Filed: Aug. 29, 2012
Latest Update: Mar. 26, 2017
Summary: Pasciucco. But [DeAngelis] told me he wants [DeVries] done.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.
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
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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
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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.
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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
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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
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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
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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
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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
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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."
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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)).
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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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