972 546 FEDERAL REPORTER, 2d SERIES lawful when they were told they were called in because the action would have been unlawful for the F.B.I. The ultimate point is that appellants' mistake of law, whether or not it is classified as reasonable, does not negative legal responsibility, but at best provides a reason for clemency on the ground that the strict rules of law bind too tight for the overall public good. Any such clemency is not to be obtained by tinkering with the rules of responsibility but must be provided by those elements of the system of justice that are authorized by law to adjust for hardship and to provide amelioration. We should refuse to cut away and weaken the core standards for behavior provided by the criminal law." Softening the standards of conduct rather than ameliorating their application serves only to undermine the behavioral incentives the law was enacted to provide. It opens, and encourages citizens to find, paths of avoidance instead of rewarding the seeking of compliance with the law's requirements. The criminal law cannot "vary legal norms with the individual's capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser 58. My rejection of the defendants' mistake of law defense also leads me to reject defendants' contention that failure to present evidence on their claimed defense to the grand jury requires dismissal of the indictment. Nor is an indictment subject to dismissal because of challenges to the competency or sufficiency of the evidence before the grand jury. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956). 59. A.L.I. Model Penal Code § 2.09, Comment (Tent. Draft No. 10, 1960), at 6. 60. U. S. v. Dotterweich, 320 U.S. 277, 285, 64 S.Ct. 134, 88 L.Ed. 48 (1943), quoted in part in United States v. Park, 421 U.S. 658, 669–70, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). 61. See United States v. Dougherty, 154 U.S. App.D.C. 76, 473 F.2d 1113 (1972). 62. While not strictly congruent with the law underlying the instructions later given to the The sentence performed its proper function here. Our system is structured to provide intervention points that serve to mitigate the inequitable impact of general laws while avoiding the massive step of refòrmulating the law's requirements to meet the special facts of one hard case. Prosecutors can choose not to prosecute, for they are expected to use their "good sense. conscience and circumspection" to ameliorate the hardship of rules of law." Juries can choose not to convict if they feel conviction is unjustified, even though they are not instructed that they possess such dispensing power." In this case, Barker and Martinez were allowed to testify at length about the reasons motivating their involvement in the Fielding operation. This was an exercise of discretion by the judge that gave elbow room to both defendants and jury." In sentencing Barker and Martinez after they were convicted to only three years probation, the trial judge made a subjective evaluation of the defendants' conduct in light of the goals of the criminal law." Barker and Martinez's patriotic motives, good intentions, and prior experience with the CIA and Hunt must all have influenced the sentence imposed." The trial judge jury it did not involve the judge in an affirmative mis-statement of the law. The extra latitude in terms of what may be presented to the jury may be viewed as a historic resonance in practice from the days when juries had the power to set punishment as well as to convict, and evidence was admissible at trial in mitigation of punishment. Williams, Criminal Law supra at 291. 63. I am well aware that there are differences between próbation and acquittal-the judgment of leniency being made by a judge and not a jury and a felony conviction having possible collateral effects in such matters as voting and employment. But if the situation does not prompt a failure to prosecute, the possibility of suspension of imposition of sentence and probation remains an important amelioration that avoids a breach in the law's resolution of interests. 64. Establishment and vindication of the law need not be accomplished by a heavy penalty. See, e. g., Hall and Seligman, supra at 650, Note, Political Offenders, supra at 828-832. UNITED STATES v. MAKDIAN exercised his sentencing power to distinguish, in terms of degree of moral guilt, between appellants Barker and Martinez and codefendant Ehrlichman. But sympathy for defendants, or the possibility that their mistake might be considered "reasonable" given their unique circumstances, must not override a pragmatic view of what the law requires of persons taking this kind of action. I come back-again and again, in my mind to the stark fact that we are dealing with a breaking and entering in the dead of night, both surreptitious and forcible, and a violation of civil rights statutes. This is simply light years away from the kinds of situations where the law has gingerly carved out exceptions permitting reasonable mistake of law as a defense cases like entering a business transaction on the erroneous advice of a high responsible official or district attorney, or like responding to an urgent call for aid from a police officer. I dissent; 973 Exhibit 48: American Law Division Memorandum (Good Faith Defense) of July 7, 1977 WASHINGTON, D.C. 20540 To: THE LIBRARY OF CONGRESS Congressional Research Service July 7, 1977 Senate Subcommittee on Administrative Practice and Procedure Subject: Good Faith, Reasonable Reliance on Apparent Authority as a Defense to Criminal Prosecution and Civil Liability of Government Officials Generally This will respond to your memorandum dated June 17, 1977 and our subsequent telephone conversation. Discussed briefly here, because of the constraints of time, is the nature and degree of general acceptance of the defense of good faith, reasonable reliance on the apparent authority of a government official in the criminal context. The starting point for such an analysis must be a look at the traditional legal principles surrounding the defense of ignorance or mistake of fact or law. As you requested, a detailed examination of the recent decision of United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976) is undertaken in order to determine the extent to which the defense of reliance upon apparent authority may be available to government officials themselves. Finally, a brief summary of current law regarding the civil liability of government officials is included in order to shed light on the likelihood that such defense may also be available to successfully defend civil suits arising out of activities believed by the official to be authorized. CRS-2 CRIMINAL LAW One criminal law text has stated that "no area of the substantive criminal law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact or law. It is frequently said, on the one hand, that ignorance of the law is no excuse, and on the other, that a mistake of fact is an excuse. Neither of these propositions is precisely cor rect, and both are subject to numerous exceptions and qualifications." Lafave and Scott, Handbook on Criminal Law (St. Paul: 1972), at 356. It is widely accepted that an honest mistake of fact or law may be a defense when it negates a required mental element of a crime. Such a simple rule is complicated, however, by the fact that some courts consider that the mistake must be "reasonable" in order to suffice, and also because many statutory crimes do not make clear the precise nature of the mental state required for conviction. Id., at 357. It has been stated as a general rule (subject to exceptions in certain cases) that "mistake of fact will disprove a criminal charge if the mistaken belief is (a) honestly entertained, (b) based upon reasonable grounds and (c) of such a nature that the conduct would have been lawful and proper had the facts been as they were reasonably supposed to be." Perkins, Criminal Law (New York: 1969), at 939-940. "If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds." Id., at 941 excuse. Traditionally, it has been said that "ignorance of the law will not Lambert v. California, 355 U.S. 225 (1957) the Supreme Court referred to this CRS-3 principle as "deep in our law." (at 228) But the rule is not without exception: "Knowledge of the law is presumed; in most cases this presumption is conclusive but under exceptional circumstances it is disputable." Perkins, supra, at 922. Ignorance of the law, for example, may constitute a valid defense to a charge arising out of an unpublished law which has not otherwise been made available or brought to the attention of the accused. As suggested supra, ignorance or mistake of law may be a defense when "the mistake resulted from authorized reliance... upon a statute, a judicial decision or the advice of a public officer authorized to advise the public on such matters." Id., at 938. The Model Penal Code (Proposed Official Draft, 1962) provides for the defense of ignorance or mistake at Section 2.04. Note especially subsection (3): (1) Ignorance or mistake as to a matter of fact or law is a (a) the ignorance or mistake negatives the purpose, know- (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (a) the statute or other enactment defining the offense is (b) he acts in reasonable reliance upon an official state- |