          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.

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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.




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