United States v. Cabrera
13 F.4th 140 (2021)
Rule of Law:
A defendant asserting an entrapment defense has a burden to produce "some credible" evidence of government inducement, not a burden of proof, and lay opinion testimony by a law enforcement officer based on specialized knowledge is inadmissible under Federal Rule of Evidence 701.
Facts:
- John Cabrera, a legal permanent resident who immigrated to New York in 2013, began visiting his barber, Marcos, around 2014.
- Marcos, a fellow Dominican immigrant, was deported in 2001 after a drug conviction, reentered illegally, and in 2016 became a paid informant for the Drug Enforcement Administration (DEA), receiving cash payments and annual deportation deferrals.
- Over a two-month period in late 2017, Cabrera and Marcos partnered to sell drugs, with Cabrera delivering fentanyl pills and Marcos, under DEA direction, paying Cabrera and pretending to resell the pills to fictitious customers.
- Cabrera gave Marcos a small free sample on September 7, then sold Marcos increasing quantities of pills on September 13, September 21, and September 27.
- Cabrera went silent after their September 29 meeting, but Marcos left multiple voicemails pushing for more deals and showed up at Cabrera’s workplace.
- On October 25, Cabrera and Marcos planned a fifth deal for 1,000 pills during an unrecorded barbershop meeting.
- On October 27, Cabrera was arrested with 1,100 pills while exchanging 1,000 pills for $15,000 with Marcos.
- At trial, Cabrera claimed Marcos repeatedly asked him to supply drugs until he relented due to personal and financial desperation, while Marcos claimed Cabrera initiated the partnership by telling him in 2016 he dealt drugs and later sought Marcos's help in finding buyers in 2017.
- Special Agent Daniel Son, who surveilled Cabrera, observed Cabrera employing "countersurveillance driving techniques," such as excessive speeding, erratic lane changes, and multiple U-turns.
Procedural Posture:
- The government charged John Cabrera in a four-count indictment for distributing and possessing with intent to distribute fentanyl.
- At trial, Cabrera's sole defense was entrapment, contending he was induced by the government informant, Marcos.
- During trial, Special Agent Daniel Son testified, and over Cabrera’s objection, he opined on rebuttal that Cabrera appeared to be an "experienced" drug dealer based on his observed driving techniques.
- The jury convicted Cabrera on all counts.
- Cabrera was sentenced to concurrent terms of 48 months’ imprisonment on each count.
- Cabrera appealed his conviction to the United States Court of Appeals for the Second Circuit, arguing that the jury instruction misstated the burden on the inducement element of his entrapment defense and that the district court abused its discretion by admitting Agent Son's opinion testimony.
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Issue:
Does a jury instruction that implicitly places a burden of proof on a defendant to establish government inducement for an entrapment defense constitute reversible error, especially when compounded by the improper admission of specialized lay opinion testimony from a law enforcement agent regarding the defendant's experience in drug dealing?
Opinions:
Majority - Dennis Jacobs, Circuit Judge
Yes, the jury instruction erroneously overstated the defendant's burden on the inducement element of his entrapment defense, and the district court abused its discretion by admitting the special agent's opinion testimony. The affirmative defense of entrapment requires the defendant to produce "some credible" evidence of government inducement, after which the government bears the burden of proving predisposition beyond a reasonable doubt. The jury instruction, which directed the jury to consider predisposition only "If, on the other hand, you find that the government did initiate the offense," imposed an impermissible burden of proof on Cabrera rather than a burden of production. This misstated the legal standard and likely misled the jury. Furthermore, Special Agent Son's testimony that Cabrera was an "experienced" drug dealer was inadmissible under Federal Rule of Evidence 701 as lay opinion. This testimony was not based on reasoning familiar in everyday life but rather on Agent Son's specialized knowledge and experience as a law enforcement officer in narcotics investigations, violating the "specialized knowledge" restriction of Rule 701(c), as articulated in United States v. Garcia. These two errors, considered together, prejudiced Cabrera's sole defense of entrapment. Inducement was vigorously contested with dueling accounts, and the government's evidence of predisposition (eagerness, boasts, extra pills) was considered thin, especially regarding Cabrera's state of mind prior to government contact. Agent Son's testimony, lending authority to the idea that Cabrera was an experienced dealer, was pivotal in undermining the entrapment defense. Therefore, the conviction is vacated, and the case is remanded for a new trial.
Dissenting - Richard J. Sullivan, Circuit Judge
No, the district court's jury instruction was not improper under the newly clarified standard for entrapment, and the admission of Agent Son's testimony was harmless error given the overwhelming evidence of Cabrera’s predisposition. While agreeing with the majority to clarify the "some credible evidence" standard for inducement, the instruction given did not state a burden of proof for inducement and initially directed the jury to consider "whether there is any evidence" of inducement, which is consistent with a burden of production, as previously advised in United States v. Braver. The instruction only allowed the jury to reject the defense if it found "no evidence" of inducement. Even if there were error, it was harmless because the government presented substantial evidence of Cabrera's predisposition. This evidence included Cabrera’s unfettered access to large quantities of drugs, his own recorded boasts of being "not new" to drug dealing and allusions to "old customers," his knowledge of countersurveillance tactics (discrete meetings, changing phones, using codes), and the ease with which he found a supplier. Agent Son's testimony, though improper as expert opinion, was "trivial" in the context of this formidable evidence of predisposition and had no substantial influence on the verdict, as evidenced by the government's limited reliance on it during summation. Jurors could have drawn common-sense inferences about Cabrera's intent from his observed evasive driving maneuvers. Therefore, the conviction should be affirmed.
Analysis:
This case significantly clarifies the defendant's burden for the inducement element of an entrapment defense in the Second Circuit, establishing that it is a burden of production ("some credible evidence") rather than a burden of persuasion (e.g., preponderance). This resolution aims to reduce jury confusion by distinguishing it from the government's burden to prove predisposition beyond a reasonable doubt. It also reinforces the strictures of Federal Rule of Evidence 701, particularly concerning law enforcement officers who attempt to offer opinions based on specialized training and experience without qualifying as an expert. The cumulative effect analysis of instructional and evidentiary errors, especially when a defendant's sole defense is at stake, provides an important standard for appellate review and for district courts to ensure a fair trial process.
