United States v. Hilliard
851 F.3d 768
7th Cir.2017Background
- In 2012 ATF Special Agent Chris Labno, using confidential informant Henry Romano, conducted controlled buys of heroin from Timothy Hilliard (recorded audio/video and surveillance present); a later heroin-for-guns trade and a search of Hilliard’s home yielded additional heroin and a gun.
- Hilliard was indicted on ten counts (multiple §841(a)(1) heroin counts, an 18 U.S.C. §924(c) guns-for-heroin count, and a §922(g) gun-possession count).
- At trial Hilliard asserted entrapment; the jury convicted him on nine counts, deadlocked on one. District court denied motions for acquittal, mistrial, and a new trial; Hilliard was sentenced to 123 months.
- On appeal Hilliard argued (1) improper/speculative testimony by Agent Labno implying uncharged sales to third parties, (2) Labno impermissibly gave expert-style opinion as a lay witness, (3) due-process violations under Brady/Napue based on reference to a report, and (4) erroneous jury instructions on entrapment/predisposition.
- The Seventh Circuit reviewed the trial rulings (mistrial/new-trial denials for abuse of discretion; legal correctness of instructions de novo) and addressed each argument, focusing on whether any error was prejudicial.
Issues
| Issue | Plaintiff's Argument (Hilliard) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1. Whether Labno’s cross-examination testimony that he "believed" surveillance showed other transactions warranted a mistrial/new trial | Labno’s remark was speculative, prejudicial, contradicted prior testimony, and undermined entrapment defense | Answer was responsive to defense questioning, clarified by follow-up, not relied on by government at closing, and harmless | No abuse of discretion; testimony was nonprejudicial/harmless and did not require mistrial or new trial |
| 2. Whether Labno’s testimony crossed Rule 701/702 line into undisclosed expert opinion | Labno used his ATF experience to frame conjecture about other deals, improperly offering expert inference without disclosure | Testimony was lay opinion permissible under Rule 701 (based on investigation reports/observations), and later questioning limited any speculation | Testimony admissible as lay opinion; district court did not abuse discretion in admitting it |
| 3. Brady/Napue claim from Labno’s reference to a report | Reference to an undisclosed report (or misleading use of the disclosed surveillance report) violated due process | The reference was to the disclosed surveillance report; no evidence government withheld other reports; any confusion was cured on cross | No Brady or Napue violation; no knowing presentation of false testimony and no undisclosed material shown |
| 4. Sufficiency and wording of entrapment jury instructions (definition of inducement/predisposition; factors) | District court gave instructions that risked misstating law (omitted "persuade," elevated reluctance factor, included unnecessary government-good-faith instruction) | Instructions tracked Mayfield and correctly separated inducement and predisposition factors; additional instruction accurately stated law and avoided confusion | Instructions legally correct when read together; court properly exercised discretion and any deviations were not prejudicial |
Key Cases Cited
- United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014) (en banc) (clarifies entrapment: inducement requires solicitation plus additional pressure/enticement; defines predisposition factors)
- United States v. Zitt, 714 F.3d 511 (7th Cir. 2013) (responsive testimony invited by defense questioning may be admissible and not grounds for mistrial)
- United States v. Mendiola, 707 F.3d 735 (7th Cir. 2013) (lay witness may offer opinion based on perceptions and review of recordings/reports under Rule 701)
- United States v. Oriedo, 498 F.3d 593 (7th Cir. 2007) (agent’s impressions based on surveillance can be admissible lay testimony; avoid undisclosed expert opinion)
- United States v. Rollins, 544 F.3d 820 (7th Cir. 2008) (agent’s interpretive testimony of coded language admissible under Rule 701 when grounded in perception)
- Napue v. Illinois, 360 U.S. 264 (U.S. 1959) (prosecutor may not knowingly use false testimony)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (government must disclose materially exculpatory evidence)
- Sorrells v. United States, 287 U.S. 435 (U.S. 1932) (seminal entrapment precedent)
- Sherman v. United States, 356 U.S. 369 (U.S. 1958) (entrapment doctrine and role of persuasion)
- United States v. Collins, 604 F.3d 481 (7th Cir. 2010) (standard for mistrial review)
- United States v. Johnson-Dix, 54 F.3d 1295 (7th Cir. 1995) (responses invited by counsel’s questions not automatic basis for mistrial)