United States v. Cabrera, No. 19-3363 (2d Cir. 2021)
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Cabrera engaged in four drug transactions with his barber. Cabrera’s sole defense was entrapment. Cabrera and his barber gave opposite accounts of who first proposed partnering in the drug trade. The barber was receiving deferrals of removal while serving as a paid DEA informant. Special Agent Son, who had surveilled Cabrera at two deals, also testified, stating that Cabrera, unlike the “average drug dealer,” appeared to be “experienced” because he had employed counter-surveillance driving techniques (which consisted of really bad driving).
The Second Circuit vacated Cabrera’s convictions and remanded for a new trial. Because of the differing versions of who initiated the drug transactions, it was 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 undercut Cabrera’s account of how the transactions with his barber originated, as well as his lack of predisposition to deal.
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