United States v. Djokich , 693 F.3d 37 ( 2012 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 10-2294
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    NICHOLAS DJOKICH,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Mark L. Wolf, U.S. District Judge]
    Before
    Torruella, Lipez, and Howard,
    Circuit Judges.
    Paul J. Andrews, with whom Elizabeth Billowitz and Denner
    Pellegrino, LLP were on brief, for appellant.
    Robert E. Richardson, Assistant United States Attorney, with
    whom Carmen M. Ortiz, United States Attorney, was on brief, for
    appellee.
    August 29, 2012
    LIPEZ, Circuit Judge.         Appellant Nicholas Djokich was
    indicted with Eginardo DeAngelis on one count of conspiracy to
    commit kidnaping in violation of 18 U.S.C. § 1201(a)(1) and (c),
    and one count of conspiracy to use interstate commerce facilities
    in the commission of murder for hire in violation of 18 U.S.C.
    § 1958. Djokich moved to dismiss the indictment, citing outrageous
    government misconduct in manufacturing federal jurisdiction.           The
    district court deferred ruling on the motion to dismiss, and the
    case proceeded to a fourteen-day trial.           On June 16, 2010, a jury
    convicted Djokich on both counts.1          Two days later, the district
    court denied the motion to dismiss.          Djokich was sentenced to 240
    months' imprisonment, followed by 36 months of supervised release,
    and fined $25,000.
    Djokich timely appeals, arguing that the district court
    erred in denying his motion to dismiss and in refusing to instruct
    the jury on the defense of jurisdictional entrapment.               After
    careful review of the record, we affirm.
    I.
    On the basis of the evidence presented at trial, a
    reasonable     jury   could   have        found   the   following   facts.
    See Quiles-Quiles v. Henderson, 
    439 F.3d 1
    , 3 (1st Cir. 2006).
    1
    The jury found DeAngelis not guilty on both counts.
    -2-
    A.   The Embezzlement
    The charges against Djokich arose from a plot to kidnap
    and kill Richard DeVries, a Canadian lawyer who lived in the
    Bahamas.    In March 2007, Djokich called DeVries and told him that
    he believed some of Djokich's money had gone into DeVries' trust
    fund through an intermediary, William Lenz, with whom Djokich had
    invested    money.        Suspecting         that    Lenz,    DeVries'     client,      had
    embezzled    money      from       Djokich,       Djokich   asked   DeVries      for    the
    relevant records.             After Lenz waived attorney-client privilege,
    DeVries determined that approximately $284,000 that Djokich had
    invested with Lenz had been put into the trust fund that DeVries
    held on Lenz's behalf.             DeVries told Djokich that he believed the
    money had been invested according to Lenz's representations to
    clients     and    that       he     did    not     think    that   Lenz       had    acted
    inappropriately.          However, DeVries also told Djokich that if he
    felt he had been defrauded, he should contact authorities. DeVries
    told   Djokich         that     he    would       cooperate    with      any     official
    investigation.
    B.   Recruiting Accomplices
    Nasser Saffiedie,              also known as "Victor," is a Lebanese
    national who immigrated to Canada in 1991.                      While Saffiedie was
    working     as    an    informant          for    U.S.   Immigration       and       Customs
    Enforcement ("ICE"), he was contacted by Abu Nimer.                      Saffiedie and
    Nimer were acquainted from a previous scheme, based in Montreal, in
    -3-
    which Saffiedie acted as a money launderer.    Nimer asked Saffiedie
    if he knew someone who could help Nimer's "Italian friend," an
    apparent reference to DeAngelis, by going to the Bahamas, kidnaping
    a person who had defrauded DeAngelis's friend of $175 million, and
    forcing that person to repay the money.
    Saffiedie agreed to meet Nimer in Montreal on July 3,
    2008.   The meeting took place at the offices of Reber America, a
    company owned by DeAngelis.    During the meeting, Nimer introduced
    Saffiedie to DeAngelis and Djokich. Djokich told Saffiedie that he
    had lost a lot of money in an investment and said that DeVries was
    responsible.   Saffiedie testified that Djokich wanted him to go to
    the Bahamas and force DeVries to return the money.    Saffiedie also
    said that Djokich told him that "he doesn't mind if Mr. DeVries
    would go fishing and he never came back."     Saffiedie told Djokich
    that he may know someone who could do the job.
    After the meeting, Saffiedie contacted his handler, ICE-
    Boston Special Agent Derek Dunn, and described the meeting.      On
    July 15, Dunn instructed Saffiedie to tell Nimer that he had
    someone to do the job.     Saffiedie, Nimer, Djokich, and DeAngelis
    met on July 17, again at Reber America.         During the meeting,
    Saffiedie told the others that he had some men willing to kidnap
    DeVries.   Saffiedie said that the men wanted to meet with Djokich
    and DeAngelis in Boston.
    -4-
    C.   The July 23, 2008, Meeting at Logan Airport
    On Dunn's instruction, Saffiedie called Djokich on July
    21 and gave him a contact number for "Peter," the man Djokich was
    to meet in Boston.        The same day, Dunn contacted Peter Pasciucco,
    a detective with the Massachusetts Bay Transit Authority Police who
    had worked with ICE for several years.           Dunn told Pasciucco that he
    would receive a call later that day to set up a meeting with
    "Nick," later identified as Djokich. Djokich called Pasciucco that
    evening and again the following day.
    Pasciucco and Djokich met at Logan Airport in Boston on
    July 23 and spoke in a restaurant there for approximately 70
    minutes.      The conversation was recorded by a body wire worn by
    Pasciucco. During the conversation, Pasciucco told Djokich that he
    seemed   to    have   a   good   legal    case   against   DeVries.   Djokich
    responded that DeVries was a lawyer and would "tie [him] up [in
    court] for the next 30 years." Djokich explained to Pasciucco that
    he had been defrauded through an investment scam by Lenz, DeVries,
    and others known as the French men.                Djokich said that Lenz,
    DeVries, and the others had guaranteed him a safe investment but
    nevertheless lost all the money that Djokich invested.                  Now,
    Djokich said, he intended to hold the men to their guarantee.
    Djokich described how he had gone after Lenz a few years earlier
    but was unable to recover any money after cutting off Lenz's pinky
    finger because the bank would not complete a transfer of funds
    -5-
    without Lenz physically present.         As to the French men, Djokich
    said that he would take care of them by "bury[ing] them alive."
    Djokich also indicated that he was considering targets in Detroit
    and London.
    Regarding the DeVries plan, Pasciucco said that he could
    get a boat and kidnap DeVries by taking him on it.           Before doing
    so, however, Pasciucco said that he wanted to be sure DeVries had
    access to money in order to avoid the problem Djokich had with
    Lenz.    Djokich   responded   that,     "[i]f   [DeVries]   refuses   and
    everything, . . . he swims with the fish.          Simple as that."    In
    response, Pasciucco said, "You want me to throw him overboard, I'll
    throw him overboard.   You want me to dust him off and put him back
    on the pier, I'll do that, too."    Later in the conversation Djokich
    said about DeVries, "I mean, I know he has the cash.          I know he's
    hiding it for the other pieces of shit.          And once he disposes of
    it, maybe dispose of him." Pasciucco said the treatment of DeVries
    was up to Djokich, and Djokich responded, "I'm gonna talk to
    [DeAngelis] about that.   He's got more experience than I do."
    During the conversation, Pasciucco asked to be paid a set
    fee instead of a percentage of what was recovered.        Pasciucco said
    that he needed $10,000 up front.     Djokich agreed, stating that the
    money may not come from him but from DeAngelis.              Djokich and
    Pasciucco agreed to communicate about the logistics of the deal by
    email. Pasciucco gave Djokich an email address and password for an
    -6-
    account in which they could communicate privately without using the
    internet.
    D.   Delivery of $10,000 to Pasciucco
    Between their meeting at the airport and August 11, 2008,
    Djokich and Pasciucco communicated by email and telephone to
    arrange delivery of the $10,000 Pasciucco requested up front.             At
    the airport, Pasciucco had suggested meeting at the library in
    Derby Line, Vermont.      In a call on July 29, 2008, Djokich asked
    Pasciucco to come to Canada instead, but Pasciucco falsely claimed
    that he had a problem with his passport.           At ICE's instruction,
    Pasciucco suggested by email that they move the meeting "west," by
    which he meant Burlington, Vermont.         Djokich took "west" to mean
    Calgary and agreed to the change in plans. Pasciucco clarified his
    intent by phone the following day, and Djokich said that the
    library was a better option. Pasciucco agreed. However, on August
    10, 2008,    "Al,"   an   associate    involved   in   the   delivery,   told
    Pasciucco that it would be simpler for the meeting to take place in
    the Burlington area.      On August 11, Al, DeAngelis and two others
    drove to meet Pasciucco in a parking lot in Williston, Vermont.           At
    the meeting, Al gave Pasciucco a bag containing $10,000 in cash.
    Djokich was not present.
    E.   The October 15, 2008, Meeting at Logan Airport
    After the cash exchange, Pasciucco and Djokich continued
    to communicate about details of the deal by email and telephone.
    -7-
    In mid-August, Pasciucco told Djokich by email that he was doing
    the job in Florida because the Bahamas presented too many issues.
    Djokich told Pasciucco that it was "[his] call."        Over the phone on
    August 25, Pasciucco specified that they were doing the job in
    South Florida.   Djokich replied, "Okay."       Pasciucco also suggested
    a final pre-job meeting in Boston to which Djokich agreed.
    Pasciucco and Djokich arranged to meet at Logan Airport
    on October 15, 2008.    During the meeting, they discussed the plot
    generally as well as DeVries' fate.         Pasciucco said, "[T]he second
    issue is, dead or alive?"       Djokich said that "[DeAngelis] wants
    him, um, wiped out."     Pasciucco pressed for Djokich's opinion,
    saying that he worked for Djokich not DeAngelis.        Djokich said, "I
    know, I know.    But [DeAngelis] told me he wants [DeVries] done."
    Pasciucco pressed Djokich further, confirming with Djokich that
    "both of youse are saying kill him."        Djokich clarified, "[T]hat's
    [DeAngelis's] orders. . . .     I asked him.      I said, Angelo, you're
    calling the shots, what [do] you want to do. . . .            And this is
    what he wants to do."    Pasciucco said that he may kidnap DeVries
    the following Monday and sought confirmation about his orders: "So
    the two guys that are in charge of this are saying kill him?"
    Djokich replied, "[O]ne guy is [DeAngelis].         He's saying wipe him
    out."
    Over   the   course   of    the    conversation,   Djokich   also
    indicated to Pasciucco that he had "a couple of [additional] jobs"
    -8-
    for Pasciucco.      Djokich told Pasciucco about his displeasure with
    another unidentified man, saying he did not know "where to do it,
    either in Montreal or . . . Jersey."
    Djokich was arrested three days later, on October 18,
    2008, when he arrived at Los Angeles International Airport for
    business unrelated to this case.
    II.
    Djokich makes two arguments on appeal.                 Both depend on
    essentially the same contention: the government created United
    States    jurisdiction     by     unlawfully      orchestrating      a    change   in
    location     for   the   crimes    that    Djokich      conspired    to    commit.
    Specifically, Djokich claims that the conspiracy in which he was
    engaged did not contemplate the commission of crimes in the United
    States before the government took purposeful steps to ensure that
    those crimes were moved from the Bahamas to the United States,
    thereby creating federal jurisdiction.                  Djokich argues that the
    district court erred by denying his motion to dismiss, which
    alleged    that    the   government's      efforts      to   manufacture     federal
    jurisdiction constituted outrageous misconduct, thereby mandating
    dismissal     of   the   indictment       under   the    outrageous       misconduct
    doctrine.2    Djokich also challenges the district court's failure to
    2
    The indictment charged Djokich and DeAngelis with one count
    of conspiracy to commit kidnaping in violation of 18 U.S.C.
    § 1201(a)(1) and (c), and one count of conspiracy to use interstate
    commerce facilities in the commission of murder for hire in
    violation of 18 U.S.C. § 1958. A person violates 18 U.S.C. § 1201
    -9-
    give a jury instruction explaining his jurisdictional entrapment
    theory of defense.3
    if he or she
    (a) . . . unlawfully seizes, confines, inveigles, decoys,
    kidnaps, abducts, or carries away and holds for ransom or
    reward or otherwise any person, except in the case of a
    minor by the parent thereof, when--
    (1) . . . the offender travels in interstate
    or foreign commerce or uses the mail or any
    means,   facility,   or  instrumentality  of
    interstate or foreign commerce in committing
    or in furtherance of the commission of the
    offense; . . . [and]
    (c) If two or more persons conspire to violate this
    section and one or more of such persons do any overt act
    to effect the object of the conspiracy, each shall be
    punished by imprisonment for any term of years or for
    life.
    A person violates 18 U.S.C. § 1958 if he or she
    (a) . . . travels in or causes another (including the
    intended victim) to travel in interstate or foreign
    commerce, or uses or causes another (including the
    intended victim) to use the mail or any facility of
    interstate or foreign commerce, with intent that a murder
    be committed in violation of the laws of any State or the
    United States as consideration for the receipt of, or as
    consideration for a promise or agreement to pay, anything
    of pecuniary value, or . . . conspires to do so . . . .
    3
    In his appellate briefing, Djokich uses the term
    "manufactured jurisdiction" when discussing the motion to dismiss
    and   the   term   "entrapment-based   manufactured   jurisdiction
    instruction" when discussing his proposed jury instruction. In the
    district court,     Djokich labeled    his proposed    instruction
    "jurisdictional entrapment." For clarity here, we use the term
    "manufactured jurisdiction" in discussing Djokich's motion to
    dismiss argument and "jurisdictional entrapment" in discussing his
    jury instruction argument.
    -10-
    A.   Manufactured Jurisdiction
    We review de novo the district court's conclusion that
    the government did not engage in misconduct sufficient to warrant
    dismissal of the charges. United States v. Guzman, 
    282 F.3d 56
    , 58
    (1st Cir. 2002).      In order to rule on the motion to dismiss the
    indictment, the district court made certain findings of fact based
    on the evidence presented at trial.     We review those findings for
    clear error.    Id.
    1.   Background
    In limited circumstances, courts may dismiss criminal
    charges in response to outrageous government misconduct:
    In rare and extreme circumstances, a
    federal court has the authority to dismiss
    criminal charges as a sanction for government
    misconduct.     But the law frowns on the
    exoneration of a defendant for reasons
    unrelated to his guilt or innocence, and,
    accordingly, the power to dismiss charges
    based solely on government misconduct must be
    used   sparingly.     It   follows   that the
    outrageous government misconduct doctrine is
    reserved for the most appalling and egregious
    situations. At the very least, the defendant
    must show that the challenged conduct violates
    commonly   accepted   norms   of   fundamental
    fairness and is shocking to the universal
    sense of justice.
    Guzman, 282 F.3d at 59 (citations omitted); see also United States
    v. Luisi, 
    482 F.3d 43
    , 59 (1st Cir. 2007) ("While the doctrine is
    often invoked    by   criminal defendants,   it has   never   yet been
    successful in this circuit.").    Dismissal may be proper, however,
    where the government's misconduct is "so outrageous that due
    -11-
    process   principles   would    absolutely     bar     the    government   from
    invoking judicial processes to obtain a conviction." United States
    v. Russell, 
    411 U.S. 423
    , 431-32 (1973); see also United States v.
    Santana, 
    6 F.3d 1
    , 8 (1st Cir. 1993) ("Generally speaking, an
    outrageous misconduct defense can prosper only if a defendant's due
    process rights have been violated." (emphasis omitted)).
    Djokich argues that the government engaged in this type
    of outrageous misconduct when it took numerous steps to shift the
    planned crime to the United States from beyond its borders.                  He
    notes that the DeVries plot was first devised at a meeting that
    took place in Canada, where there was discussion of the recovery of
    money from DeVries in the Bahamas.        Djokich states that none of the
    original participants (Djokich, DeAngelis, Saffiedie, Nimer, or
    DeVries) is an American citizen, and neither Djokich nor DeAngelis
    ever initiated or suggested traveling to, taking action in, or
    hiring someone from the United States.                Only at ICE-Boston's
    instruction did Saffiedie arrange for the meeting between Djokich
    and Pasciucco in Boston.       Djokich argues that he repeatedly tried
    to move meetings to, and keep meetings in, Canada.                     Further,
    Djokich argues that his willing travel to Boston does not foreclose
    dismissal based on manufactured jurisdiction.
    More   significantly,     Djokich        argues    that    ICE-Boston
    deliberately replaced its Canada-based informant, Saffiedie, with
    an   undercover   American,     Pasciucco,     in     order   to     manufacture
    -12-
    jurisdiction where otherwise none would have existed.          As Djokich
    puts it, "ICE-Boston was aware that [the original] proposal . . .
    did not implicate the United States.          Knowing that [recording
    conversations with the permission of only one party] was unlawful
    in Canada, Dunn instructed Pasciucco to contact Djokich, who was
    still in Canada, and set up a meeting in Boston that could be
    recorded."    Therefore, Djokich argues, the government "imposed
    their jurisdictional agenda" and "defined the terms of the proposed
    crime   itself."    He   maintains     that   prior     to   ICE-Boston's
    involvement, the DeVries scheme did not contemplate any criminal
    activity in the United States and that "[s]teering a case to this
    country in the absence of any factual connection constitutes
    outrageous governmental misconduct" warranting dismissal of the
    indictment.
    Because   Djokich's   motion   to   dismiss    the   indictment
    required an examination of "a substantially complete portion of the
    evidence to be introduced at trial," United States v. Barletta, 
    644 F.2d 50
    , 58 (1st Cir. 1981), the district court deferred ruling on
    the motion until after trial.    The district court then denied the
    motion to dismiss, concluding that the government had not engaged
    in misconduct, "much less outrageous misconduct":
    [A]lthough the court finds that the government
    acted with the intent to cause a crime in
    violation of the laws of the United States to
    occur   where   none  might   have   otherwise
    occurred, it did not engage in outrageous
    misconduct.   There was not any coercion or
    -13-
    abuse by the government of the defendants or
    of anyone else. As the court noted in [United
    States v. Lau Tung Lam, 
    714 F.2d 209
    , 210 (2d
    Cir. 1983)], the government has a legitimate
    interest in identifying and apprehending
    criminals operating abroad who are willing to
    commit crimes in the United States.       The
    decision   whether   to    pursue   such   an
    investigation is a matter for the exercise of
    discretion by officials in the Executive
    branch and does not justify dismissal absent
    some extreme misconduct.
    United States v. Djokich, 
    718 F. Supp. 2d 173
    , 176 (D. Mass. 2010)
    (citations omitted).
    2.    Analysis
    We have not yet had occasion to closely examine the
    concept of manufactured jurisdiction as a subset of the outrageous
    misconduct doctrine.       See United States v. Vasco, 
    564 F.3d 12
    , 20
    (1st Cir. 2009).        We need not make that detailed examination in
    this case because the facts would not remotely justify the defense
    of manufactured jurisdiction.
    Djokich relies largely on United States v. Archer, 
    486 F.2d 670
     (2d Cir. 1973), in which the Second Circuit reversed
    convictions     under   the    Travel Act,    18   U.S.C.   §   1952, because
    evidence showed that a federal agent had crossed state lines to
    place a telephone call to one of the defendants "for the precise
    purpose of transforming a local bribery offense into a federal
    crime."   Id. at 681; see also United States v. Coates, 
    949 F.2d 104
    ,   105-06   (4th    Cir.   1991)    (dismissing   an    indictment   where
    jurisdiction was founded solely on one interstate phone call placed
    -14-
    by a federal agent with no affirmative link between the federal
    element and the defendant's actions); United States v. Brantley,
    
    777 F.2d 159
    , 163 (4th Cir. 1985) (finding that manufactured
    jurisdiction occurred in a gambling case where the only interstate
    activity was the FBI's act of moving gambling machines across state
    lines to establish the gambling front).          Where the "defendant
    freely participates in the jurisdictional act," however, courts
    routinely reject manufactured jurisdiction claims.        United States
    v. Peters, 
    952 F.2d 960
    , 963 & n.6 (7th Cir. 1992) (collecting
    cases).   Indeed, since Archer, the Second Circuit has explicitly
    recognized the doctrine's limited reach:
    Courts have refused to follow Archer when
    there is any link between the federal element
    and a voluntary, affirmative act of the
    defendant.   Thus,   when    confronted   with
    situations in which (i) the [government]
    introduces   a   federal    element   into   a
    non-federal crime and (ii) the defendant then
    takes voluntary actions that implicate the
    federal element, this Court has consistently
    held that federal jurisdiction has not been
    improperly   "manufactured"   and   that   the
    statutory elements have been met, despite the
    surface similarity to Archer.
    United States v. Wallace, 
    85 F.3d 1063
    , 1066 (2d Cir. 1996).
    Here,   while   the   government   first   proposed   that   the
    meeting between Djokich and Pasciucco happen in the United States,
    Djokich readily accepted that invitation and twice traveled to
    Boston in furtherance of the conspiracy.      Moreover, when Pasciucco
    said that he planned to move the location of the kidnaping from the
    -15-
    Bahamas to Florida, Djokich agreed to the revised plan.                            In
    addition, during conversations with Pasciucco, Djokich indicated
    that after dealing with DeVries, he would need Pasciucco's help in
    harming another individual in Detroit.                  Thus, like the district
    court,   we    conclude    that      the    government      provided     Djokich   an
    opportunity to conspire to commit a crime in the United States, and
    he readily seized that opportunity.               Djokich's interactions with
    government agents fell well short of any plausible concept of
    manufactured jurisdiction. See United States v. Ramos-Paulino, 
    488 F.3d 459
    , 462 (1st Cir. 2007) ("We repeatedly have held that the
    simple solicitation of a criminal act or the mere provision of an
    opportunity      to   engage    in    one     does   not    meet   the    threshold
    requirement for a finding of wrongful inducement."); cf. Lau, 714
    F.2d at 210 ("The Government has an entirely legitimate interest in
    identifying and apprehending European drug dealers willing to bring
    narcotics to this country for sale.").                     Without evidence that
    Djokich was      coerced   or     unduly     induced,      or evidence     that the
    government engaged in some other type of outrageous misconduct, we
    agree with the district court's denial of Djokich's motion to
    dismiss the indictment.
    B. Jurisdictional Entrapment Jury Instruction
    Djokich requested that the court give a jury instruction
    explaining jurisdictional entrapment or, as he calls it on appeal,
    entrapment-based       manufactured          jurisdiction.         The     proposed
    -16-
    instruction was not a general entrapment instruction and thus did
    not contemplate an argument that Djokich would not have committed
    the crime at all but for the alleged government misconduct.4
    Instead, Djokich's requested instruction focused on jurisdiction,
    and his claim that the government induced him to commit crimes in
    the United States that he was not otherwise predisposed to commit
    there.   The proposed instruction read as follows:
    Mr. Djokich asserts that he was
    entrapped into committing the offenses in the
    United States, thereby making them federal
    offenses. In other words, he asserts that he
    was not predisposed to commit those crimes in
    the United States and that he would not have
    done so but for the improper inducement of the
    government or third parties acting on the
    government’s    behalf.         Jurisdictional
    entrapment, it is not actually a defense per
    se, because once raised by a defendant, as Mr.
    Djokich has done, the government bears the
    burden of proving beyond a reasonable doubt
    that he was not jurisdictionally entrapped.
    To do this, the government must prove
    beyond a reasonable doubt either: 1) no
    government agent, or person acting on behalf
    4
    The district court stated that if Djokich had requested a
    general entrapment instruction, it would have permitted Lenz to
    testify about Djokich kidnaping him and making threats to his life
    and the lives of his family members. In the court's view, such
    evidence would have been relevant to Djokich's intent, motive,
    common scheme or plan, see Fed. R. of Evid. 404(b), and would have
    been, as the district court said, "quite probative of Mr. Djokich's
    predisposition to conspire and kidnap . . . [and] to conspire to
    kill his kidnap[]ing victims."       Because Djokich requested a
    jurisdictional entrapment instruction instead of a general
    entrapment instruction, the district court excluded Lenz's
    testimony pursuant to Federal Rule of Evidence 403, which permits
    exclusion of evidence whose "probative value is substantially
    outweighed by [the] danger of . . . unfair prejudice."
    -17-
    of or under the auspices of the government
    persuaded or induced the defendant to travel
    in interstate or foreign commerce and use the
    means, facilities and instrumentalities of
    interstate or foreign commerce such as would
    create jurisdiction in the United States; or
    2) Mr. Djokich was ready and willing to commit
    the charged crimes in the United States
    without any persuasion from the government,
    its agents, or a person acting on behalf of or
    under the auspices of the government.5
    A criminal defendant is entitled to an instruction on the
    proposed theory of defense when the theory is a valid one, United
    States v. Rodríguez, 
    858 F.2d 809
    , 812 (1st Cir. 1988), and the
    "evidence adduced at trial, taken in the light most flattering to
    the    accused,     .   .   .   plausibly       support[s]   the   theory."
    Ramos-Paulino, 488 F.3d at 461.           The initial burden rests on the
    defendant to not only raise the defense, but also to identify
    evidence in the record that supports the theory of defense.            Id. at
    462.       After the defendant has made that threshold showing, the
    burden shifts to the government to prove beyond a reasonable doubt
    that either       the   defendant   was   not    wrongfully induced   or   the
    5
    Djokich's proposed instruction was an inaccurate account of
    what would constitute inappropriate persuasion or inducement by the
    government, as it suggests that any inducement by the government is
    inappropriate. That is not the case; a defendant is only entrapped
    where the government utilizes wrongful persuasion or inducement.
    See United States v. DePierre, 
    599 F.3d 25
    , 27-28 (1st Cir. 2010)
    (approving entrapment instruction stating that the government must
    prove that the government agent "did not improperly persuade or
    talk the defendant into committing the crime.        Simply giving
    someone an opportunity to commit a crime is not the same as
    improperly persuading him, but excessive pressure by the
    [government agent] can be improper." (emphasis added)).
    -18-
    defendant had a predisposition to engage in such conduct absent the
    inducement.     DePierre, 599 F.3d at 27 (stating that "[g]iven the
    burden-shifting, the term 'defense' may be thought to understate
    the government's full burden . . .[, but] in practical terms the
    [entrapment] defense is difficult for the defendant because the
    threshold that must be met to show wrongful inducement is a high
    one").6    In determining whether the theory of defense is supported
    by the record, the district court may not weigh the evidence or
    make credibility determinations.        Rodríguez, 858 F.2d at 812.
    Because the district court's decision is an inquiry into the legal
    sufficiency of the evidence, our review is de novo.     Id.
    Djokich modeled his proposed instruction, inaccurately,
    on the type of instruction given in general entrapment cases, and
    we examine it under the same rubric.        As noted, the defense of
    entrapment requires the defendant to first make a threshold showing
    on two elements: (1) wrongful inducement of the defendant to engage
    in criminal conduct, and (2) the defendant's lack of predisposition
    to engage in such conduct.     West v. United States, 
    631 F.3d 563
    ,
    567 (1st Cir. 2011).     As discussed, Djokich essentially adds "in
    the United States" to the end of each element.       Even assuming –
    without deciding – that jurisdictional entrapment is a cognizable
    defense at trial, Djokich did not make the requisite threshold
    showing of inducement. The only evidence on inducement showed that
    6
    See supra note 5.
    -19-
    Saffiedie twice told Djokich that someone was available to meet
    with Djokich in the United States.      Djokich assented to both
    meetings in Boston. Pasciucco told Djokich that the crimes Djokich
    was conspiring to commit needed to be moved from the Bahamas to the
    United States.   Djokich did not protest the venue change; rather,
    he readily agreed on two separate occasions.
    In light of Djokich's voluntary participation in the
    jurisdictional act, we need not address the predisposition aspect
    of entrapment, as Djokich has plainly failed to satisfy his burden
    to make a threshold showing of inducement. See Rodríguez, 858 F.2d
    at 814. Accordingly, the district court did not err in refusing to
    give Djokich's proposed jurisdictional entrapment jury instruction.
    Affirmed.
    -20-