dissenting.
As to the grandfather, Jack Pardue, the district court wrote:
The evidence shows that Jack Pardue did not participate in any of this plan except to aid his entrapped grandson in carrying out what had been largely directed by Gary Danzer. There is also no indication from the evidence that there was any intent for Jack Pardue to become involved until Gary Danzer set out to make him become involved through the various artifices employed by him described above. In short, if Jack Par-due had any intent to commit the crimes for which he was convicted, that intent was also placed in his mind by the actions of Danzer utilizing Michel. Thus, the court finds that Jack Pardue was also entrapped as a matter of law.
There is no evidence that Jack Pardue was part of the original conspiracy agreement, let alone predisposed to commit this crime. The essence of conspiracy is the agreement to commit an illegal act, United States v. American Grain & Related Indus., 763 F.2d 312, 315 (8th Cir.1985), and proof of a tacit understanding is sufficient to show a common plan. United States v. Hoelscher, 914 F.2d 1527 (8th Cir.1990), cert. denied, Giuffrida v. United States, — U.S. -, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991) and cert. denied, Meriwether v. United States, — U.S. -, 111 S.Ct. 2240, 114 L.Ed.2d 482 (1991). Here, there was no evidence that Jack Pardue knew about the conspiracy before Danzer insisted on meeting with him to see the money. Jack Pardue’s name was mentioned when Michel Pardue promised that the money would be paid by his grandfather. However, there was no evidence at trial that the grandfather even knew of the murder plan at that time. The grandfather was not present at the initial meeting with agent Danzer in the prison, at the subsequent meeting in the prison parking lot, or at any meeting with Danzer thereafter. Indeed Jack Pardue refused time and again to meet with Danzer. Thus, no evidence exists which would support a finding that Jack Pardue tacitly agreed to the murder scheme. On the other hand, there is no question that Danzer on several occasions through his dealings with Michel Pardue, repeatedly attempted to meet and criminally involve Michel’s grandfather in the scheme.
Moreover, I find there exists no evidence prior to September when the bogus murders took place from which a jury could find beyond a reasonable doubt that Jack Pardue acted in furtherance of the conspiracy.1 The only possible evidence of an overt act before July 9 that can be considered incriminating is Jack Pardue’s accompanying Michel Pardue to meet Danzer on July 2. However, Jack Pardue never entered the restaurant; he remained in the car. I find this standing alone does not constitute sufficient evidence to convict. Jack Pardue testified that he accompanied Michel Pardue because of his fear for Michel’s safety. Although the jury had a right not to believe this testimony, the possible rejection of it does not prove that Jack had committed any act in furtherance of *849the conspiracy or had tacitly agreed to become part of the conspiracy.
It has long been the rule that “where the government’s evidence is equally strong to infer innocence of the crime charged as it is to infer guilt, the verdict must be one of not guilty and the court has a duty to direct an acquittal.” See United States v. Kelton, 446 F.2d 669, 671 (8th Cir.1971). Mere association, as opposed to participation, is not sufficient to establish guilt of a conspiracy. United States v. Williams, 341 U.S. 58, 64 n. 4, 71 S.Ct. 595, 599 n. 4, 95 L.Ed. 747 (1951). Indeed throughout the week prior to July 9, the evidence shows that Jack Pardue tried to dissuade Michel Pardue from getting involved. Michel Pardue’s statement to Dan-zer that his grandfather wanted to stall until an alibi could be established cannot be considered an act in furtherance of the conspiracy because it goes only to what the grandfather may have thought about the conspiracy, not to anything he overtly did in furtherance of it. The evidence shows that Michel Pardue and Jack Pardue never discussed the substance of what their alibi would be and that the mere mention by Michel Pardue to Danzer of them wanting an alibi was purely a stalling technique used by Michel. No other evidence was presented at trial that the grandfather acted to further the conspiracy prior to July 9.
The original conspiracy involving Michel Pardue, to kill the Harringtons before July 9 so that Mr. Harrington could not testify at David Pardue’s perjury trial, terminated on July 9 when David Pardue pled guilty. The conspiracy to murder the Harringtons was completely resurrected by the government nine weeks later when it staged the murder and demanded the money from Michel Pardue. It is only then that evidence exists that Jack Pardue “joined” the conspiracy. The evidence shows that Jack Pardue ultimately mailed the $4500 to “Chuck Ross” once the “murders” had taken place because he feared for the safety of himself, his wife and Michel.2 The entire staging of the murder, however, was the government’s plan — used not to induce Michel Pardue, because there was already sufficient conduct to subject him to arrest without the staged murder — but to induce Jack Pardue to participate in the scheme.
Under such circumstances, I find that the government acted improperly by inducing Jack Pardue, albeit with Michel Pardue as its conduit, into paying the money to Dan-zer.3 There exists no evidence that Jack Pardue was predisposed to enter the conspiracy when he aided Michel in delivering the payoff in September. As Jacobson v. United States, — U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), makes clear, predisposition is tested at a time prior to the government’s acts intended to create predisposition. Id. at - - - n. 2, 112 S.Ct. at 1540-41 n. 2. The evidence shows that Jack Pardue had refused to meet Dan-zer and constantly tried to persuade Michel to do the same. I would hold that the district court was correct in finding that Jack Pardue was entrapped as a matter of law.
In Jacobson the Court observed: “ ‘[T]he government [may not] pla[y] on the weaknesses of an innocent party and beguil[e] him into committing crimes which he otherwise would not have attempted.’ ’.’ Jacobson at -, 112 S.Ct. at 1543 (quoting Sherman v. United States, 356 U.S. 369, 376, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958)). *850There is little doubt the government played on the love and affection of a grandfather for his grandson in getting Jack Pardue to pay money for a bogus murder as protection for Michel Pardue from threats made by government agents.
I would sustain the district court judgment of acquittal.
. Had Jack been part of the conspiracy agreement, it would not have been necessary for the government to show he acted in furtherance of it because an overt act of a single conspirator knowingly committed in furtherance of the conspiracy is considered the act of all conspirators. Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946).
. Jack Pardue testified that he and his wife slept one night on an air mattress in his field because they feared "Chuck” would come to the house to hurt them.
. The government urges that Jack Pardue cannot assert entrapment as a defense because Jack was induced by Michel Pardue to make the payment and that Jack cannot claim entrapment when the inducement is by a private individual. See United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987) ("[T]he entrapment defense is only available to defendants who were directly induced by government agents”). Here, however, it is undisputed the government worked through Michel, as a conduit or unwitting middleman, in instilling fear in him, that Michel’s life would be in jeopardy unless the grandfather paid the money. See United States v. Pilarinos, 864 F.2d 253, 256 (2d Cir.1988) ("A defendant is entitled to a derivative entrapment defense ... when the government's inducement was directly communicated to the person seeking [the] entrapment charge by an unwitting middleman.").