19-3363-cr United States v. Cabrera United States Court of Appeals for the Second Circuit AUGUST TERM 2020 No. 19-3363-cr UNITED STATES OF AMERICA, Appellee, v. JOHN E. CABRERA, Defendant-Appellant. ARGUED: SEPTEMBER 15, 2020 DECIDED: SEPTEMBER 8, 2021 Before: JACOBS, LYNCH, SULLIVAN, Circuit Judges. John Cabrera appeals from the judgment of the United States District Court for the Southern District of New York (Failla, J.) convicting him of four counts of distributing and possessing with intent to distribute fentanyl. On appeal, Cabrera argues 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 a special agent’s opinion that Cabrera was an experienced drug dealer. The effect of these two errors was reciprocal. We VACATE and REMAND for a new trial. JUDGE SULLIVAN dissents in the Court’s opinion, and files a dissenting opinion. ____________________ DANIEL HABIB, Federal Defenders of New York, New York, NY, for Defendant-Appellant John Cabrera. DANIELLE R. SASSOON, Assistant United States Attorney (Dominic Gentile, Rebekah Donaleski, Thomas McKay, Assistant United States Attorneys, on the brief), United States Attorney’s Office for the Southern District of New York, New York, NY, for Appellee. DENNIS JACOBS, Circuit Judge: John Cabrera engaged in four drug transactions with his barber, who was a government informant. Cabrera’s sole defense was entrapment, which (as the district court acknowledged) was a close call as to the element of inducement. He appeals chiefly on the grounds that: the charge misstated his burden by requiring the defendant to establish that the government initiated the crime; and that testimony from a special agent, who opined that Cabrera was an 2 experienced drug dealer, was inadmissible as lay opinion under Federal Rule of Evidence 701. Cabrera and his barber gave opposite accounts of who first proposed partnering in the drug trade. It was therefore crucial that the charge accurately state Cabrera’s burden: the slight burden of adducing “some credible” evidence that the government initiated the crime. The charge overstated that burden, effectively requiring that the jury weigh the evidence and definitively accept Cabrera’s account as a precondition to considering predisposition. Compounding the prejudice to Cabrera’s defense, the special agent’s testimony that Cabrera was an “experienced” drug dealer was inadmissible as lay opinion. And it undercut Cabrera’s account of how the transactions with his barber originated, as well as his lack of predisposition to deal. We vacate Cabrera’s conviction and remand for a new trial. I Cabrera is a legal permanent resident who came to New York from the Dominican Republic in 2013, when he was 20. After arriving, Cabrera held 3 several minimum-wage jobs before becoming a carpenter. Around 2014, he met a barber and fellow Dominican immigrant named Marcos. Cabrera’s apartment was located near the barbershop where Marcos worked, and Cabrera began visiting him weekly for a shave and haircut. Marcos had immigrated to the United States in 1992 when he was 17; but in 2001 he was deported after serving a sentence on a …
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