                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1052
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the District of
Sylvan Anthony Pinque,                   * Minnesota.
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 17, 2000

                                   Filed: December 8, 2000
                                    ___________

Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

        Sylvan Pinque was convicted on two counts of distributing cocaine base (crack)
and two counts of conspiring to distribute and to possess crack with the intent to
distribute it. See 21 U.S.C. § 841(a)(1), § 846. Mr. Pinque maintains on appeal that
the trial court incorrectly instructed the jury on the conspiracy charges and that there
was insufficient evidence of his predisposition to commit these crimes. We affirm.
                                            I.
       Mr. Pinque first maintains that the trial court erred in instructing the jury on the
conspiracy charges. We would normally review the relevant instructions for plain
error, since Mr. Pinque did not object to them in the trial court. See United States v.
Johnson, 114 F.3d 808, 814 (8th Cir. 1997). The government contends, however, that
Mr. Pinque proposed the very jury instructions to which he now objects, and, if this is
true, Mr. Pinque would of course have waived his right to object to them. See United
States v. Olano, 507 U.S. 725, 732-33 (1993); see also United States v. Lakich, 23
F.3d 1203, 1207 (7th Cir. 1994). But Mr. Pinque's proposed instructions are not on the
record, so we are obliged to reject the government's contention.

       Mr. Pinque asserts that the trial court confused the jury by misdescribing the
charges against him. While instructing the jury on the two conspiracy counts, the trial
court stated that "[i]n order to sustain its burden of proof for the crime of possession
of a controlled substance with intent to distribute, ... the Government must prove
[certain] elements" (emphasis supplied). Because the counts for which the instruction
was given actually charged conspiracy, the failure to mention conspiracy in this context
was an obvious error.

       In order for this plain error to be reversible, however, it must have affected
Mr. Pinque's substantial rights. See United States v. Young, 223 F.3d 905, 908 (8th
Cir. 2000). We do not think that this happened in his case because it appears to us that
it would have been impossible for the jury not to understand that Mr. Pinque was
charged with conspiracy in the relevant counts. Three sentences before the one quoted
above, the trial court's instructions stated that "[c]ounts 3 and 4 of the indictment charge
the defendant with conspiracy." Conspiracy was also mentioned in the sentences
immediately before and after the sentence to which Mr. Pinque objects. We must
evaluate individual jury instructions in the context of the entire charge. See United
States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000). Looking at the entire charge, the


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instructions indicated quite clearly that Mr. Pinque was charged with two counts of
conspiracy, and thus we hold that his rights were not adversely affected by the error.

                                            II.
       The trial court instructed the jury that in order to convict Mr. Pinque of
conspiracy the government had to prove that he "conspired to possess ... cocaine base
crack," that he "knew that this substance was a controlled substance," and that he
"intended to distribute this controlled substance." Mr. Pinque contends that this
instruction was erroneous because the indictment charged him with a conspiracy to
distribute and to possess with the intent to distribute, while the instructions describe
only a conspiracy to possess with the intent to distribute. He asserts that this
instruction allowed the jury to convict him without finding that he had entered into a
conspiracy to distribute. Even if this is true, however, there was no prejudicial error:
When more than one violation is charged conjunctively in an indictment, proof of any
of the violations will sustain the conviction. See United States v. Vickerage, 921 F.2d
143, 147 (8th Cir. 1990).

       Mr. Pinque also asserts that the instructions erroneously failed to state that the
conspiracy with which he was charged encompassed an agreement to distribute. It is
true that the instructions used the word "conspired" only in stating that the defendant
must have conspired to possess crack, while not explicitly stating that he must also
have conspired to distribute. The jury was instructed, however, that the two relevant
counts charged that "the defendant knowingly conspired with other persons ... to
intentionally possess ... cocaine base crack, a controlled substance, with intent to
distribute that substance." The jury was also properly instructed on the definitions of
"conspiracy," "possess," and "distribute." As we have said, in evaluating jury
instructions we look to whether, when taken as a whole, they fairly and adequately
submitted the issue to the jury hearing the case. See United States v. Beckman, 222
F.3d 512, 520 (8th Cir. 2000). We believe, without reservation, that the jurors here


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understood that in order to convict Mr. Pinque they had to determine that he was part
of a conspiracy both to possess and to distribute crack.

                                             III.
        Mr. Pinque's final challenge to the jury instructions is that the trial court failed
to state that in order to convict him of conspiracy, the jury had to find that he conspired
with at least one person who was not a government agent. "It is of course a well-
established rule that 'there can be no indictable conspiracy involving only the defendant
and government agents and informers,' " United States v. Rios, 171 F.3d 565, 566 (8th
Cir. 1999), quoting United States v. Nelson, 165 F.3d 1180, 1184 (8th Cir. 1999).
Mr. Pinque, however, never argued at trial that government agents were his only
co-conspirators. Nor did he request such an instruction or object to the absence of such
an instruction. We therefore review the omission of the instruction for plain error. See
United States v. Jorgensen, 144 F.3d 550, 560 (8th Cir. 1998).

       "There is plain error if the omitted instructions should have been given and the
error affected the defendant's 'substantial rights,' " id., quoting Olano, 507 U.S. at 736.
Mr. Pinque's substantial rights were not affected by the absence of this instruction,
because the jury heard a great deal of evidence tending to show that Mr. Pinque
conspired with at least one person who was not a government agent during each
conspiracy for which he was convicted.

      With respect to the first conspiracy, an informant testified that, at Mr. Pinque's
request, he received crack from a girlfriend of Mr. Pinque's while Mr. Pinque was
present. The informant further testified that this girlfriend was a common source of
drugs for Mr. Pinque. The same informant testified regarding the second conspiracy
as well, indicating that he went with Mr. Pinque to another girlfriend's house to obtain
more crack. An undercover police officer indicated that this same girlfriend was
present when he purchased crack from Mr. Pinque later that day, and that the girlfriend
was in fact carrying the crack. We believe that it is clear that the instruction that

                                            -4-
Mr. Pinque now requests could not have changed the outcome of his trial, and thus that
his substantial rights were not violated by its omission.

                                            IV.
       Mr. Pinque argued at trial that he was entrapped, having sold crack only because
an undercover police officer asked for it, and the trial court gave an instruction
appropriate to an entrapment defense. For Mr. Pinque to have been entitled to an
entrapment instruction, however, he would first have had to show that a government
agent induced him to commit the crimes. See United States v. Berg, 178 F.3d 976, 980
(8th Cir. 1999). We think that Mr. Pinque failed to make this initial showing, as he
cannot establish inducement merely by showing that the government " 'solicited,
requested or approached [him] to engage in criminal conduct,' " United States v. Van
Slyke, 976 F.2d 1159, 1162 (8th Cir. 1992), quoting United States v. Ortiz, 804 F.2d
1161, 1165 (10th Cir. 1986). In this case, Mr. Pinque immediately indicated his
willingness to sell cocaine to the undercover police officer in response to an inquiry by
the officer. While the officer may have asked for the cocaine several times, this was
in response to a delay in obtaining the drugs and not due to any reluctance shown by
Mr. Pinque. We hold, therefore, that Mr. Pinque was not entitled to have an
entrapment defense submitted to the jury.

       There was, moreover, more than sufficient evidence before the jury to support
a finding of predisposition on Mr. Pinque's part. Although the government must prove
predisposition beyond a reasonable doubt, we review the evidence with respect to
predisposition in the light most favorable to the government. See United States v.
Brooks, 215 F.3d 842, 845 (8th Cir. 2000). There was evidence that Mr. Pinque's
previous involvement with drug dealing was extensive. During his first meeting with
the undercover police officer, for instance, Mr. Pinque boasted about his ability to
obtain large amounts of cocaine. Witnesses testified that he was an experienced drug
dealer and that he was quite familiar with the methods of drug dealers. He gave the
undercover police officer a code number for paging him to purchase drugs; he also

                                          -5-
showed his knowledge of cocaine by advising the officer that he should not purchase
crack that had been mixed with too much baking soda. This evidence is more than
sufficient to support a finding that Mr. Pinque was predisposed to deal crack.

                                         V.
      For the foregoing reasons, we affirm the judgment of the trial court.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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