United States v. Cabrera (2nd Cir. September 2021)

The Federal Docket

September 27, 2021

Jury Instructions/Entrapment – To obtain an instruction on entrapment, a defendant need only adduce “some credible” evidence that the Government induced his conduct rather than fully “establish” government inducement.

Evidence/Witness Testimony – A law enforcement agent may not testify that a defendant is an experienced drug dealer without being tendered as an expert.

After a jury trial, John Cabrera was convicted of four counts of distributing and possessing with intent to distribute fentanyl under 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). On appeal, Cabrera argued first that an agent should not have been allowed to testify that he was an experienced drug dealer, and, second, that a jury charge—which said that the defendant must “establish” that the government initiated the crime—misstated the burden for the inducement element of his entrapment defense.

Reviewing the jury charge de novo and the admission of the agent’s testimony for an abuse of discretion, the Second Circuit agreed with Cabrera on both claims. The jury instruction was erroneous as it misled the jury on the law. Cabrera’s actual burden was merely to adduce “some credible” evidence that the government initiated the crime, not to fully establish it. The agent’s testimony was inadmissible under FRE Rule 701 because he spoke as to specialized knowledge without being tendered as an expert.

These two errors compounded one another and created prejudicial error. The court thus vacated Cabrera’s convictions and remanded.

Judge Sullivan dissented, finding the jury instruction not to be error when viewed in a broader context and the testimony to be harmless in light of other overwhelming evidence of guilt.

Appeal from the Southern District of New York
Opinion by Jacobs, joined by Lynch
Dissent by Sullivan

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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