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Second Circuit Announces Defendant Need Only Produce ‘Some Credible’ Evidence for Jury Instruction on Entrapment Defense, Clarifying It’s a Burden of Production, Not Persuasion

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit announced that for purposes of the defense of entrapment, the defendant has the burden to produce some “credible evidence” that the government induced him to commit the crime.

John E. Cabrera was charged with two counts each of distributing fentanyl and possessing with intent to distribute fentanyl stemming from drug sales to his barber named Marcos. Years earlier, Marcos had been convicted of drug offenses and deported. He reentered the U.S. illegally and began working as an informant for the Drug Enforcement Agency (“DEA”). Marcos received cash payments and deportation deferrals as long as he continued to supply the DEA with information about drug dealers.

At the jury trial, Cabrera claimed entrapment. He testified that Marcos approached him about supplying him with fentanyl for resale. Cabrera testified he refused Marcos’ request. But Marcos persisted in his requests for several months, and Cabrera steadfastly refused. But after Cabrera lost his job, he agreed to find a supplier for Marcos and act as the middleman.

Marcos testified it was Cabrera who initiated discussions about supplying him with the fentanyl. Additionally, Special Agent Daniel Son opined that based on his experience conducting narcotics investigations, Cabrera was unlike the “average drug dealer” but appeared to be “experienced” because he had employed countersurveillance driving techniques.

After the jury convicted Cabrera, he appealed, arguing (1) the jury instruction misstated the burden on the inducement element of his entrapment defense, and (2) the U.S. District Court for the Southern District of New York abused its discretion by admitting Son’s opinion testimony.

The Court observed that “[t]he affirmative defense of entrapment consists of ‘two related elements: government inducement of the crime, and lack of predisposition on the part of the defendant to engage in the criminal conduct.’” Mathews v. United States, 485 U.S. 58 (1988). “[W]hen a defendant has presented credible evidence of inducement by a government agent, the government has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime.” United States v. Flores, 945 F.3d 687 (2d Cir. 2019) (citing Jacobson v. United States, 503 U.S. 540 (1992)).

Inducement occur when the Government has “initiated the crime.” United States v. Brand, 467 F.3d 179 (2d Cir. 2006). Broadly speaking, inducement includes “soliciting, proposing, initiating, broaching or suggesting the commission of the offence charged.” United States v. Sherman, 200 F.2d 880 (2d Cir. 1952).

The Court explained that it has “long held that the jury instruction on inducement should not specify a burden of proof; it should require only ‘some’ or ‘credible’ evidence the government initiated the crime.” United States v. Braver, 450 F.2d 799 (2d Cir. 1971). However, the Court acknowledged that it has also characterized the defendant’s burden to establish inducement as a burden of proof by a preponderance. United States v. Williams, 23 F.3d 629 (2d Cir. 1994). The Court now conceded that the “preponderance” burden is inconsistent with the jury instructions it has endorsed. In addition, the Court recognized that it has sometimes “conflated the defendant’s burden to obtain an entrapment charge with the defendant’s burden at trial.”

Because of the admittedly inconsistent and confusing case law that has developed regarding entrapment, the Court declared that reconsideration of the burden defendant bears at trial and the appropriate jury instruction to go with it are required. Consequently, the Court announced: “We hold 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 Court explained that this instruction eliminates conflicting language in the case law and notifies the jury that it need not consider or credit unworthy evidence. It instructed that “some credible” evidence means the defendant simply has a “burden of production,” not persuasion, to be entitled to a jury instruction on the affirmative defense of entrapment.

The Court stated that the fundamental question for all claims of entrapment is whether the defendant was “ready and willing to commit the offense if given the opportunity to do so.” United States v. Martinez-Carcano, 557 F.2d 966 (2d Cir. 1977). That is, “[p]redisposition—not inducement—is the ‘principal element’ of entrapment.” Mathews. Inducement is merely the threshold inquiry for whether “the defense of entrapment is at issue.” Jacobson. Once the defendant meets his burden of production, the Government is then required to justify its conduct, United States v. Henry, 417 F.2d 267 (2d Cir. 1969), and prove “beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson.

In the instant case, the Court determined that the instruction did not inform the jury to determine if there was “some credible evidence” of inducement. Instead, the instruction implied that the jury could not consider the entrapment defense unless it found the Government “did initiate” the crime. And the instruction was worded in such a manner that suggested Cabrera was required to satisfy some burden of proof. This was legal error, the Court ruled.

The Court also determined that the district court abused its discretion by admitting Son’s testimony as lay opinion.

Thus, the Court ruled that the errors regarding the jury instruction together with the improperly admitted testimony prejudiced Cabrera’s entrapment defense, which was the only defense he had.

Accordingly, the Court vacated Cabrera’s convictions and remanded for a new trial. See: United States v. Cabrera, 13 F.4th 140 (2d Cir. 2021). 

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Related legal case

United States v. Cabrera



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