September, 2021

New Jersey: Defendants Had
Reasonable Expectation of Privacy in
Stationhouse Phone Conversation Absent
Fair Notice of Monitoring or Recording

Defendant was charged with firearms offenses based, in part, on the contents of a phone conversation he had with his co-defendant from one of the police station’s landlines where defendant was not told that his conversation would be recorded or accessible to law enforcement without his consent or a warrant. The New Jersey Supreme Court held that defendants had a reasonable expectation of privacy in their conversation in the absence of fair notice that their conversation would be monitored or recorded. Because the recorded stationhouse telephone conversation was not seized pursuant to a warrant, consent, or any justifiable exigency, it should have been suppressed. New Jersey v. McQueen, ___ A.3d ___ (08-10-2021, WL 3502000).

First Circuit: New Trial Ordered Where
District Court Committed Plain Error
When It Failed to Give
Entrapment Instruction

Defendant was convicted by a jury of attempted enticement of a minor for unlawful sexual activity after he was apprehended through a sting operation in which a government agent created a profile on an adults-only dating application posing as a gay adult man and, after being contacted by defendant, then offered to arrange a sexual encounter with him and his minor “boyfriend.” The First Circuit ordered a new trial holding that the improper inducement element of the entrapment defense was supported by evidence that the agent linked the opportunity for adult sexual activity, which was the lawful objective of the application users, with unlawful sexual activity involving a minor and then repeatedly stated that the encounter would be a positive experience for the minor. The Court further held that the record provided at least some evidence of a lack of predisposition to entice minors to engage in unlawful sexual activity where the government first suggested the sexual abuse of the minor, the dating application was intended to be used only by adults, defendant’s insistence on meeting the adult first could be read as a sign of reluctance, and defendant’s messages could suggest he was motivated by sexual interest in the adult. United States v. Perez-Rodriguez, ___ F.4th ___ (CA 1, 09-02-2021, WL 3928896).

Second Circuit: New Trial Ordered Where
District Court Gave Erroneous
Entrapment Instruction and Allowed
DEA Agent to Give Lay Opinion Testimony

Defendant was convicted by a jury of drug offenses at a trial where he asserted an entrapment defense. The Second Circuit remanded for a new trial holding that the entrapment instruction misstated defendant’s burden by requiring him to establish that the government initiated the crime. The Court held that 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 further held that testimony from a DEA agent, who opined that defendant was an experienced drug dealer based on defendant’s use of countersurveillance driving techniques, was inadmissible as lay opinion under Federal Rule of Evidence 701 where it was based on the agent's specialized knowledge and experience. The Court found that these errors were not harmless where the inducement element of entrapment was vigorously contested at trial, a properly instructed jury could easily have found “some credible evidence” of inducement, and the agent’s testimony reinforced the prejudicial effect of instructional error because an experienced drug dealer, by definition, was predisposed. United States v. Cabrera, ___ F.4th ___ (CA 2, 09-08-2021, WL 4073056).

Hawaii: New Trial Ordered Where
Trial Court Required Expert Testimony for
Admission of BAC Level in Support of
Self-Defense Claim

Defendant was convicted of assault at a trial where he asserted that he acted in self-defense and the trial court ruled that he could not present evidence of the victim’s .252 blood alcohol concentration (BAC) level unless he called an expert to explain its meaning. The Hawaii Supreme Court reversed holding that the BAC was highly probative where it would aid the jury’s determination as to who was more likely the aggressor and would help corroborate defendant’s testimony. The Court found that expert testimony about the victim’s BAC was unnecessary because BAC levels and the association between excessive alcohol consumption and aggression are within the common knowledge and experience of ordinary jurors and that the probative value of the BAC level was not substantially outweighed by risk of confusing the jury or unduly prejudicing the State where the jury had heard about the victim’s prior intoxicated, aggressive state. The ruling violated defendant’s due process right to present a complete defense. State v. David, _¬__ P.3d ___ (09-09-2021, WL 4099243).