What is the test for establishing an agency relationship?

"'[T]he first factor] require[s] evidence of more than mere knowledge and passive acquiescence by the Government before finding an agency relationship. [Citation.] . . . See, e.g., United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir.1996) ("[K]nowledge and acquiescence . . . encompass the requirement that the government must also affirmatively encourage, initiate or instigate the private action." . . .); United States v.

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