holding that some evidence of government initiation of the crime suffices instead the court imposed a heightened burden requiring the jury to make a finding that correct that the government did initiate the charge drugs  element the district court of midway opinion testimony from a da agent that cabrera was more experience than quote the average drug dealer that testimony was based on specialized knowledge wired in the course of the agents new trial because i ask you mr habib suppose we have a case and this may be one of them where there is clearly some evidence of inducement because the defendant testifies that i was induced and so that's there and the jersey go back in the jury room and they say that fella said he was induced the other witness for the government said he never  brought this up it was a defendant who proposed it i thought juror number one i thought the time was totally lying and then i just absolutely we all agree what is the jury supposed to do then they have to go forward and consider predisposition or can they stop so just to be clear in your honour's hypothetical that jurors are in disagreement about no not in disagreement they agree they are unanimous they all conclude that there was no inducement should they be should we is the right thing for them to do to go ahead and consider predisposition anyway or is it open to them it is indeed what the law requires for them to stop right there no possibility of entrapment because there was no inducement if the jury if the jurors conclude that there's been no evidence no no there wasn't as i think clearly evidence the defendant said he was the government's witness the informer says no i never raised the subject at all until he brought it up and the jury believes decides they believe the government witness do they go forward or do they stop so i think in that situation your honor the jury i think i would put it this way your honor the jury can't and that can be said in that instance you have determined that there has been no credible evidence right exactly and yes the jury can terminate the entrapment inquiry so then was why weren't they instructed correctly that if they don't think that there was inducement it's done because that's that's not the instruction they were given your honor the correct instruction as set forth in a number of this court's cases is that if there is some evidence or credible evidence of inducement and the government agree here that there was in the form of mr caruthers testimony that the jury must then move on to formulation some evidence and credible evidence are equivalent and so any instance where there is uncorroborated testimony with respect to inducement or indeed testimony as to inducement that is contradicted by documentary evidence or a prior inconsistent statement it's open to the jury to make a determination that the evidence it used as not been credible has not carried her but that's not what the district court instruct the jury here the district court imposed a heightened burden here the district court told the jury that it was to consider the predisposition cronk only upon a finding that the government quote did initiate these charged transactions it did so at the government's invitation and it did so because the government told the district that instruction was necessary to heighten the burden of proof above the some evidence tendered that this court's cases have accrued well what that what the judge st said was if you find no evidence of in do smith you stopped but if you find he was induced now that leaves open it seems to me at least if you're mr spock and you're rigorously logical and not like most people that leaves open the interesting question what do you do if there is some evidence introduced of inducement so i don't follow the st part of the instruction i don't stop there but then i'm supposed to apply the nd thing which is was deuced in fact and now i'm in total eck what poise about what i believe and what i don't believe and so that that situation is not explicitly covered by this  instruction it seems to me or maybe that's the situation in which you're saying the jury will read this instruction and say well if i meant completely in ecuador as as to whether there was an inducement then i don't find he was induced and therefore i don't have to consider predisposition notwithstanding that i wasn't told to stop there in that setting no your honor so let me say a few things st of all this this case therefore no evidence and use no just that it's outweighed by the other evidence we choose to believe one person rather than another that's not exactly no evidence or something that's incredible as a matter of law that's just they made a determination that they think he was in fact induced or they don't think he was in fact well so let me say on that point your honor the evidence in this case under this court's decision in martina's carcano was ample to support the jury's consideration of predisposition in martina's carcano as here we have conflicting testimony as to who st proposed the crime and thereafter we have the informant negotiating the terms of payment for the crime and carrying out the plans to commit the crime but on those facts even in martina's carcano a case where this courts of the jury presumably disbelieve the defendant those facts this court said there had been ample evidence of inducement for purposes of the entrapment defense and so that's this case and so because we're in that zone because we're in that intermediate zone where it has been some evidence  may please the court my name is tony also as soon and i represent the united states on appeal as i did i'd like to pick up on judge lynch's questions particularly about a scenario where there is no credible evidence is the equivalent of no evidence at all and that's plainly not the case and that also highlights why the instructor i'm sorry but i understood the argument to be that credible evidence is is is the same as some evidence that is to say you have to bother with something less some members of the jury find it credible correct your honor and that's why some evidence and credible evidence are simply not the same thing as any evidence which is essentially what was requested at the charge conference there was no objection to the omission of some evidence instruction and instead comparer class to the insertion of the word evidence which it would include evidence that is not credible which goes beyond what the law requires well if i believe that if i believe that the evidence is credible haven't i made a finding that there wasn't the guy said it was he was induced and i believe him it was credible now i've made a finding that he was induced to fight in the end of the day after analyzing all the country evidence i conclude that no it wasn't so great a bill after all the other guy was more credible the overwhelming burden he looked like a sort of honest guy but when you really look at all the proof i come to the conclusion that i don't believe them after all i'm just having trouble as they how i find the evidence credible but don't then find by a preponderance of the evidence that what he said the credible person told me is what happened your honor if the jury concludes that the evidence was credible then the inducement problem has been satisfied by guess at the instructions here did not place the jury in acapulco ways as defense counsel just argued because the jury instruction have to be considered as a whole and in addition to the instruction that there are if there is no evidence of  is the beginning of the court's instruction which told the jury that the question before them was whether there was any evidence of inducement that was the question they were told to consider so that clearly defined the choice before the jury as between no evidence and any evidence which is why in fact the instruction that the jury ultimately received was in fact more favorable to compare us because if anything it put the jury in a position where if it included prayer testified as awfully and was  credible that might still constitute any evidence of inducement and therefore they would know about a predisposition but at get the truth i'm sorry well i mean that the judge started out asking the jury to consider when there was any evidence but then but then said that if there's no evidence well that's that's one thing but the alternative to being no evidence is actually making a finding that the government did initiate the the offense and it seems to me that the feeding a big hole in there and and in there is is the prospect that that will that if you only listen the government's position that there's actually no hole because the choice is between no evidence and everything else and that's even clearer in light of the fact that the framing question was whether there was any evidence of inducement masako some suppose some of the jurors thought that there was credible evidence it's not certain but there's some credible evidence and other jurors thought that there really wasn't that they didn't quite believe it why should the government be put to its test to its burden of proving beyond a reasonable doubt that it did not initiate the offense i mean how how difficult should that be for the government to prove beyond a reasonable doubt that it is not of of the crime your honor under these jury instructions it's the government's position that for any juror that concluded that there was credible evidence of an inducement that they would have then moved on to consider the create disposition and that's because they were only told that in the event of no evidence of inducement should they stop entrapment in great in all other events the analysis would move on to create disposition well because that's the alternative to no evidence and because the court said your honor in the context of these jury instructions it's clear that they would then move on to consider predisposition and not conclude the entrapment agree and that's the interpretation the government took a low brow hartson certain things that the government said at the conference but if you look interpret it that finding to be a finding beyond a reasonable doubt which it clearly is not that's not the required based on the instruction as a whole as the court has to interpret it under wilkerson because of the framing with judge feeling that the start the government does not think that it's confusing but in any event there was no objection at the cart at the charging conference to any to the omission of the language of some evidence and perhaps that's because himself recognized that this instruction was more favorable to him than requesting a some evidence instruction and i understand only the failure to object to the omission of the particular language you're now claiming should be there on appeal means that that particular first on appeal cabrera emphasizes this idea that his burden is relatively slight with respect to inducement now that quote is from this circuit's decision in mayo and it's been repeated several times and other cases and it actually has very little to do with the quantum of proof for him to submit what the court has said is that the defendant's burden is relatively slight on adjustment because he does not have to show that the government pressured the defendant coerced the defendant forced  not a hollow requirement that it is by a preponderance of the evidence and that it is more than just evidence it has to be credible evidence and so what her prayer asked the court to insert actually would have been an inaccurate statement of the law if all the court put in was evidence that the government did initiate and so for that reason because the request not accurately reflect the law this is some evidence argument on appeal is forfeited and has to be reviewed plain error there's no decision in the circuit that has found error with the type of instruction the touch they look gave to the jury and as i've argued if instruction is in fact more favorable in certain ways then some evidence instruction which i could ask you miss  assent about the other issue briefly before you go how can it be that testimony that says not just i thought there was a vase of driving and i can see that as being a now i guess to i thought the man was intoxicated or i saw a drunk on the streets it's an opinion derived from more specific observations but that seems like lay opinion to me but to go beyond that and say you know most drug dealers don't do that which came as something of a surprise to me because i've seen so many cases where officers say this fellow was engaging and you base of driving and that gives us reasonable suspicion or supports probable cause or something but past whether it's accurate how can it be that to go and say in my experience drug drug dealers don't do that except the experienced ones and i conclude from this that he was sort of better than average drug dealer in a case where we're talking about this narrowly balanced issue of predisposition st of all how is that not iranians to admit that testimony and secondly why shouldn't we think that's prejudicial  case to have an officer say effectively i'm a i'm a dea agent i know drug dealers and this guy looked to me like an experienced drug dealer yes you are so i think the real this letter has really expert testimony because it was based on special i think knowledge and then also well that's one of that's one of the issues that might not even be legitimate expert testimony to the extent that it goes so far as to say i think the guy parties or goes to the ultimate issue if it satisfies the other requirements of the rule and it's helpful to the charity here i'd like some of the cases where this circuit has concluded there was an improper opinion about the ultimate issue it was not based on the overall investigation or hearsay from confidential informants it was based on the agent's personal perceptions and it was really limited to that experience with respect to counter surveillance techniques and what he  that well with this fear acceptable testimony if it didn't come from a dea agent that just came from an observer on the street the random bypass or who volunteers the testimony to the government that i watched this guy driving he was doing all derives from a witness's experience by virtue of his position in a business or some other experience that he had that's permissible and that's distinct from specialized knowledge so for example you can have a lay  n lay person testify about the fact that a substance appear to be cocaine if he was embedded in a drug organization for ten years the average juror has not been in a drug organization for ten years but the reasoning process is one that is for milly or to a juror that an average juror could become capable of doing if that juror spent ten years in a drug organization so if you have a lay witness who for some reason has had five years of experience  observing cars that's a reasoning process that would be evident to a jury even if that juror has not engaged in that process and could that person say i live in a neighborhood with a lot of drug dealers and i know drug dealers this guy was behaving like a drug dealer the conduct aligned with what i routinely observed i think that's more similar to our case and so you have the example of the drug organization you have example in the thornhill case where someone who had been in the army was allowed to testify as a lay person a the type of gun that's distinct from haines which is which prayer relies on where you have a border agent who testified about how a fuel tank works i could stay at the border for five months and i still can tell you how a fuel tank works but counter surveillance techniques that's a much more accessible reasoning process to a jury and that's what the distinction between the leg and expert opinion is really getting i'm also happy to address for the court why the wrong no your honor the the defense was at that that cabrera had never engaged in any drug transaction prior to being approached by marks as judge one has has correctly observed the agents testimony is credited by the jury was a sufficient basis to find that cabrera was predisposed and to reject his entrapment defense and that's just what the government urged the jury to do and some nation told the jury that sana testified that cabrera engaged in sophisticated counter surveillance techniques of a sophisticated drug dealer that both opined directly uncompressed guilt and it rested on the agent's specialized knowledge for the simple reason that the agent could only have have compared cabrera to the average drug dealer by drawing on to experience in other drug investigations that's why his opinion rests on his specialized knowledge because a lay person i'm sorry not a possibly compare this driver with drugs for almost a month with mr marco's and he's concerned that he's under surveillance so i mean it would seem that the testimony then of the aid been not really worth much activity might be an opinion from the case agent who is responsible for walking the jury through the bulk of this group in this case an opinion from that case agent that based on his experience on which the government asked him to drop not only was cabrera engaged in counter surveillance activities but that these activities events his experience these are via the average drug dealer in the drug trade and that testimony is accepted as the government urged the jury to do would suffice to establish predisposition and speak in tracking anybody engaged in a drug transaction might be concerned about detection but it's quite another thing to hear that he's a more experienced than average he was savvier than average he was sophisticated in the government's words i've if i may just one minute on the unless there are other questions on the evidentiary issue if i may say one thing about the instructional issue first this claim is preserved s t a three the defense told judge dalla that there just has to be quote some evidence and under this court's decision in haasan no more is required to avoid planar review on the merits of the instruction judge jacobs you have it right there is a whole but because of the posture in which this preserved claims comes to this court it's the government's burden to demonstrate harmlessness beyond a reasonable or in fact would have taken the off ramp urged by the government that doubt must be reserved in cabrera's favor finally and again at the risk of repetition the government argued for this charge below and  cabrera's counterproposal for the express purpose of heightening the standard of proof above some evidence the government said that's not the standard a finding is now required and that's simply not this court's law so i take judge sullivan's point that the instruction may even be susceptible to a more damaging construction from compare from cabrera's vantage point the jury may indeed have interpreted the instruction to require a decisive finding refinding beyond a this instruction and in particular what to do in the whole or in the position of echo poise where this case likely lies the government can't satisfy its burden here all right well thank you both well argued will reserve decision