In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1249
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TIMOTHY HILLIARD,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 970 — James B. Zagel, Judge.
____________________
ARGUED FEBRUARY 16, 2017 — DECIDED MARCH 24, 2017
____________________
Before FLAUM, MANION, and KANNE, Circuit Judges.
FLAUM, Circuit Judge. Following a sting operation, Timothy
Hilliard was charged with ten counts relating to numerous
controlled sales of heroin, a heroin‐for‐guns trade, and a gun
and heroin found during the execution of a search warrant at
his home. At trial, Hilliard asserted an entrapment defense;
the jury ultimately found Hilliard guilty on nine of the ten
counts but was unable to reach a verdict on the first count.
Hilliard now appeals, asking that we vacate his conviction
2 No. 16‐1249
and sentence and remand for a new trial on the basis of alleg‐
edly inappropriate testimony by a government witness at
trial, as well as inadequate jury instructions on entrapment.
For the reasons that follow, we affirm.
I. Background
In 2012, Special Agent Chris Labno of the Bureau of Alco‐
hol, Tobacco, and Firearms (“ATF”) and confidential inform‐
ant Henry “Hank” Romano1 made six controlled purchases of
heroin from Hilliard. Romano and Hilliard had been friends
for several years prior to the investigation, and had used and
distributed cocaine together in the 1990s. Romano had intro‐
duced Labno, who was undercover as Romano’s “cousin,” to
Hilliard. Prior to each transaction, Labno gave Romano an au‐
dio‐ or video‐recording device to wear, and surveillance offic‐
ers were always present.2 Labno and Romano also recorded
some additional meetings with Hilliard. In December 2012,
after Hilliard traded a significant quantity of heroin for eight
guns and a sum of cash, Hilliard was arrested. Shortly there‐
after, law‐enforcement officials recovered additional heroin
1 When the investigation of Hilliard began in 2012, Romano had already
pleaded guilty to a narcotics offense, and had been sentenced to nine
months’ imprisonment, based on his cooperation in other, unrelated cases.
(Romano had at that point been cooperating with the government for sev‐
eral years and had provided information in approximately three other
cases.)
2 Romano had also been given a personal recording device that he could
use to record telephone conversations or other meetings with Hilliard. Ro‐
mano could turn this device on or off. Labno had instructed Romano to
record his criminal conversations with Hilliard, but not every pertinent
discussion was recorded because it was sometimes impractical (e.g., if Ro‐
mano had an unexpected contact with Hilliard).
No. 16‐1249 3
and a gun from Hilliard’s residence during the execution of a
search warrant.
Based on the above, Hilliard was charged in a ten‐count
indictment. The controlled purchases of heroin were charged
in Counts One through Seven as violations of 21 U.S.C.
§ 841(a)(1). The heroin‐for‐guns trade was charged in Count
Eight as a violation of 18 U.S.C. § 924(c). Hilliard’s possession
of the heroin and gun recovered during the search warrant
were respectively charged in Count Nine as a violation of
21 U.S.C. § 841(a)(1) and in Count Ten as a violation of
18 U.S.C. § 922(g).
A. Hilliard’s Trial
The parties stipulated at the start of trial that Hilliard’s
criminal history included two prior convictions: (1) a 1997
conviction in Tennessee for delivery of cocaine, and (2) a 2002
conviction in Illinois for possession of a controlled substance.
Three ATF agents testified at trial. ATF Special Agent
Andy Karceski had not been personally involved in Hilliard’s
investigation or case, and testified as an expert in drug traf‐
ficking on topics including: the typical quantities of heroin in‐
volved in personal use and distribution, the manner in which
heroin is purchased and sold throughout the typical distribu‐
tion chain, and drug dealers’ tactics to evade law‐enforcement
detection (e.g., using coded words and having legitimate day
jobs). Agent Karceski also explained that law‐enforcement
agents commonly use informants to secure introductions to
wholesale drug traffickers, who otherwise would be leery
about selling narcotics to new customers. He testified that
law‐enforcement officials monitor informants as closely as
possible, often using recording devices or debriefs, but that it
4 No. 16‐1249
is not feasible to record or write reports on every conversation
or interaction involving informants.
During Agent Labno’s testimony about his work on the
case, the government published the recordings made of Hilli‐
ard during the investigation,3 and Labno explained his under‐
standing of the conversations. For example, during the con‐
trolled purchase that took place on April 5, 2012, Hilliard had
mentioned his customers: “[L]ast time I had some, some off‐
white shit …, the tooters likin’ it but the shooters didn’t.”
Agent Labno had understood Hilliard to be referring to his
customers’ responses to a prior batch of heroin.
On May 22, 2012, Agent Labno and Romano had met with
Hilliard at a bar in Evanston to discuss the exchange of guns
for heroin. During that meeting, Hilliard had explained how
to run a drug business:
Well, just gonna give you a little lesson in, since
you, you know, you fuckin’ around. Only fuck
with the people you fuck with cause when you
go out, you fuck with other motha fuckers, you
put yourself at risk, first of all … . Second of all,
you never know the quality … .
Agent Labno had understood Hilliard to be trying to teach
Labno about dealing only with trusted suppliers because of
the risks that could arise from shopping around. Hilliard had
continued:
Get caught up … . I learned the hard way, when
my guys don’t have shit dude, I’ll sit … .I’ll
3 Hilliard stipulated to the observations of the surveillance officer at each
purchase.
No. 16‐1249 5
wait … .Never let motha fuckers rush you,
man … .That’s how you get … fucked up,
bro … . I mean, the guys I’m fuckin’ with dude,
pretty, pretty nice, pretty, respectful loyal,
motha fuckers are business men [sic], you know
what I’m sayin’ … . [N]ot all money ain’t good
money, man.
Agent Labno explained that he had understood Hilliard to be
saying that when his regular supplier was out of heroin, Hil‐
liard would simply wait until his trusted supplier was ready
rather than looking for another source.
Hilliard had further explained to Agent Labno the im‐
portance of controlling addicted customers:
[Y]ou’re playin’ with opium dude, you’re
dealin’ with a different product then. When
you’re dealin’ with highly, cause they need it,
cause the[y’re] sick … .But that’s why you al‐
ways gotta fuckin’, you gotta, you gotta know
how to run your shit. Keep the number, change
it on the[ir] motha fuckin ass, man … . [Y]ou in
control, bro, but if you start lettin’ them motha
fuckers control you, dog … [y]ou’re in fuckin’
trouble man … .
Hilliard had also discussed interactions with law‐enforce‐
ment officials: “Once they’re onto you dude, you gotta
stop … .(unintelligible) [H]ey, anybody say somethin’ ‘bout
me and I hear, I see the police, nuh, I don’t sell shit … .That’s
how I do it, cause they gonna watch you, you know what I’m
6 No. 16‐1249
sayin’.” Agent Labno had understood this to mean that Hilli‐
ard would stop selling drugs as soon as he believed he was
on the radar of law‐enforcement officers.
Further, in a recording from the day of his arrest, Hilliard
had referenced his prior conviction in Tennessee and the les‐
sons he had learned from it:
The only thing about Indiana, or talkin’ like ru‐
ral uh, states. You get caught, you, they gonna
hide you … .You won’t see [daylight] … .You
see what happened to me in Tennessee [refer‐
ring to 1997 conviction] … .Yeah, you, you can
ball, you can ball til you fall but if you get
caught, that’s it … .You gotta remember in Ten‐
nessee though, informants get paid, crackheads
get paid to snitch … .The only thing good about
here is, you know what I’m sayin’, in other
states, you know, they can’t do that entrapment
shit here, you, you will beat that shit. But them
other states, that entrapment shit is, they can do
it all day. They can like actually set you up, you
will still get fucked up. Here, you will beat that
shit like a motha fucker.
Agent Labno had understood Hilliard to be discussing (iron‐
ically enough) a mistaken impression that Illinois law‐en‐
forcement officers could not employ sting operations to arrest
targets.
On cross‐examination, Hilliard’s defense counsel empha‐
sized Hilliard’s and Romano’s long friendship and the fact
that Agent Labno did not know what had been said between
No. 16‐1249 7
Hilliard and Romano in unrecorded conversations either out‐
side Labno’s presence or prior to the start of the investigation.
Agent Labno acknowledged that he was not aware of Hilli‐
ard’s having sold drugs between 2007 and 2011, even though
Romano had been cooperating with the government since
2007.
Defense counsel also asked Agent Labno about uncharged
drug transactions—that is, whether there was evidence that
Hilliard had sold drugs to anyone other than Romano and
Labno:
Q: … Do you have any evidence of any
other drug deals from my client to any‐
one besides the government?
A: I don’t—we were unable to, no.
Q: There was no video or any surveillance
of my client selling heroin to anybody
else, true?
A: That’s correct.
Defense counsel later returned to the topic of uncharged drug
dealing by Hilliard:
Q: All right. In other words, there’s a possi‐
ble, at least on May 31st of 2012 [the date
of a controlled purchase of heroin by the
informant and Agent Labno], that you
were his only customer?
A: That’s not my understanding, sir.
Q: Oh, I know it’s not your understanding.
I asked you whether it was possible.
8 No. 16‐1249
A: Again, anything is possible, but based—
if you’re asking what I believe to be the
case—
Q: Don’t want your opinion.
A: Everything is possible, sir, yes.
Q: I’m not asking for your opinion. But as
you sit here today, on May 31st, 2012,
you have any facts, any evidence that Mr.
Hilliard was selling to anybody but Mr.
Romano?
A: Yes, I do.
Q: Tell me.
A: Based on the conversations that he was
having with me, the details he was ex‐
plaining to me, the way he was teaching
me to be what he considered a better
businessman, a better drug dealer, he
talked about selling to other people, he
talked about the things he did, he talked
about how he operated.
Q: All right. Well, he could’ve been reaching
back in his experience from 2001 when he
was dealing cocaine. It’s not that hard to
talk with a drug dealer, someone who’s
been in the business, is it?
A: Well, that’s correct, but cocaine is differ‐
ent than heroin.
Q: That’s all I’m asking, yes or no. But you
conducted some surveillance during
No. 16‐1249 9
these 9 months. Every time you did a
deal, you had cars conducting surveil‐
lance out there, true?
A: Yes; that’s correct.
Q: Did you follow him from his home to the
meet and back to his home, true?
A: That’s correct.
Q: You never saw him drive anywhere else
to make a delivery of heroin, did you?
A: I believe we followed him on occasion
where we did meet him and we believed
he was doing a transaction but we
weren’t able to identify anybody in‐
volved.
Q: That’s a maybe because I never saw a re‐
port—
[ASSISTANT U.S. ATTORNEY]: Objec‐
tion.
COURT: The objection is sustained.
Q: Well, could you indicate the report that
you documented that?
A: It wouldn’t be my report. I wouldn’t be
out there because, as the undercover
agent, I wouldn’t be expected or wanted
to be covering surveillance deals because
if Mr. Hilliard would see me, it would
be—
Q: So it’s not in a report?
10 No. 16‐1249
A: No, sir, it is in the report. My under‐
standing is, it’s just not in a report that I
authored. It was in a report that another
agent authored. I believe, in fact, it was
listed as part of one of the stipulations as
well.
Defense counsel asked for a sidebar, which was not tran‐
scribed.4 Following the sidebar, no testimony was stricken
and no additional objections were noted. Defense counsel
continued examining Agent Labno about his basis for believ‐
ing that Hilliard had engaged in an uncharged drug transac‐
tion on a particular date (September 18, 2012):
Q: You’re referring to stipulation number
15, I believe, where it says: “ … at ap‐
proximately 6:30 p.m. defendant Timo‐
thy Hilliard was parked in a Buick in the
area of 8025 Keating Avenue, Skokie, Il‐
linois and talking on his cell phone.”
A: Yes, sir.
Q: “[A] short time later he drove, his Buick
was parked in a lot behind the building
at 8025 Keating.” Right?
A: Yes, sir.
Q: And that’s where you’re basing that
there might’ve been another deal?
4 Hilliard’s motion for a new trial indicated that defense counsel moved
for a mistrial at this time, which the court eventually denied, without prej‐
udice.
No. 16‐1249 11
A: Yes. As I said, we weren’t able to identify
anything specific or any people involved.
Q: I’m not asking for your opinion. I’m ask‐
ing, did you see him get out of the car or
they saw him get out of the car and de‐
liver a package to anybody? It’s not in—
A: No, sir.
During redirect, the government did not elicit any testi‐
mony from Agent Labno regarding drug dealing by Hilliard
involving customers other than the informant.
ATF Special Agent Rene Marano also testified for the gov‐
ernment. He had assisted with the execution of the search
warrant at Hilliard’s home on the evening of Hilliard’s arrest.
Agent Marano testified that, in addition to the handgun and
heroin that were recovered, he had also found a substantial
amount of ammunition, a total of $1,940 in cash, a scale, sev‐
eral plastic baggies, gloves, and a mask at Hilliard’s home.
At the conclusion of the government’s case‐in‐chief, Hilli‐
ard moved for a judgment of acquittal, which was denied. He
also moved for a mistrial based on “various opinions” that
Agent Labno had allegedly “volunteered from the witness
stand,” including his “testimony regarding other drug deals.”
The government responded that “some of counsel’s questions
asked for those opinions,” and noted that defense counsel
never moved to strike any of Agent Labno’s answers. The dis‐
trict court denied the motion for mistrial without prejudice,
stating: “I could not, with any degree of clarity, find grounds
for a mistrial, but if there’s a defense, the context may make a
difference which is why I’m denying it now to be raised later.”
12 No. 16‐1249
Hilliard testified at trial in his own defense. He spoke
about his and Romano’s long friendship and admitted that
they had sold cocaine together in the late 1990s. However,
Hilliard testified that he had not been involved in selling her‐
oin or guns at that time, and that he had later turned his life
around, stopped selling drugs, obtained a commercial
driver’s license, and begun working as a truck driver at Tri‐
Air. Hilliard said that Romano had continued to deal ecstasy,
cocaine, guns, and steroids, but they had remained friends
and Romano had attended Hilliard’s wedding in 2007.
Hilliard testified that from 2007 onward, he would occa‐
sionally run into Romano at the gym or elsewhere, and that
each time, Romano would ask about the prospect of obtaining
cocaine and Hilliard would respond that he was no longer
dealing drugs. In 2010, Hilliard had gotten divorced and had
moved back into his mother’s house, and he testified that his
financial status had declined. Hilliard said that he felt in‐
creased financial pressure in 2012, when his eldest child had
moved in with him. He testified that during this time, Ro‐
mano had continued to ask about obtaining cocaine, had tried
to pressure Hilliard to start selling drugs again, and had often
commented on Hilliard’s worsening financial state.
Hilliard explained that in January 2012, he had changed
his mind about selling drugs, because he had needed money
to support his mother and children. Hilliard said that at that
point, he had told Romano that he knew only heroin suppli‐
ers, not cocaine suppliers. Although Romano first said he did
not know anything about heroin, about two weeks later he
expressed an interest. Hilliard had then arranged to obtain
heroin from the mother of his son, who had become an addict.
Hilliard explained that his early drug‐related conversations
No. 16‐1249 13
with Romano had occurred prior to Romano’s first debriefing
with ATF agents about Hilliard in March 2012, and that from
March to December 2012, Hilliard and Romano had had a
number of unrecorded conversations without Agent Labno at
Hilliard’s house, the gym, or a bar.
Hilliard testified that he never would have sold heroin but
for Romano’s persistence, and that Hilliard had never sold to
anyone besides Romano and undercover Agent Labno. Hilli‐
ard also said that the idea of trading guns for heroin had come
from Romano. Hilliard claimed that the reason he had
sounded so knowledgeable about drug trafficking and guns
during recorded conversations was because Romano had in‐
structed Hilliard to impress Labno, and that Hilliard had
based what he had told Labno about drug dealing on Hilli‐
ard’s experience dealing cocaine years earlier.
On cross‐examination, Hilliard said that it was only due
to his financial circumstances that he had caved into selling
drugs again, but admitted that there was no discussion of his
purportedly desperate financial status anywhere on the re‐
cordings. Hilliard also admitted that it was illegal for him, a
felon, to possess a gun, but that he had ordered a handgun for
himself from Romano, and that Hilliard had worn gloves dur‐
ing the guns‐for‐heroin trade to avoid leaving fingerprints be‐
hind. Hilliard again denied having any heroin customers
other than Romano and Agent Labno. Hilliard said that when
he would obtain more heroin than Romano and Labno had
ordered, Hilliard would hold it for them until their next order,
and that the heroin found at his home was going to be sold to
Labno. Hilliard admitted that he had been firm in resisting
Agent Labno’s attempts to negotiate a lower price, telling
Labno that a lower price would happen only if he placed
14 No. 16‐1249
larger orders consistently. Hilliard also admitted that he had
lied to both Romano and Labno on multiple occasions during
the investigation, but said he was being truthful while testify‐
ing.
The defense also called two character witnesses: a former
Tri‐Air Vice President of operations who had worked with
Hilliard, and Hilliard’s cousin. Both testified that they knew
Hilliard well and understood his character for honesty and
law‐abidance to be excellent. On cross‐examination, both also
said that if Hilliard had asked for assistance with respect to
his alleged financial difficulties, they would have helped him.
On rebuttal, the government admitted into evidence rec‐
ords from Hilliard’s phone from September 2011 to June 2012,
as well as a summary chart showing contacts between Hilli‐
ard’s phone and Romano’s phone. Special Agent Marano tes‐
tified that, from September to December of 2011, zero phone
calls or text messages had been exchanged between the two
phone numbers. In January 2012, only one phone call and one
text had been exchanged. In February 2012, there had been
incoming and outgoing contacts between both numbers, the
majority of which had been listed by the phone company as
having a duration of one minute. These could have repre‐
sented calls that had lasted only seconds but had been
rounded up in the phone company’s records.
During closing arguments, the government made no ref‐
erence to Agent Labno’s testimony about uncharged drug
transactions, and defense counsel repeatedly emphasized that
there was no evidence of uncharged drug dealing by Hilliard.
Hilliard asserted a defense of entrapment as to Counts One
through Nine, and the court gave a series of jury instructions
No. 16‐1249 15
on entrapment. Four of the government’s proposed entrap‐
ment instructions were given over defense counsel’s objec‐
tions, and the court also refused three instructions proposed
by the defense.
B. Jury Verdict, Post‐Trial Motions, and Sentencing
The jury convicted Hilliard on Counts Two through Ten,
but could not reach a verdict on Count One.5 On December
30, 2014, Hilliard filed a motion for judgment of acquittal on
Counts Two through Nine, claiming that the evidence was in‐
sufficient to prove that he had not been entrapped. Hilliard
also filed a motion for a new trial, arguing that: (1) Agent
Labno had improperly offered expert opinions during cross‐
examination; (2) the district court had erred in denying Hilli‐
ard’s request for a mistrial based on the purported expert tes‐
timony by Agent Labno; (3) the district court had erred in ad‐
mitting Hillard’s prior convictions; and (4) the district court
had erred in instructing the jury on a multi‐factor test for pre‐
disposition. The district court denied both motions on Janu‐
ary 15, 2015. However, it observed, “[T]his was a case which
5 On January 15, 2015, in the course of denying Hilliard’s motions for judg‐
ment of acquittal and for retrial, the district court described the verdict as
follows:
My guess would be that the jury thought that maybe there
is entrapment on the first delivery, maybe the second.
And the truth of the matter is [] it was an issue that was
obvious to me as well. But the jury concluded, as I
would’ve concluded, that when you get to the number of
deliveries that were made, the finder of fact could believe
that it might have started with some form of entrapment
but that the government sustained its burden of proof
with respect to the later transactions.
16 No. 16‐1249
the defense could[ ha]ve won, or put another way, it’s a case
where the government could[ ha]ve lost. There was obviously
some weight, evidenced by the final verdict that was ren‐
dered, that within the jury itself there was some disagree‐
ment.”
On January 11, 2016, Hilliard moved for reconsideration
of the denial of his post‐trial motions. The district court de‐
nied that motion on February 2, 2016. On the same day, Hilli‐
ard was sentenced to sixty‐three months’ imprisonment on
Counts Two through Seven and Count Nine, with all sen‐
tences running concurrently. Hilliard was sentenced to sixty
months’ imprisonment on Count Eight, to run consecutively
to the other sentences. In total, he was sentenced to 123
months’ imprisonment.
II. Discussion
A. Agent Labno’s Testimony
“[A] mistrial is appropriate when an event during trial has
a real likelihood of preventing a jury from evaluating the evi‐
dence fairly and accurately, so that the defendant has been
deprived of a fair trial.” United States v. Collins, 604 F.3d 481,
489 (7th Cir. 2010) (citation omitted). The district court’s deni‐
als of Hilliard’s motion for a mistrial and his post‐trial motion
for a new trial are both reviewed for abuse of discretion.
United States v. Long, 748 F.3d 322, 327 (7th Cir. 2014) (citation
omitted); United States v. Whiteagle, 759 F.3d 734, 756 (7th Cir.
2014) (citation omitted).
Hilliard takes issue with Agent Labno’s testimony on
cross‐examination, when in response to a question asking
whether Labno had ever seen Hilliard “drive anywhere else
to make a delivery of heroin” to other customers, Labno said,
No. 16‐1249 17
“I believe we followed him on occasion where we did meet
him and we believed he was doing a transaction but we
weren’t able to identify anybody involved.” Hilliard makes
several arguments as to why he deserves a new trial on the
basis of this testimony, including that the testimony was spec‐
ulative, irrelevant, and prejudicial; that it placed Agent Labno
in the dual role of both a fact and expert witness; and that it
evidences a violation of Hilliard’s due‐process rights under
either Brady v. Maryland or Napue v. Illinois. We consider (and
reject) each of these arguments in turn:
1. No Prejudice from Agent Labno’s Testimony
Hilliard emphasizes that Labno’s response contradicted
his earlier testimony that the government did not have evi‐
dence that Hilliard had sold drugs to others. Hilliard argues
that Labno “took advantage of [defense] counsel’s later ques‐
tion on the identical subject” to “volunteer” testimony that
was speculative and highly prejudicial given Hilliard’s reli‐
ance on a defense of entrapment.
The government counters that Labno’s answer was re‐
sponsive, particularly in the broader context of the line of
questioning, where Labno had previously conceded in re‐
sponse to defense counsel’s questions that “anything is possi‐
ble,” and defense counsel had earlier asked broadly about
“any facts, any evidence” of uncharged drug dealing. The
government cites to United States v. Zitt, 714 F.3d 511 (7th Cir.
2013), in which defense counsel asked a lay witness on cross‐
examination whether the defendant had known that the wit‐
ness had gone to prison in 2005, and the witness answered, “I
was in prison while he’s locked up,” revealing the defend‐
ant’s criminal history, id. at 512. Defense counsel’s motion for
a mistrial was denied, id., and we affirmed the conviction,
18 No. 16‐1249
finding no abuse of discretion by the district court because the
witness “gave an answer that was responsive, fair, and en‐
tirely proper given the line of questioning [counsel] was pur‐
suing,” id. at 513 (citation omitted); see also United States v.
Johnson‐Dix, 54 F.3d 1295, 1303–1304 (7th Cir. 1995) (conclud‐
ing district court acted within its discretion in denying motion
for mistrial where agent was asked whether defendant coop‐
erated post‐arrest and agent testified that defendant “was, in
my opinion, telling half‐truths the entire night,” because the
agent’s response was invited by counsel’s question).
Hilliard counters that Labno’s answer was not responsive
because defense counsel asked for facts, not for speculation or
opinion. However, although Agent Labno’s immediate an‐
swer to defense counsel’s question may have been less obvi‐
ously responsive than the testimony at issue in Zitt or Johnson‐
Dix, any potential confusion was thoroughly cleaned up by
defense counsel’s follow‐up questioning, which made clear
that the Skokie surveillance to which Agent Labno was refer‐
ring had not involved the observation of any transaction or
even the presence of any individual other than Hilliard.6
Moreover, the government did not elicit any related testi‐
mony during redirect, and the government never referred to
or relied on this testimony in arguing that the jury could infer
from the evidence that Hilliard had dealt to other customers.
Instead, the government pointed to the recordings of Hilliard
6 Indeed, the government points out (and Hilliard does not contest in his
reply) that Hilliard’s defense counsel never objected to or moved to strike
the testimony, or seek curative instructions for the jury, presumably be‐
cause such actions were unnecessary given the clarifications made
through continued questioning.
No. 16‐1249 19
discussing how he had run his drug business, controlled ad‐
dicted customers, and avoided law‐enforcement detection;
the absence in the recordings of any evidence of pressure by
Romano; and the lack of phone or text contacts between Ro‐
mano and Hilliard in the fall of 2011 (which undermined Hil‐
liard’s testimony to the contrary). See, e.g., Johnson‐Dix, 54 F.3d
at 1304 (“It is in any event doubtful that the agent’s statement
had any effect on the jury’s assessment of [defendant’s] cred‐
ibility, as the agent already had testified on direct examina‐
tion, without objection from [defense] counsel, that he had
told [defendant] in the course of their discussions that [de‐
fendant] was not being entirely truthful … .The agent’s state‐
ment thus did not deprive [defendant] of a fair trial.”). Mean‐
while, defense counsel repeatedly emphasized at closing that
there was no evidence of Hilliard having had any drug deals
with customers other than Romano and Labno. As such,
Agent Labno’s testimony was non‐prejudicial and harmless.
Hilliard points out that the jury deliberated for four days
and ultimately returned a verdict of not guilty on one count
but guilty on the remainder. He claims that this shows a jury
that could very well have been swayed by Labno’s testimony.
However, the district court’s take on the jury’s verdict is rea‐
sonable, and the court thus acted well within its discretion in
denying the motions for a mistrial and for a new trial.
2. No Expert Testimony from Agent Labno
Hilliard also argues that Agent Labno threw his experi‐
ence as an ATF agent behind his allegedly conjectural testi‐
mony, such that it crossed the line from lay testimony to in‐
appropriate expert testimony. We review de novo a district
court’s interpretation of the rules of evidence, but we review
20 No. 16‐1249
its rulings to admit or exclude evidence for abuse of discre‐
tion. See United States v. Schmitt, 770 F.3d 524, 532 (7th Cir.
2014) (citation omitted); United States v. Rogers, 587 F.3d 816,
819 (7th Cir. 2009) (citing United States v. LeShore, 543 F.3d 935,
939, 941 (7th Cir. 2008)).
Rule 701 of the Federal Rules of Evidence governs opinion
testimony of lay witnesses and provides:
If a witness is not testifying as an expert, testi‐
mony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness’s per‐
ception;
(b) helpful to clearly understanding the
witness’s testimony or to determin‐
ing a fact in issue; and
(c) not based on scientific, technical, or
other specialized knowledge within
the scope of Rule 702.
Fed. R. Evid. 701. Rule 702 contains safeguards for expert tes‐
timony, and Federal Rule of Criminal Procedure 16(a)(1)(G)
requires that such testimony be disclosed to the defendant
prior to trial. See Fed. R. Evid. 702; Fed. R. Crim. P. 16(a)(1)(G).
Hilliard argues that Labno’s testimony violated Rule
701(a) because Labno himself was not present during the
events in Skokie being discussed—rather, he referred to the
observations of another, non‐testifying agent. Hilliard cites to
United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013), in
support; but we explained in Mendiola that a witness need not
have had “personal interaction” with a defendant in order to
No. 16‐1249 21
provide appropriate Rule 701 testimony (in that case, identi‐
fying the defendant’s voice in a recording), id. at 741. Rather:
The requirement that lay opinion be based on
the perception of the witness imports into Rule
701 the personal knowledge standard of Rule
602.[7] And the knowledge required by Rule 602
is not absolute or unlimited knowledge but
simply that awareness of objects or events that
begins with sensory perception of them, a com‐
prehension of them, and an ability to testify at
trial about them. … [The agent] listened to the
recordings, compared them to the exemplar,
and was able to report her perceptions to the
jury. To reiterate, if there was a question as to
the quality of the perception, that went to the
weight the jury attributed to her comparison.
Id. (citations omitted). In Hilliard’s case, although Labno had
not been present in Skokie and had not personally witnessed
Hilliard’s driving or movements on September 18, 2012,
Labno presumably spoke with the surveillance officer who
had witnessed those things, or reviewed the surveillance re‐
port on which Stipulation 15 was based. And most im‐
portantly, as noted above, later questioning immediately clar‐
ified the limits of Labno’s own knowledge, as well as what
exactly had been observed, and tethered Labno’s testimony to
this particular investigation rather than drawing on his years
7 Federal Rule of Evidence 602 provides that “[a] witness may testify to a
matter only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Evidence to prove per‐
sonal knowledge may consist of the witness’s own testimony.” Fed. R.
Evid. 602.
22 No. 16‐1249
of experience. Thus, like the testimony in Mendiola, Labno’s
testimony was reporting to the jury his own (albeit indirect)
knowledge and perceptions of the ongoing surveillance in
this investigation, and the jury was able to decide how much
weight to give Labno’s testimony on this matter.
United States v. Oriedo, 498 F.3d 593 (7th Cir. 2007), is also
instructive. The agent in Oriedo was first asked whether, “as a
surveillance agent,” a given sequence of events “raise[d] any
red flags” with him. Id. at 602 (alteration in original). The
agent testified that he became concerned in watching a second
vehicle arrive at a drug transaction because “that indicates to
us that there is what is called counter‐surveillance occurring
and they are looking for law enforcement.” Id. Oriedo ob‐
jected that this was an undisclosed expert opinion, so the gov‐
ernment withdrew the question and rephrased to ask whether
the agent was “personally concerned” about the presence of
two vehicles. Id. The agent responded in the affirmative be‐
cause “more than one vehicle … raises concerns about being
countersurveillance [sic].” Id. (omission and bracketed text in
original). We concluded that this was lay testimony under
Rule 701 because, although the agent’s “specialized
knowledge informed his mental state, he was not called upon
to testify generally about narcotics counter‐surveillance prac‐
tices or to offer an explicit opinion that what he observed was
counter‐surveillance.” Id. (citation omitted); see also United
States v. Rollins, 544 F.3d 820, 831–32 (7th Cir. 2008) (holding
that agent could testify as to his “impressions” of intercepted
telephone conversations under Rule 701 because he was ex‐
plaining coded words and phrases that were unique, such
that his understanding came only as result of things he had
No. 16‐1249 23
perceived, not from specialized knowledge).8 Similarly,
Agent Labno’s experience with the ATF may have informed
his perception of the surveillance results, but he did not testify
generally about signs of a drug transaction or offer an explicit
opinion that what he had observed was somehow a drug
transaction. His testimony was limited to what he recalled
from the surveillance report and/or Stipulation 15—facts de‐
rived exclusively from the investigation. And defense coun‐
sel’s later questioning prevented Labno from making any
connections for the jury based on his specialized background.
See Rollins, 544 F.3d at 832 (“To be sure, the jury was well
aware that Agent McGarry had years of experience as a law
enforcement officer. But we do not think that he was cloaked
with an ‘aura of expertise’ which allowed the jury to be un‐
duly swayed … or that his testimony was based on his spe‐
cialized knowledge as a DEA agent … .”).
Hilliard additionally contends that Labno’s “speculation”
was not helpful to understanding his testimony or determin‐
ing a fact in issue, and thus violated Rule 701(b). But Labno
was appropriately responding to defense counsel’s questions
regarding the lack of evidence of other drug deals by Hilliard,
and Labno’s initial response, together with his later answers,
were helpful in clarifying that issue. Hilliard relatedly con‐
tends that Labno’s testimony was irrelevant because it had no
8 Hilliard cites to United States v. Grinage, 390 F.3d 746, 749–51 (2d Cir.
2004), in which the Second Circuit held that an agent’s testimony inter‐
preting recorded phone calls was not proper lay testimony because it
usurped the role of the jury by increasing the risk that the jury would rely
on that testimony rather than on its own interpretation of the calls. How‐
ever, we explicitly disagreed with the Second Circuit’s interpretation of
Rule 701 in Rollins. See 544 F.3d at 832.
24 No. 16‐1249
probative value under Rules 401 and 402, and that because of
the enormous potential for unfair prejudice and confusing the
jury, the testimony should not have been admitted under Rule
403. For the reasons outlined above, however, the testimony
did have some relevance, any risk of prejudice or confusion
was effectively neutralized, and the district judge acted
within his discretion in admitting the testimony.
3. No Due‐Process Violation Under Either Brady or Na‐
pue
Finally, Hilliard raises claims under both Brady and Napue,
based on Agent Labno’s reference to a “report” by another
agent documenting the Skokie events. On one hand, Hilliard
claims that if a report other than the surveillance report un‐
derlying Stipulation 15 exists and was undisclosed to the de‐
fense, he suffered a violation of Brady v. Maryland, 373 U.S. 83
(1963). On the other hand, Hillard claims that if the report ref‐
erenced was the same one underlying Stipulation 15, Labno
distorted the meaning of the report to the point of giving false
or misleading testimony in violation of Napue v. Illinois, 360
U.S. 264 (1959).
The government submits on appeal that Hilliard’s Brady
argument misconstrues the record, and affirms that there was
no other, undisclosed report: Agent Labno clearly was refer‐
ring to the disclosed surveillance report associated with Stip‐
ulation 15, and thus there is no Brady issue. The trial transcript
supports this contention, and Hilliard offers no evidence to
call into question the government’s position. See United States
v. Brendia, 234 F.3d 1274, No. 00‐2178, 2000 WL 1716433, at *3
(7th Cir. 2000) (unpublished table opinion) (“A due process
standard which is satisfied by mere speculation would con‐
No. 16‐1249 25
vert Brady into a discovery device and impose an undue bur‐
den upon the district court.”) (citation omitted); United States
v. Morris, 957 F.2d 1391, 1402–03 (7th Cir. 1992) (affirming de‐
nial of Brady request and refusing in camera inspection where
government asserted it had turned over all exculpatory mate‐
rial and defendants offered “nothing but pure conjecture or
speculation” that documents contained exculpatory infor‐
mation). We thus move on to Hilliard’s claim under Napue.
Napue stands for the proposition that prosecutors may not
suborn perjury, and holds that a defendant’s due‐process
rights are violated when the government obtains a conviction
through the knowing use of false testimony. See 360 U.S. at
269; United States v. Are, 590 F.3d 499, 509 (7th Cir. 2009) (cit‐
ing United States v. Holt, 486 F.3d 997, 1003 (7th Cir. 2007)).
Hilliard’s Napue claim fails for the reasons already discussed.
Any initial confusion in Agent Labno’s testimony was cleared
up through later questioning, and Labno’s responses ex‐
plained the limits of the report’s content. This neutralized any
specter of “false” testimony, and there was thus no need for
the government to clarify or disavow Labno’s statement—de‐
fense counsel had already done what arguably would have
been needed. Hilliard complains that although “[b]efore this
court the government’s brief makes clear that no other report
exists,” in front of the jury, it was not clear what report was
being discussed, and defense counsel could not question the
authoring agent or any other agent about the events at issue—
he was limited to cross‐examining Agent Labno on the basis
of Stipulation 15. Even so, Napue “does not require the gov‐
ernment … to clear up any possible confusion when the wit‐
ness’s testimony was not perjurous.” Are, 590 F.3d at 509 (ci‐
tation omitted). Finally, it is again unlikely that the reference
26 No. 16‐1249
to the report affected the judgment of the jury, as the govern‐
ment did not rely on this part of Labno’s testimony at trial and
the case against Hilliard based on other evidence was sub‐
stantial.
B. Jury Instructions on Entrapment
Hilliard also takes issue with a number of jury instructions
on the defense of entrapment. We review de novo the legal
correctness of jury instructions. E.g., United States v. Ye, 588
F.3d 411, 414 (7th Cir. 2009) (citation omitted). The district
court has discretion concerning the specific wording of in‐
structions so long as the final result, read as a whole, com‐
pletely and correctly states the law. United States v. Cote, 504
F.3d 682, 687 (7th Cir. 2007) (quoting Calhoun v. Ramsey, 408
F.3d 375, 379 (7th Cir. 2005)). If the instruction contains an er‐
ror or misguides the jury, we reverse a jury verdict only if the
error prejudiced the litigant. Calhoun, 408 F.3d at 379 (citation
omitted).
1. Elements of Entrapment (Pattern Instruction 6.04)
“Entrapment is a defense to criminal liability when the de‐
fendant was not predisposed to commit the charged crime be‐
fore the intervention of the government’s agents and the gov‐
ernment’s conduct induced him to commit it.” United States v.
Mayfield, 771 F.3d 417, 420 (7th Cir. 2014) (en banc). The two
elements of the defense—lack of predisposition and govern‐
ment inducement—are conceptually related but formally dis‐
tinct. Id. The instruction given on the elements of entrapment
read as follows:
With respect to Counts One through Nine, the
government has the burden of proving beyond
a reasonable doubt that the defendant was not
No. 16‐1249 27
entrapped by the informant or law enforcement
officers. The government must prove either:
1. Law enforcement officers and their
agents did not induce the defendant
to commit the offense; or
2. The defendant was predisposed to
commit the offense before he had
contact with law enforcement officers
or their agents. If the defendant was
predisposed, then he was not en‐
trapped, even though law enforce‐
ment officers or their agents provided
a favorable opportunity to commit
the offense, made committing the of‐
fense easier, or participated in acts es‐
sential to the offense.
At the instructions conference, Hilliard’s defense counsel
objected based on the difference between subsection 1 of the
instruction given and that of Seventh Circuit Pattern Instruc‐
tion § 6.04, which reads: “Law enforcement officers and their
agents did not persuade or otherwise induce … .” Pattern Crimi‐
nal Jury Instructions of the Seventh Circuit § 6.04 (2012) (em‐
phasis added). Hilliard points out on appeal that we used
both “induce” and “persuade” throughout our en banc opin‐
ion in Mayfield, in which we “clarif[ied] the doctrine [of en‐
trapment] both substantively and procedurally.” 771 F.3d at
420. Hilliard also notes that the Supreme Court likewise used
“persuade” in the “seminal” entrapment cases Sorrells v.
United States, 287 U.S. 435 (1932) and Sherman v. United States,
356 U.S. 369 (1958). Two additional instructions that were
given—one of which the parties both agreed on and the other
28 No. 16‐1249
one of which defendant agreed to after a minor edit—further
defined the term “inducement.”
The government argued at the instructions conference and
maintains on appeal that Mayfield defined “inducement” in
such a way that retaining the word “persuade” from the pat‐
tern instruction would be inappropriate. Mayfield held in rel‐
evant part that inducement “means more than mere govern‐
ment solicitation of the crime; the fact that government agents
initiated contact with the defendant, suggested the crime, or
furnished the ordinary opportunity to commit it is insufficient
to show inducement.” 771 F.3d at 434; see also id. at 433
(“[S]omething more is required, either in terms of the charac‐
ter and degree of the government’s persistence or persuasion,
or the nature of the enticement or reward … .”). Rather, “in‐
ducement means government solicitation of the crime plus
some other government conduct that creates a risk that a per‐
son who would not commit the crime if left to his own devices
will do so in response to the government’s efforts.” Id. at 434–
35. We then noted that the “other conduct” could include “re‐
peated attempts at persuasion, fraudulent representations, …
coercive tactics, harassment,” etc. Id. at 435. Given Mayfield’s
explicit reference to persuasion as only one part of the re‐
quired showing for inducement, Hilliard’s proposed instruc‐
tion (that is, Pattern Instruction § 6.04) could have incorrectly
led the jury to believe a defendant could satisfy the induce‐
ment prong by showing mere persuasion. The district court
thus acted within its discretion in giving the instruction it did.
2. Government’s Good Faith
The court also gave the following non‐pattern instruction
proposed by the government:
No. 16‐1249 29
The law does not require the government to
have a pre‐existing good faith basis for suspect‐
ing criminal activity before a government of‐
ficer may initiate an undercover investigation.
Hilliard’s defense counsel objected at the instructions confer‐
ence that this instruction was unnecessary to the defense of
entrapment, as “whether or not [the government] had a
preexisting good‐faith basis for suspecting criminal history
has nothing to do with [Hilliard’s] predisposition,” or “in‐
ducement.” Counsel contended that including this irrelevant
instruction could confuse the jury. On appeal, Hilliard again
argues that this non‐pattern instruction was irrelevant and
“served only to provide a gratuitous imprimatur to the gov‐
ernment’s conduct on a matter not in issue.”
The government responds that a key defense argument
was that Hilliard had not been engaged in dealing drugs prior
to being approached by Romano. Thus, the government ar‐
gues, the instruction was helpful in case the jury was confused
about whether predisposition required an inquiry into what
the “agents did know and didn’t know” about Hilliard’s
pre‐sting activities at the time the operation had begun. With‐
out this instruction, which accurately states the law, see, e.g.,
United States v. Miller, 891 F.2d 1265, 1269 (7th Cir. 1989), the
jury could have mistakenly perceived the government’s initi‐
ation of the operation, without knowledge of prior or ongoing
drug dealing by Hilliard, as evidence of alleged inducement
or entrapment. As such, the district court acted within its dis‐
cretion in including this instruction; and given the numerous
other instructions provided regarding the two elements, there
was little possibility of prejudice to Hilliard stemming from
this particular instruction’s inclusion.
30 No. 16‐1249
3. Definition of Predisposition
The government and Hilliard each submitted a proposed
instruction defining “predisposition” based on Mayfield. The
government’s proposed instruction, which the court ulti‐
mately adopted, read, “A defendant is predisposed to commit
the charged crime if he was ready and willing to do so and
likely would have committed it without the government’s in‐
tervention, or actively wanted to but hadn’t yet found the
means.”
Hilliard’s proposed instruction consisted of the complete,
verbatim holding in Mayfield on the definition of predisposi‐
tion:
A defendant is predisposed to commit the
charged crime if he was ready and willing to do
so and likely would have committed it without
the government’s intervention, or actively
wanted to but hadn’t yet found the means. The
defendant’s predisposition is measured at the
time the government first proposed the crime,
but the nature and degree of the government’s
inducement and the defendant’s responses to it
are relevant to the determination of predisposi‐
tion. A prior conviction for a similar offense is
relevant but not conclusive evidence of predis‐
position; a defendant with a criminal record can
be entrapped.
However, the district court found that the defense’s proposed
instruction was unnecessary, because the first two sentences
were already included in the government’s proposed instruc‐
No. 16‐1249 31
tions and the third sentence was ultimately made into an in‐
dependent instruction. Defense counsel expressed a prefer‐
ence to read all of the above as one instruction, but the district
court explained, “[T]he reason I like [the government’s break‐
down of the definition], is it’s a kind of foreign concept, en‐
trapment, and because I’m turning pages while I’m doing
this, … I think what it does is it gives emphasis to three theo‐
ries for three aspects of the way we look at entrapment and
does it in a way that might be lost if it’s in one instruction.”
Given this explanation of the district court’s choice of organi‐
zation, as well as the fact that the jury did ultimately hear all
three sentences from the defense’s proposed instruction,
which together accurately stated the law, the district court
acted well within its discretion in giving the instruction it did.
4. Factors to Consider With Respect to Predisposition or
Entrapment
Lastly, both the government and Hilliard submitted pro‐
posed instructions on the factors to be considered in evaluat‐
ing Hilliard’s defense. Hilliard asked that the court give the
pattern instruction listing factors relating to entrapment as a
whole, whereas the government proposed a shorter list of fac‐
tors for predisposition based on Mayfield. The district court
ultimately gave the latter instruction, which read:
Some factors you may consider in deciding
whether the defendant was predisposed in‐
clude:
(1) the defendant’s character or reputa‐
tion;
(2) whether the government initially
suggested the criminal activity;
32 No. 16‐1249
(3) whether the defendant engaged in
the criminal activity for profit;
(4) whether the defendant evidenced a
reluctance to commit the offense that
was overcome by government per‐
suasion; and
(5) the nature of the inducement or per‐
suasion by the government.
No one factor controls and you may consider
other factors. However, the most significant fac‐
tor you should consider is whether the defend‐
ant was reluctant to commit the offense.
In contrast, the pattern instruction on entrapment included as
a factor “[w]hether the defendant was reluctant to engage in
criminal activity,” and also stated, “It is up to you [the jury]
to determine the weight to be given to any of these factors and
any others that you consider.” Pattern Criminal Jury Instruc‐
tions of the Seventh Circuit § 6.05. Hilliard argues that the
given instruction diverged from the pertinent pattern, which
Mayfield never suggested was wrong, and confused the jury
by elevating the reluctance factor over all others.
The government responds that the pattern instruction pre‐
dates Mayfield, which clarified which factors apply to induce‐
ment, which ones apply to predisposition, and which may ap‐
ply to both. The instruction given lays out verbatim the lan‐
guage from Mayfield for determining predisposition, includ‐
ing the language stating that the most significant factor is
whether the defendant was reluctant to commit the offense.
See 771 F.3d at 435 (citation omitted). Mayfield went on to pro‐
vide the aforementioned “legal definition of predisposition,”
so that jurors would know what to look for when weighing
No. 16‐1249 33
the above factors, id.; but consideration of the five factors
listed remains the law. Here, it seems the district court did just
as Mayfield recommended: It provided the definition of pre‐
disposition and the factors to be considered in evaluating Hil‐
liard’s defense.
III. Conclusion
For the foregoing reasons, we AFFIRM Hilliard’s conviction
and sentence.