants may be or how suspicious the circumstances may appear, we cannot say as a matter of law that, even in so strong a case as this for the prosecution, the jury was not entitled to consider the question whether defendants in good faith believed that they were acting with authority of law. We are, therefore, constrained to reverse the judgment of conviction and order a new trial for the purpose of submitting that question of fact to the jury.65

that

Preliminarily, it should be made clear Weiss is legally distinguishable from the case sub judice on statutory grounds. As interpreted by the court of appeals, a defendant could be convicted of kidnapping under the New York statute only if he seized a person with the knowledge that his action was illegal. By thus defining the crime, the court established that any condition which negatived that required state of mind should result in an acquittal. A mistake of law which had this effect, then, could give a valid defense.66 None of the crimes which remain charged to the appellants in the instant case, however, has as an element the specific criminal intent to act in a manner known to be illegal." To be sure, conspiracy and burglary are crimes of "specific intent," in that each requires a particular intention in addition to the intentional doing of the actus reus itself,68 but this kind of mental state should not be confused with the

Count Two: Burglary, consisting of entry into the Democratic National Committee headquarters, with intent to steal the property of another. See 22 D.C.Code § 1801(b).

Count Six: Unlawful possession of devices for intercepting oral communications. See 23 D.C.Code § 543(a)(1).

See note 70 infra.

68. See Perkins on Criminal Law 629 (2nd ed. 1969).

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requirement of an intent to violate the law. In the case of conspiracy, generally, "an agreement to do an act that, unknown to the parties, is a crime, is criminal." "69 Mistake of law is no excuse. Similarly, burglary requires only an entry into an area "with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense." 71 There is no requirement that the actor realize the illegality of his intended action, so long as it actually is unlawful. A mistake on that score, therefore, is not normally recognized as a defense.

As Chief Judge Bazelon correctly observes, however, the technical distinguishability of the decisive issue in Weiss 69. Williams, supra note 60, at 678.

70. It should be noted, however, that mistake of law has been recognized as a defense to conspiracy when the target offense was not "malum in se." See Perkins, supra note 68, at 630-31; Landen v. United States, 299 F. 75 (6th Cir. 1924); Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946). Burglary is clearly "malum in se." It is possible, on the other hand, to view the D.C.Code offense of possession of eavesdropping devices as merely "malum prohibitum." If this view is correct, and the defendants were unaware that possession of eavesdropping devices is a crime, then they cannot be convicted of conspiracy to eavesdrop.

Of greater importance to this case, however, is the fact that, as with the kidnapping statute involved in Weiss (and unlike the statutes here prohibiting burglary and conspiracy), the D.C. statute prohibiting possession of eavesdropping devices may itself recognize a mistake of law defense. The statute is directed only at one who "wilfully possesses" an interception device. "[W]ilfull is a word of many meanings, its construction often being influenced by its context. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). One commentator has made the following generalization:

[W]hen found in a statute creating a civil offense [i. e., malum prohibitum] the word "wilful" means intentional as distinguished from inadvertent or negligent and does not imply anything in the nature of an evil intent or bad motive, whereas such additional element is required when the word is found in a common-law definition or in a statute dealing with a true crime.

Perkins, supra note 68, at 780-81. The question of whether the offense involved here is a

from that presented in the instant case does not destroy the utility of Weiss as a measure of this case. Assuming arguendo that the New York court had not had before it a statute which in terms made a mistake of law defense available, the question becomes whether a cogent decision allowing a defense based on mistake could have been rendered nonetheless. In effect, the defendants in Weiss made two mistakes. The first was in believing that the individual who solicited their assistance was a detective. This can safely be characterized as a mistake of fact. Their second error was in believing that the bogus detective had the authority to arrest the individual pointed out to them. This mistake, depending on the circumstances, could have been one either of fact or of law.

記

"true crime" (malum in se) or only a "civil offense" (malum prohibitum) is difficult of resolution. "Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set of comprehensive criteria for distinguishing between [the two types of offenses]." Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The possibility of five years imprisonment for a violation indicates a legislative intent that possession of eavesdropping devices be regarded as a "true crime." The fact, however, that such possession has not long been prohibited, and may still not be considered illegal in the mind of the public, argues that it should be treated as "malum prohibitim" only.

With no discussion, the only court in this jurisdiction to construe the term "wilfully" in a statute similar to the D.C.Code provision conIcluded that it required that the defendant "knew his activity to be unlawful." United States v. Bast, 348 F.Supp. 1202, 1203 (1972). That decision referred to the prohibition, contained in 18 U.S.C. § 2512(1)(c), against placing an advertisement for an interception device in any publication. The United States Code provision closely parallels that of the D.C.Code. Both prohibit wilful advertisement as well as wilful possession of eavesdropping devices. Indeed, in the U.S. statute, the term "wilfully" is used only once, and modifies all activities prohibited by the statute. If "wilful”, advertisement of an eavesdropping device means advertisement with knowledge of its unlawfulness, then "wilful" possession would appear to require the same kind of knowledge." The defendants' mistake in believing their activity was lawful, therefore, would, if honest, constitute a complete defense to that charge. 71. 22 D.C.Code § 1801(b).

A detective, or any other officer of the law, has legal authority to make an arrest only if it meets the "reasonableness" standard of the Fourth Amendment. This requires at least probable cause and, depending on the situation, a judicial warrant. To base a successful defense on mistake of fact, the defendants in Weiss would have had to show that the seizure and confinement of the individual involved would have been legal under the facts as they believed them to be. As far as the opinion of the New York Court of Appeals reveals, however, the defendants believed nothing about the individual whom they helped apprehend other than that he was a murderer. This unsupported conclusion was clearly inadequate to support a finding of probable cause. Nor did the defendants labor under the mistaken impression that the detective had a valid warrant for the arrest of the "murderer." 72 They were the victims not of mistake of fact there, fore, but of ignorance of fact. Such ignorance has never been a defense.73

Similarly, the appellants in the instant case were ignorant of sufficient facts about the Watergate operation to argue that the break-in would have been legal

72. Even if the defendants had believed that the detective had a valid warrant, their mistake would have been one of law, in the absence of facts known to them which could support a proper judicial determination that an arrest warrant should issue. The situation in which a citizen relies on the authority of a judge, rather than a police officer, presents a stronger case for recognizing a defense based on mistake as to the lawfulness of his action. Reliance on the pronouncement of an attorney general or any other high state official also presents a stronger case. But if the citizen relies entirely on that authority, his mistake remains one of law, not of fact. This does not mean that no defense can be recognized in such a situation. It means only that such a defense must be viewed as an exception to the mistake of law doctrine, rather than an extension of mistake of fact protection.

73. To illustrate, if a man is charged with kidnapping under a statute which prohibits enticing a girl under sixteen away from her parents, he should have a good defense, based on mistake of fact, if he honestly believed the girl was over sixteen. See State v. Suenen, 36 Idaho 219, 209 P. 1072 (1922) (dictum). If he

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if the facts had been as they believed them to be. They relied not on what they knew about the operation, but on what they knew about Hunt. It was upon his position and authority that their belief in the legality of their action was based. Assured of Hunt's integrity and high rank in the government, the appellants accepted his judgment as their own. In truth, however, as a legal matter Hunt had neither probable cause nor a warrant (if such was legally required) for a search. His judgment (or what the appellants believed to be his judgment) as to the lawfulness of the break-in was erroneous. His mistake (or disregard) of law became their mistake of law.

The question remains whether, assuming the defendants in Weiss were misled by a mistake of law, they could have based a valid defense thereon (independent of the element of knowledge contained in the statute). I believe that they might have." All of the arguments for allowing a defense of mistake of law to the citizen who acts in reliance on the authority of a public official apply most strongly to a case where the official is a police officer or agent who has enlisted

did not know whether or not she was under sixteen, his ignorance of fact cannot excuse him. His action was not legal under the facts as he knew them. Any impression that he was acting innocently, therefore, rested on a mistake of law, even if he was assured erroneously by an employee of the government that his action was not prohibited. See Hopkins v. State, 193 Md. 489, 69 A.2d 456. (1950).

74. The Model Penal Code allows a "mistake of law" defense to a charge of unlawful use of force for a private person called to the aid of a police officer, if he honestly believes that the officer who calls his aid is acting lawfully. M.P.C. § 3.07(4)(a), Commentary at 64-65 (Tent. Draft No. 8 1958). This rule is explicit. ly recognized as an exception to the general rule that mistake of law is no defense. M.P.C. §3.09(1)(b). Significantly, only a mistake of fact is a defense to a criminal prosecution for an unlawful arrest when a private person has come to the aid of another private person. In such a case, the Code requires not only that "(i) he believes the arrest is lawful" but also that "(ii) the arrest would be lawful if the facts were as he believes them to be." M.P.C. § 3.07(4)(b) (emphasis added).

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the aid of a citizen to help him in the performance of his appointed task.75 We should be most reluctant criminally to punish the public-spirited individual who freely performs his civic duty-especially in a day when noninvolvement appears the watchword of citizens at the scene of a crime. This does not mean that protection need be afforded every person who asserts a belief, however irrational, that he acted at the behest of an officer of the law. A balance may be struck here by requiring that the citizen's mistake as to the officer's authority be reasonable.76 All the circumstances surrounding the incident in question would enter into such a determination, including the kind of operation the citizen was asked to take part in and, in cases where the "officer" was not such in reality, the objective manifestations of his office. It is not clear from the description of the New York Court of Appeals whether the defendants in Weiss could have met such a test.

It is this question which I consider decisive on the issue of the validity of the 75. In support of the proposition that a mistake

of law engendered by reliance on the authority of a public official provides a valid defense in compelling circumstances, see Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), and United States v. Mancuso, 139 F.2d 90 (3rd Cir. 1943). Cf. United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526 (1967) ("Ordinarily, citizens may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach. and certainly not if the Government's conduct constitutes 'active misleading' ..").

76. This parallels the defense of a good faith, reasonable belief in the lawful nature of their conduct which has been afforded police officers in a civil suit under the Fourth AmendSee ment for an unlawful arrest or search. Bivens v. Six Unknown Federal Agents, 456 F.2d 1339, 1347-49 (1972).

Significantly, if a mistake as to the authority of a government officer could be characterized as one of fact, rather than law, it would afford a defense no matter how unreasonable the defendant's perception. Although there is some authority to the effect that a mistake of fact must be reasonable to negate intent, (Wharton's, supra note 60, at 382 n. 19.) the better, and more widely held, view is that even an

defense asserted by the appellants in the instant case. If they honestly and reasonably believed the operation was lawful, their mistake of law should give them a valid defense in this context. We need not determine here whether in fact the appellants' mistake was reasonable, but only whether, as a matter of law, a jury could find that it was reasonable.

There is a wealth of evidence in this case that the appellants honestly and reasonably believed they were engaged in a top-secret national security operation lawfully authorized by a government intelligence agency. According to their affidavits, Hunt was widely known in Miami's Cuban-American community as a CIA agent; indeed he was Barker's "supervisor" for the Bay of Pigs invasion. Martinez had long been on CIA retainer, and Sturgis has taken part in the Bay of Pigs affair and other "clandestine operations" against the Castro regime. Gonzalez was fully apprised of his colleagues' CIA connections. Further, Hunt had an office at the White unreasonable mistake, if honest, constitutes a valid defense. (Williams, supra note 60, at 201; Model Penal Code, Tentative Draft No. 4, at p. 136 (Commentary on § 2.04(1) (1953).) In view of the strong public policy supporting the general principle that citizens disobey the law at their peril, whether they are cognizant of their disobedience or not, it would appear unwise to allow defendants a complete defense based on an irrational reliance on the authority of a government official.

At the same time, there is a presumption of regularity in official action on which, I would argue, the individual citizen should be able to rely, when his reliance is reasonable. As one pair of commentators has put it, arguing in favor of a limited mistake of law defense, "in dealing with a defendant who has followed advice from an officer of the state, one aspect of our general policy is to make the community do this very thing in its dealings with the state, and a rule that no defense will be given under any circumstances to such a defendant will be self-defeating." (Hall & Seligman, supra note 2, at 676 (emphasis added).) Whether this argument is accepted as applied to all state action, it remains true that a limited defense based on a reasonable mistake as to authority can be justified under the rubric of "mistake of law," but is an analytic anomaly when placed in the category of "mistake of fact."