8th Cir. Model Jury Instr. (Criminal) 9.01A

Defendant has raised a defense asserting that [he] [she] relied on erroneous advice from a government official that certain conduct was legal. This defense is known as entrapment by estoppel.

To prevail on [his] [her] entrapment by estoppel defense, the defendant must prove the following elements by the [preponderance] [greater weight] of the evidence. Defendant must show that each of the following is more likely true than not true:

One, the erroneous advice in question was provided by an official of the United States;1

Two, the government official affirmatively told the defendant that the illegal conduct was legal or permissible; and

Three, the defendant reasonably relied on the erroneous advice.

In determining whether the defendant’s reliance was reasonable, you may consider factors such as: [(1) whether the duties and responsibilities of the official of the United States include giving advice on the subject area in question; (2) whether the official of the United States regularly gives advice; and (3) whether the defendant reasonably believed [he] [she] had provided all of the facts necessary for the official of the United States to give advice.]2

If the defendant proves that each of the elements listed above is more likely true than not true, then you must find the defendant not guilty.