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.
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