Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial

In United States v. Cabrera, No. 19-3363 (2d Cir. Sept. 8, 2021), the panel majority holds that the jury in a criminal prosecution should not have heard officer testimony that the defendant, “unlike the ‘average drug dealer,’ appeared to be ‘experienced’ because he had employed countersurveillance driving techniques (which consisted of really bad driving).” The panel holds that the opinion testimony, combined with an instructional error, deprived the defendant of a fair trial.

The defendant Cabrera was charged with distributing fentanyl. The main witness was Cabrera’s partner, named Marcos, who was a paid informant for the Drug Enforcement Administration (DEA). Cabrera argued an entrapment defense at trial: “Marcos asked [Cabrera] several times during barbershop visits to supply drugs; Cabrera refused, telling Marcos he already made sufficient money as a carpenter. But Marcos renewed his invitation approximately five or six times until, in early 2017, Cabrera relented, having become desperate after losing his job, girlfriend, and apartment–and confiding his problems to Marcos.” Marcos testified that Cabrera was an experienced drug dealer who used Marcus to locate a buyer.

In relevant part, “Special Agent Daniel Son, who had surveilled Cabrera at the September 21 and 27 deals,” testified in rebuttal that “Cabrera, unlike the ‘average drug dealer,’ appeared to be ‘experienced’ because he had employed countersurveillance driving techniques (which consisted of really bad driving).” This included “[e]xcessively speeding, [making] erratic lane changes, making U turns and then making another U-turn, those types of maneuvers.” Agent Son elaborated in his rebuttal testimony:

“Q. In your experience was it unusual to see someone engaged in a drug transaction doing this?

“A. Yes. It’s unusual.

“Q. And why was that?

“A. The average drug dealer does not know that they’re being followed. They’re [sic] don’t do those type of techniques.

“Q. And based on what you saw, those–from those countersurveillance techniques, what conclusion did you draw?

“A. That the defendant was experienced to know that he knows some of our law enforcement techniques and to deploy those countersurveillance techniques, to lose us or lose the tail.”

In support of his opinion, Agent Son cited his extensive experience conducting narcotics investigations.

After a six-day trial, the jury convicted Cabrera and he was sentenced to 48 months’ imprisonment.

The panel majority vacates the conviction and remands.

First, faced with an intra-circuit split of authority about the federal entrapment defense, the panel majority cleans up the court’s prior inconsistencies.  “The affirmative defense of entrapment consists of ‘two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct’” (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). There was divergent language in prior decisions about the defendant’s burden to establish inducement. The panel holds, henceforth, “that the defendant has the burden to produce ‘some credible’ evidence—but need not prove by a preponderance of the evidence—that the government induced him to commit the crime.” The panel majority finds that the jury charge at Cabrera’s trial was inconsistent with this freshly established burden and warrants a new trial.

The panel majority also holds that this instructional error was compounded by the judge allowing the agent to testify that the defendant must be an experienced drug dealer based on the way he drove evasively. Agent Son testified that he believed Cabrera was an “experienced” drug dealer, a form of lay opinion offered under Fed. R. Evid. 701. “Agent Son drew upon his specialized knowledge and experience as a DEA detective to infer that Cabrera was more experienced than your average drug dealer. That is, Cabrera had done this frequently—testimony that, not coincidentally, had obvious bearing on Cabrera’s entrapment defense. Agent Son’s opinion did not relate events, or describe Cabrera’s atypical driving patterns, or contextualize the relationship between Cabrera and Marcos . . . . It was therefore an abuse of discretion to admit his testimony as lay opinion under Rule 701.”

“Agent Son . . . reached his opinion through an opaque, intuitive process grounded in some kind of specialized knowledge as to how your average drug dealer typically behaves compared to a drug dealer who is experienced. A lay person is unfamiliar with law enforcement surveillance techniques and incapable of inferring that a suspect’s driving maneuvers evince (1) experience with evading those techniques and, consequently, (2) experience dealing drugs. A juror might as easily ascribe those maneuvers to watching the movies, or to a paranoia born of inexperience.”

The panel majority also finds admission of the agent’s opinion testimony not harmless beyond a reasonable doubt. “Given how thin was the government’s case, Agent Son’s testimony was pivotal. By definition, an experienced drug dealer is predisposed. Without his testimony, the government’s evidence clearly establishes only that Marcos was Cabrera’s customer, not ‘that [Cabrera] himself was in the trade [of selling narcotics].’”

Judge Sullivan dissents, finding that the instructional error (if any) and the admission of the agent’s testimony—while possibly an abuse of discretion—were harmless due to what he perceived as overwhelming evidence of the defendant’s guilt.

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