The "Public Authority" Defense at Issue in a Pair of Interesting Cases in Chicago

A pair of federal prosecutions pending in Chicago raise interesting questions about the "public authority" defense, which is a perenially-vexed issue when it comes to illegal activity that might have taken place with some degree of awareness or even encouragment from officials.  The first case is United States v. Kashmiri, which arises out of the Mumbai attack among other things.  The defendant sought to advance an interesting form of “public authority” defense.  Specifically, he argued that he was directed to engage in certain conduct by Pakistan’s ISI, that Pakistan has immunity underthe Foreign Sovereign Immunities Act, and though this immunity might not apply to him directly it nonetheless interacts with the concept of the public authority defense so as to negate the scienter elements of the charged offenses.  Judge Leinenweber in an opinion on April 1st (sorry no link available so far as I know) rejected this argument and excluded the defense for the following reasons:

Defendant's proposed defense that Pakistani government and ISI officials sanctioned his violations of U.S. federal law is objectively unreasonable. The parties agree that no evidence exists that Defendant relied on representations from a U.S. federal official--or a party with apparent authority as a federal official--to engage in his alleged illegal activities. Defendant acted not in Pakistan or India, but rather in the United States. He cites no authority holding that a foreign government official can sanction an individual living and acting in the United States to violate U.S. federal law. Regardless of whether Defendant believed Headley conducted surveillance on behalf of the ISI or Lashkar in Mumbai, his argument that a nonfederal official can have actual or apparent authority to exempt him from violating a federal law fails.

The interesting thing about that is that the judge emphasized the defendant’s presence in the United States, as if the outcome somehow mighthave been different had he been abroad at the time.  Frankly, I cannot see why that should matter, but perhaps I'm just unaware of precedent suggesting otherwise.  I also think it is interesting that the judge did not address the argument that FSIA in any event does not confer immunity even on actual foreign government officials when it comes to criminal activity.  I’ve not looked into this closely for some time, but I believe that at least a few years ago courts were divided on that question.  See here for an example rejecting the notion of FSIA immunity from prosecution. Meanwhile, federal judges in Chicago are not done with "public authority" arguments.  United States v. Jesus Vicente Zambada-Niebla involves the prosecution of a major Sinaloa Cartel figure who was extradited to the United States.  According to this report, which displays what appears to be the actual defense motion (or at least one page thereof), the defendant intends to mount a public authority/entrapment-by-estoppel defense in some fashion, citing activities between 2004 and 2009.  Note that I've not seen any other reporting on this one, so take it with a grain of salt.