Reliance on AG Opinion

[Lederman, Marty]

Prof. Funk asks for "a citation to ANY case in which an AG opinion telling a person his action is lawful has not been effective in having the conviction overturned on due process grounds."  Well, as far as I know there haven't been very many reported cases involving reliance on AG opinions (Lynne Henderson:  which cases did you have in mind?), so it's not surprising that there would be a dearth of such citations, but . . . cf. United States v. Dietrich, 126 F. 671, 675-76 (C.C.D. Neb. 1904) (Van Devanter, J.).

Due process is a valid defense to criminal prosecution only where there is actual reliance upon an official's opinion, and where the reliance is "reasonable under the circumstances," PICCO, 411 U.S. at 675; see also, e.g., United States v. Smith, 940 F.2d 710, 714 (1st Cir. 1991) (whether "reasonableness" test is met depends on the "totality of the circumstances"); United States v. Conley, 859 F. Supp. 909, 931 (W.D. Pa. 1994) (same); Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993) (same).  Claims of reliance on official government assurances of legality often can present difficult questions with respect to whether such reliance would be reasonable.  For example, would it be "reasonable" for a defendant to rely upon the legal opinion of the law enforcement officials of one jurisdiction if the defendant knows that officials of another jurisdiction with independent authority to enforce the statute in question disagree with that legal opinion?  See, e.g., Goosby v. Osser, 409 U.S. 512, 516-17 (1973).  Is it reasonable to rely upon the decision of one court of appeals where there is a circuit split on the issue in question?  See, e.g., Moskal v. United States, 498 U.S. 103, 114 n.6 (1990); United States v. Rodgers, 466 U.S. 475, 484 (1984).  In PICCO, the Government argued, and the Court suggested, that it might be unreasonable to rely upon administrative regulations that are inconsistent with the Supreme Court's construction of the applicable statute.  411 U.S. at 675 (remanding the issue to trial court for consideration under the facts of that particular case).  Similarly, it might be unreasonable in a particular case to rely upon even an AG opinion that is contrary to the "plain and unambiguous" terms of a statute, or the reasoning of which is "unsatisfactory," Dietrich, 126 F. at 676, or to rely upon an AG opinion that is contrary to substantial judicial precedent, or that takes one side on an issue that has precipitated a split in the opinions of the courts.

Marty Lederman (in my personal capacity, and with no intent to suggest anything at all respecting   either the Military Tribunal questions in general, or the Martin/Volokh debate, in particular)



-----Original Message-----
From: Bill Funk [mailto:funk at LCLARK.EDU]
Sent: Monday, November 26, 2001 4:24 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Impeachment for Supposed War Crimes


Lynne Henderson wrote:

> reliance on AG opinions hasn't helped most criminal defendants.

I would like a citation to ANY case in which an AG opinion telling a
person his action is lawful has not been effective in having the
conviction overturned on due process grounds.

> The whole issue of reasonable reliance on Justice Department
> interpretations of the Bolland Amendment  came up in the Iran-Contra
> hearings,  although no dispositive resolution was reached by Congress
> as I recall.

Violation of the Boland Amendment (the restriction on funding of
Contras) was not a criminal offense.  No one was ever prosecuted for
violating the Boland Amendment.

Bill Funk