          United States Court of Appeals
                     For the First Circuit


No. 11-2083

                         UNITED STATES,

                            Appellee,

                               v.

                         FERMIN GUEVARA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS


          [Hon. Joseph L. Tauro,    U.S. District Judge]



                             Before

                   Thompson, Selya and Lipez,

                         Circuit Judges.


     Elizabeth Doherty for appellant.
     Mark T. Quinlivan, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.



                        January 28, 2013
          LIPEZ, Circuit Judge.       Appellant Fermin Guevara was

convicted on drug charges that arose from a reverse sting operation

set up by law enforcement authorities in Massachusetts after

Guevara talked with an informant in Peru about purchasing cocaine

there for sale in Boston.     On appeal, Guevara argues that the

district court's conspiracy instruction was inadequate and that the

court erred in failing to instruct the jury on the defenses of

withdrawal and entrapment.    We find no flaw in the conspiracy

instruction and no error in the failure to instruct on either

affirmative defense.   Hence, we affirm.

                                I.

          The facts, as supported by the record, are as follows.

Appellant Guevara regularly traveled from Boston to Peru to visit

family and friends.     While in Peru in November 2008, he was

introduced to Patricia Lecaros-Velasquez, an interior designer who

had worked as a paid informant for both the Drug Enforcement

Administration ("DEA") and the equivalent Peruvian drug agency.

Lecaros-Velasquez testified that the mutual friend who introduced

them did not know that she was a drug informant, and the meeting

was not set up to discuss drug dealing.    The friend, however, had

told Lecaros-Velasquez that he had once lived with Guevara in

Boston and that drugs had been sold from the house where they

lived.




                                -2-
            In their first meeting, at the Haiti Restaurant in

Miraflores, Guevara told Lecaros-Velasquez that he had traveled to

Peru to     find    a   supplier    for    "chickens"    and     "animals,"     which

Lecaros-Velasquez understood as coded references to drugs.                        She

offered to introduce Guevara to a supplier, and Guevara then made

a phone call to his boss, whom he called "Peluche."                          Lecaros-

Velasquez also spoke briefly with Peluche, later identified as

Victor Jaramillo-Arezia ("Victor"), who asked when she could "come

up" to    the     United   States so      they   could     discuss    "interesting

things." At the end of the meeting, Guevara gave Lecaros-Velasquez

his phone number and later gave her Victor's as well.

            Guevara and Lecaros-Velasquez met again at the Haiti

Restaurant on January 31, 2009.             By that time, Lecaros-Velasquez

had contacted Peruvian authorities, who conducted surveillance and

videotaped the meeting while she secretly made an audio recording.

The pair were joined by a third individual, introduced to Guevara

as Lecaros-Velasquez's associate "Pedro," whom she said was closer

to the source of the cocaine.              In fact, Pedro was another paid

government informant.        Lecaros-Velasquez told Guevara that she had

spoken with Victor by phone, and Guevara responded, "Yes, he's my

partner."

            The    trio    then    discussed     setting    up    a   drug    dealing

operation in which Guevara and Victor would regularly buy cocaine

in Peru for sale in Boston.          Although the word "cocaine" was never


                                          -3-
used in the conversation, there is no dispute that it was the

subject of their lengthy exchange. Guevara initially told Lecaros-

Velasquez that, "over there we, in our area we move fifty (50) or

more animals," which Lecaros-Velasquez understood as an assertion

that he and Victor could sell fifty kilograms of cocaine in the

Boston area.     Later in the conversation, Guevara said that they

could handle fifty "animals" weekly, but they would need delivery

to New York or Boston.1     He warned that "we'll be checking each

animal, one at a time," because "[a]ny work we don't like, we throw

back."     The check was best done upon delivery, he explained,

"because sometimes along the way you don't move it, someone else

moves it and it has happened in Medellin, that has happened."   The

implication was that checking upon delivery was necessary because

the product shipped was not always the product delivered.2

            Before getting the enterprise fully underway, Guevara

proposed a small transaction "[w]ith one (1) animal, two (2), three

(3), whatever there is," to "break the ice" and "[t]o gain trust"

in the relationship.    He assured the others that he would stay in



     1
       Pedro asked if Guevara was "capable of receiving fifty (50)
a week from us," to which he responded: "Yes. We are capable."
     2
         Guevara elaborated on the concern as follows:

     Unfortunately, we don't trust on that side.      Because
     sometimes you don't move it, the [unintelligible] move
     it, a lot of people move it, you know? So when they move
     it, it arrives moved. So it's better to check everything
     there. Not to check it here. That's the problem.

                                 -4-
Peru "[u]ntil the deal is closed," but urged them to act quickly so

it could happen before his planned departure in a few days.   In a

call to Victor, Guevara secured the okay for "size 24," referring

to the $24,000-per-kilogram price that Pedro had just offered:

          PEDRO: In Boston, right? I can guarantee the
          quality . . . at twenty-four (24).
          GUEVARA: Twenty-four (24).
          PEDRO: I guarantee you the quality and the
          purity . . . .

          . . . .

          [PHONE CONVERSATION: Hello, Papo? Uh, listen,
          buddy, the pants are small, man, size 22, uh,
          so the, seamstress wants 24, size 24. Is size
          24 alright? Do you agree?     Is it alright?
          Hello, hello . . .] My service went down.
          Okay, but, he did tell me yes, that there is
          no problem.
          PEDRO: Yeah.
          GUEVARA:    Let's do it.    Let's do it with
          twenty-four (24).   Let's do it with twenty-
          four (24). Put down there what you can, what
          you have [unintelligible] one (1) . . . Put it
          down.   There is no problem.     Put it down,
          brother.

          A third meeting was scheduled for February 3, also at the

Haiti Restaurant, but Guevara failed to appear.      When Lecaros-

Velasquez eventually reached him by phone after repeatedly calling,

Guevara said he was not coming because he was drinking.    Lecaros-

Velasquez called Victor, who said he also had not spoken to Guevara

"because I called him and he isn't answering."    Victor confirmed

the $24,000 price. Lecaros-Velasquez had no subsequent interactions

with Guevara about the drug operation, thereafter dealing only with

Victor.

                               -5-
           Sometime in February, Boston DEA agents were alerted to

the planned cocaine importation enterprise by a DEA office in Peru,

and they set up a reverse sting operation.3            A DEA Task Force

officer posing as an associate of Lecaros-Velasquez, and using the

name "Mario," contacted Victor to make arrangements to supply the

Peruvian cocaine.    On February 13, the officer, Detective Luis

Rodriguez of the Chelsea (Massachusetts) Police Department, met

with Victor and another individual in the parking lot of the South

Bay Shopping Center in Dorchester. The men, sitting in Rodriguez's

car, agreed to a transaction of ten kilograms at a price of $24,000

per kilo, and further agreed that they would be in touch again when

the cocaine was ready for delivery.         At the conclusion of the

meeting, Victor and the third man, identified only as "Don Miguel,"

exited Rodriguez's   vehicle   and   got   into   a   cab   registered to

Guevara.

           In a phone call on February 23, Rodriguez and Victor

arranged to meet the following day in a Wendy's parking lot in East

Boston. Rodriguez reported that he would be bringing the "ten keys

for the apartments," code for the ten kilos of cocaine.          The next

day, Victor and Rodriguez met at the Wendy's lot, but then agreed

to move the transaction to a Home Depot parking lot in Saugus,



     3
       Ordinary sting operations involve the attempted purchase of
drugs by undercover agents. In a reverse sting, agents offer to
sell drugs to their targets. United States v. Meises, 645 F.3d 5,
8 n.2 (1st Cir. 2011).

                                 -6-
Massachusetts, where there were no security cameras.                         Guevara

dropped Victor off at Wendy's, but did not participate in the

conversation.

            Later the same day, with a law enforcement surveillance

team videotaping the encounter, Victor arrived at the Home Depot

accompanied by Alexander Lopera and Guevara, the latter having

driven the men in his taxi.           Victor entered Rodriguez's vehicle

carrying a red backpack, but the men left the car and entered the

store    after   Victor     expressed     concern    about      transferring      the

backpack full of cash in the vehicle.              A few minutes later, Victor

handed Rodriguez the backpack as they walked up an aisle in the

store.     Guevara    and    Lopera   approached         as   Rodriguez,    who   was

carrying a concealed audio recorder, stood at the end of the aisle

inspecting the backpack's contents -- a plastic bag containing

bundles of cash wrapped in rubber bands.             Victor introduced Lopera

as his brother and Guevara as his friend. Rodriguez testified that

the four men then discussed the details of the cocaine transfer,

agreeing that Rodriguez would stay with Victor while Lopera got

into the vehicle that would be bringing the drugs so he could check

on   the   quantity       and   quality       of   the    cocaine.         Rodriguez

acknowledged, however, that the conversation that took place in

Guevara's presence did not specifically refer to either a money

exchange or drug quantity and quality, but focused solely on who

would be leaving the parking lot with whom and in which car.


                                        -7-
           The four men exited the Home Depot together and walked

toward an undercover vehicle driven by Task Force Officer Jaime

Cepero, whom Rodriguez had summoned while the men were in the

store.4   Ten wrapped blocks shaped to resemble kilograms of cocaine

had been placed in a hidden compartment in the back of the vehicle.

From the driver's side, Rodriguez, Victor, and Guevara looked into

the backseat, where the hidden compartment had been opened, and

Guevara then    immediately   started   walking   back   to   his   taxi.

Rodriguez and Victor headed toward Rodriguez's vehicle, while


     4
       Shortly after Rodriguez proposed that he and Victor drive
around in Rodriguez's car while the cocaine was being checked out,
the conversation continued, in pertinent part, as follows:

     LOPERA: So do we leave?
     GUEVARA: No, wait, because he is going to leave in the
     car.
     LOPERA: That's why, I'll leave with him.
     GUEVARA: Yes, they are going to go.

     . . . .

     RODRIGUEZ: Are the two of you going to get in or just
     one? The two of you?
     GUEVARA: No. One.
     RODRIGUEZ: Oh, just one.
     LOPERA: I'm going to [unintelligible] with him.

     . . . .

     CEPERO: Does he go with me?
     RODRIGUEZ: He goes with you, yes.
     GUEVARA: Yes, he'll go with.

     . . . .

     CEPERO: Shall we go?
     LOPERA: Let's go.
     RODRIGUEZ: We are going to wait for you guys out here.

                                  -8-
Lopera remained standing on the passenger side of Cepera's vehicle.

Moments later, Guevara, Victor, and Lopera were arrested. The Task

Force officers seized $80,020 from the red backpack.

           All    three       men   were   charged     in   federal   court    in

Massachusetts on two counts: conspiracy to both possess with intent

to   distribute    and   to    distribute    cocaine    (Count   One),   see   21

U.S.C. § 846, and attempted possession with intent to distribute

cocaine (Count Two), see id. §§ 841(a)(1), 846. Guevara and Lopera

were tried jointly, and the jury convicted them on both counts.

Victor pleaded guilty to both counts.           This appeal is brought only

by Guevara, who was sentenced to fifty months' imprisonment and

three years of supervised release.5

           Guevara asserts three prejudicial instructional errors.

We consider each in turn.

                                       II.

           Appellant argues that the district court's conspiracy

instruction gave the jury the incorrect impression that it could

find him guilty on Count One even though the evidence failed to

show a meeting of the minds between him and any alleged co-

conspirator.      Specifically, he complains that the court erred in

refusing to instruct the jury that negotiations to engage in a

criminal scheme do not establish the agreement required to prove a


      5
       Lopera was sentenced to a term of sixty months' imprisonment
and Victor received a sentence of fifty months' imprisonment. Both
men were sentenced to five years of supervised release.

                                       -9-
conspiracy.   He maintains that such an instruction was necessary

because his defense was premised in part on the contention that his

discussions with Lecaros-Velasquez never matured into an agreement

to deal drugs.6

          The district court's initial charge to the jury defined

a conspiracy as "an agreement or mutual understanding knowingly

made or knowingly entered into by at least two persons to violate

the law through some joint or common plan or course of action."

The court went on to explain that, to find the defendants guilty of

conspiracy, the jury needed to conclude that the government had

proven two facts beyond a reasonable doubt:

                 First, that the agreement alleged
          existed between the defendants and at least
          one other person to possess with intent to
          distribute or to distribute a controlled
          substance.

                 Second, that the defendant whose case
          you are considering willfully joined in that
          agreement.    A conspiracy is an agreement,
          spoken or unspoken.    A conspiracy does not
          have to be a formal agreement or plan in which
          everybody involved sat down together and
          worked out all the details but the government
          must prove beyond a reasonable doubt that



     6
       In a pre-trial filing, Guevara proposed, in pertinent part,
the following instruction:

     The government also must prove beyond a reasonable doubt
     that an agreement (even if not a formal one) was in fact
     reached.   If the defendant negotiated with others to
     carry out an illegal [act], but the defendant did not
     reach or was not part of an agreement to carry out an
     illegal act, he can not be found guilty of conspiracy.

                               -10-
           those who were involved shared               a   general
           understanding about the crime.

                  Mere   similarity   of  conduct among
           various people or the fact that they may have
           associated with each other or discussed common
           aims and interests does not necessarily
           establish proof of the existence of a
           conspiracy but you may consider such factors.

The court also stressed the need to identify evidence of each

defendant's own participation:

                  Proof that the defendant willfully
           joined in the agreement must be based upon
           evidence of his own words or actions.    You
           need not find that the defendants agreed
           specifically to the crime or knew all the
           details of it or knew every other co-
           conspirator or that he participated in each
           act of the agreement or played a major role
           but the government must prove beyond a
           reasonable doubt that the defendant knew the
           essential features and general aims of the
           venture.

           Following the charge, Guevara renewed his request for an

"instruction that mere negotiations are not sufficient, that talk

is not enough, there must be a meeting of the minds all in

connection with the conspiracy."          In rejecting the request, the

court noted that it considered the point "covered . . . properly in

my   instructions."     However,    after    the     jurors     asked   during

deliberations   for   additional    guidance       on   the    definition   of

conspiracy,7 the court responded to the jurors' query as follows:



     7
       The jurors asked: "Can you give us clarification on what is
a conspiracy, how to define it? Specifically if people show up
together, does that constitute conspiracy?"

                                   -11-
                 A conspiracy simply stated is an
          agreement to disobey or disregard a particular
          law. An agreement to disobey or disregard a
          particular law. That is what a conspiracy is,
          an agreement to disobey or disregard a
          particular law.

                 You asked specifically if people show
          up together, does that constitute conspiracy?
          The answer to that question is no, not
          necessarily.   People may talk together and
          they show up together but the question for you
          as far as conspiracy is whether there is an
          agreement to violate or disregard the law, not
          whether they just happened to be at a
          particular place at a particular time, okay.

          Guevara points to the jury's request for assistance as

evidence that the court's original conspiracy instruction did not

adequately explain the difference between preliminary discussion

and an actual meeting of the minds.   He insists that the agreement

to engage in an ongoing cocaine purchase-and-sale scheme was

reached by Victor and the undercover agents after he was out of the

picture, and he asserts that "a properly instructed jury might well

have reached a different result."

          It is well established that "a court 'need not give

instructions in the precise form or language requested by the

defendant.'"   United States v. Sampson, 486 F.3d 13, 37 (1st Cir.

2007 (quoting United States v. Beltran, 761 F.2d 1, 11 (1st Cir.

1985)).   Moreover, although a defendant ordinarily is entitled to

an instruction reflecting his theory of the case, the refusal to

adopt proposed language "is not ground for reversal where the

court's instruction substantially covers the request."      United

                               -12-
States v. Noone, 913 F.2d 20, 30 (1st Cir. 1990); see also United

States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009).      We review for

abuse of discretion a properly preserved objection to "'the form

and wording'" of an instruction, Gonzalez, 570 F.3d at 21 (quoting

United States v. McFarlane, 491 F.3d 53, 59 (1st Cir. 2007)),

including whether the instruction "'adequately explained the law or

. . . tended to confuse or mislead the jury on the controlling

issues,'" United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir. 2010)

(quoting United States v. Silva, 554 F.3d 13, 21 (1st Cir. 2009)).

           Appellant's claim of error does not scale the necessary

hurdles.   Guevara wanted the jurors to be told that he could not be

convicted of conspiracy if they found that he participated only in

negotiations for a drug importation scheme and not in an agreement

to move ahead with the operation.      That is, in essence, what the

court told them.   Although the court's charge did not explicitly

state that something more than negotiations was necessary to form

a conspiracy, the court repeatedly instructed that guilt on the

conspiracy count required "an agreement or mutual understanding" to

violate the law.     The court's original instruction succinctly

defined a conspiracy as "an agreement, spoken or unspoken," and its

follow-up instruction re-emphasized that a conspiracy requires "an

agreement to violate or disregard the law."

           We   recognize    that      an   instruction     explicitly

distinguishing negotiations from an agreement would have been


                                -13-
preferable from Guevara's perspective, and such an instruction

would have been proper.     A rational jury, however, would be

unlikely to confuse the preliminary nature of "negotiations" with

the meeting of the minds necessary for an "agreement." The court's

instruction therefore adequately conveyed to the jury that Guevara

could not be found guilty of conspiracy if his involvement in the

drug dealing scheme was limited to the negotiations that preceded

an "agreement."

          Hence, we find no abuse of discretion in the district

court's choice of language for the conspiracy instruction.

                               III.

          Asserting that he was entitled to a jury instruction on

any valid defense theory supported by the record, Guevara argues

that the district court erred in refusing to instruct the jury that

withdrawal is a defense to a conspiracy charge and failing to

instruct on entrapment sua sponte.    Guevara correctly states the

governing principle, see, e.g., United States v. Sherman, 551 F.3d

45, 52-53 (1st Cir. 2008) (noting criminal defendant's entitlement

to instruction), but, as we shall explain, his withdrawal claim is

flawed as a matter of law and his entrapment claim falters on the

record before us.

A. Withdrawal

          Guevara proposed a jury instruction on withdrawal that

included the following statement:


                               -14-
               If you find that defendant withdrew from the
               conspiracy, you must find him not guilty, even
               if the defendant was later in the presence of
               any other conspirator, so long as defendant
               did not rejoin the conspiracy.

On appeal, Guevara reiterates his contention that withdrawal was a

viable defense to the conspiracy charge and asserts that he was

entitled to an instruction on that theory.                This claim is a

nonstarter.        "Far from contradicting an element of the offense,

withdrawal presupposes that the defendant committed the offense."

Smith v. United States, No. 11-8976, 2013 WL 85299, at *3 (U.S.

Jan. 9, 2013).        Thus, even upon withdrawal, a defendant "remains

guilty of conspiracy."         Id.; see also id. at *6 ("His individual

change of heart . . . could not put the conspiracy genie back in

the bottle.").8

               A   defendant   charged    with   conspiracy   may   pursue     a

withdrawal theory, however, to "achieve[] [a] more modest end[]

than       exoneration,"   i.e.,   to    avoid   responsibility     for    post-

withdrawal activities of his co-conspirators.           Id. at *3.    Guevara

offers no such rationale for a withdrawal instruction.                    Indeed,

Guevara's only developed argument is that the instruction was

essential to his "key defense theory" that he withdrew from the

negotiations before an agreement for a drug deal had been reached.



       8
       Withdrawal may provide a complete defense when it occurs
outside the applicable statute-of-limitations period. See Smith,
2013 WL 85299, at *2. There is no statute-of-limitations issue in
this case.

                                        -15-
But that theory seeks a finding that Guevara was never a member of

the conspiracy at all -- a circumstance inconsistent with the

concept of "withdrawal."

           Guevara has thus failed to offer a proper justification

for a withdrawal instruction, defeating his claim of error.9

B. Entrapment

           Guevara neither requested an entrapment instruction nor

objected contemporaneously to the omission of such an instruction

from the court's charge, and he thus must demonstrate plain error

in the district court's failure to instruct the jury on that

defense.   See United States v. Appolon, 695 F.3d 44, 59-60 (1st

Cir. 2012).     He is unable to show any error at all, however, let

alone one that "seriously impaired the fairness, integrity, or

public reputation" of his trial.   Id. at 60 (listing this showing,

among others, as necessary to establish plain error).



     9
       The record was in any event inadequate to permit a finding
of withdrawal. To prove withdrawal from a conspiracy, a defendant
must show that he took affirmative steps "either to defeat or
disavow the purposes of the conspiracy."     See United States v.
Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per curiam).
"Typically, there must be evidence either of a full confession to
authorities or a communication by the accused to his co-
conspirators that he has abandoned the enterprise and its goals."
Id. As evidence of withdrawal, Guevara relies on his failure to
appear for the February 3 meeting and his refusal to answer
telephone calls from Lecaros-Velasquez and Victor.           These
behaviors, however, constitute inaction rather than affirmative
steps to distance himself from his prior involvement. See, e.g.,
Smith, 2013 WL 85299, at *5 ("Passive nonparticipation in the
continuing scheme is not enough to sever the meeting of the minds
that constitutes the conspiracy.").

                                -16-
          To be entitled to an entrapment instruction, a defendant

has the burden to "'adduce "some hard evidence"'" both that the

government induced him to commit the charged crime and that he

lacked a predisposition to commit the offense.       United States v.

Dávila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012) (quoting United States

v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009) (quoting United States v.

Shinderman, 515 F.3d 5, 13 (1st Cir. 2008))).       Inducement entails

not only giving the defendant the opportunity to commit the crime,

but also the "'"plus"' factor" of government overreaching.       Id. at

10 (quoting Vasco, 564 F.3d at 18 (quoting United States v.

Gendron, 18 F.3d 955, 961 (1st Cir. 1994))). Qualifying government

conduct   includes   excessive   pressure,   such    as   the   use   of

intimidation, threats, or "dogged insistence," Vasco, 564 F.3d at

18, and "taking advantage of an alternative, non-criminal type of

motive," Gendron, 18 F.3d at 961.

          We view the evidence in the light most favorable to

Guevara in determining whether the record supports an entrapment

theory.   See Vasco, 564 F.3d at 18.    From that perspective, the

jury could have plausibly concluded that Lecaros-Velasquez set up

the first meeting with Guevara in the hope that she could lure him

into a sham drug deal.   She knew that drugs had been sold from a

house in Boston where he had lived, indicating that he might be a

susceptible target. Guevara, however, was the one who first raised

the subject of drugs when he told Lecaros-Velasquez that he had


                                 -17-
traveled   to   Peru   in   pursuit    of    a   source    for   "chickens"   and

"animals."      Despite this affirmative expression of interest in

buying drugs, Guevara argues that Lecaros-Velasquez's immediate

offer to connect him with a supplier and her subsequent conduct in

arranging meetings and initiating phone contact improperly induced

him into the scheme.

           These actions by Lecaros-Velasquez, though facilitating

Guevara's participation in the enterprise, do not reach the

threshold of aggression required for inducement.                 Rather than the

threats,   "dogged     insistence,"     or       similar   excessive   pressure

necessary to establish government overreaching, id., they amount to

no more than "the simple solicitation of a criminal act" that we

repeatedly have held inadequate to support a finding of wrongful

inducement, United States v. Ramos-Paulino, 488 F.3d 459, 462 (1st

Cir. 2007); see also Dávila-Nieves, 670 F.3d at 11 ("'[N]either

mere solicitation nor the creation of opportunities to commit an

offense comprises inducement as that term is used in entrapment

jurisprudence.'" (quoting United States v. Gifford, 17 F.3d 462,

468 (1st Cir. 1994))).       Clearing the way for criminal activity is

not the same as pushing the defendant down a pathway toward crime.

           Because the record thus lacks evidence of the requisite

"something more" for inducement, an entrapment instruction was not

warranted.      Ramos-Paulino, 488 F.3d at 462.             Although Guevara's

inability to support his claim of inducement makes it unnecessary


                                      -18-
for us to consider the issue of predisposition, id. at 462 n.1; see

also Vasco, 564 F.3d at 20, we note that the record evidence

described above leaves no doubt that his claim also would stumble

on that prong of the entrapment inquiry.     In sum, the district

court did not commit reversible error in failing to instruct the

jury on entrapment.

                               IV.

          Having found no merit in any of appellant's claims of

instructional error, we affirm the judgment of the district court.

          So ordered.




                               -19-
