[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 3, 2006
No. 05-13044 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00040-CR-OC-1OGRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LOPEZ-CRUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 3, 2006)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Jorge Lopez-Cruz appeals his convictions for: (1) distributing heroin, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (2) two counts of possessing
heroin as an inmate in a federal prison, in violation of 18 U.S.C. § 1791(a)(2),
(b)(1), and (d)(1)(C); and (3) providing heroin to an inmate in a federal prison, in
violation of 18 U.S.C. § 1791(a)(1), (b)(1), and (d)(1)(C). Lopez-Cruz asserts
because he was a mere drug user who was induced to sell drugs to Eric Jones as a
means of assisting Perez Ruiz, a fellow gang member, pay off his gambling debt to
Jones, he was entrapped as a matter of law. He further contends the Government’s
conduct in allowing Jones to conduct an illegal bookmaking operation, so that
Jones could use his power and influence to set up a small drug transaction with a
junkie, was outrageous, as it did not enforce drug trafficking laws and encouraged
illegal gambling. We conclude these arguments are without merit, and affirm
Lopez-Cruz’s convictions.
I. DISCUSSION
A. Entrapment
“When a jury rejects an entrapment defense, our review is limited to
determining whether the government presented sufficient evidence for a reasonable
jury to conclude that the defendant was predisposed to take part in the crime.”
United States v. Francis, 131 F.3d 1452, 1456 (11th Cir. 1997). Although our
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review is de novo, we will “view all evidence and make all inferences in favor of
the government,” and “cannot overturn the jury’s verdict if any reasonable
construction of the evidence would allow the jury to find the defendant guilty
beyond a reasonable doubt.” Id. “Predisposition is a fact intensive inquiry into the
defendant’s readiness and willingness to engage in the crime absent any contact
with the government’s officers or agents. The government may not implant in an
innocent person’s mind the disposition to commit a crime, and then induce the
person to commit the crime so it may prosecute.” Id. (internal citation omitted).
Viewing the evidence in the light most favorable to the Government, the
evidence was sufficient for a reasonable jury to find Lopez-Cruz’s action of
engaging in the drug sale was voluntary and willing. Although Lopez-Cruz asserts
he was merely a drug addict, the evidence shows: (1) while he was housed at
Coleman, Lopez-Cruz sold marijuana to Richard Darnell Helms 10 to 15 times;
(2) after Jones put out the word he was interested in investing in drugs, Lopez-Cruz
voluntarily approached Jones about making a deal; and (3) when Lopez-Cruz heard
Jones wanted to buy some heroin, Lopez-Cruz obtained it from “his people”
without hesitation. The record is devoid of any evidence that Lopez-Cruz was
unwilling to make the drug sale, and, contrary to Lopez-Cruz’s argument, there is
no evidence Lopez-Cruz was forced to deal heroin because Perez owed Jones a
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gambling debt. Accordingly, sufficient evidence supported the jury’s rejection of
Lopez-Cruz’s entrapment defense.
B. Outrageous Governmental Conduct
Because Lopez-Cruz failed to raise below his due process argument that the
Government’s conduct was outrageous, we review the issue for plain error. See
United States v. Kelly, 888 F.2d 732, 739 n.12 (11th Cir. 1989) (noting that, where
a defendant failed to raise a claim of outrageous governmental conduct at trial, we
would review the issue for plain error). “We will correct plain error only where
(1) there is an error; (2) the error is plain or obvious; (3) the error affects the
defendant’s substantial rights in that it was prejudicial and not harmless; and
(4) the error seriously affects the fairness, integrity, or public reputation of a
judicial proceeding.” United States v. Orduno-Mireles, 405 F.3d 960, 961 (11th
Cir.), cert. denied, 126 S. Ct. 223 (2005).
“A conviction may be overturned when the government is involved in the
criminal activity only when the government’s involvement violates fundamental
fairness and shocks the universal cause of justice.” United States v. Chastain, 198
F.3d 1338, 1352 (11th Cir. 1999) (quotations and citation omitted). “Whether
outrageous governmental conduct exists turns upon the totality of the
circumstances with no single factor controlling and the defense can only be
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invoked in the rarest and most outrageous circumstances.” United States v.
Haimowitz, 725 F.2d 1561, 1577 (11th Cir. 1984) (quotations and citation
omitted). Where the government is investigating offenses involving illegal drugs,
it often must engage in undercover operations because it is very difficult to
discover the contraband. This activity by the government does not generally
constitute outrageous conduct. United States v. Savage, 701 F.2d 867, 868-70
(11th Cir. 1983).
Because the Government was permitted to engage in strategic undercover
operations in order to discover illegal drugs, its use of a cooperating inmate, who
was allowed to continue his bookmaking operations in order to maintain his
connections to the prison’s drug traffickers, was not outrageous in light of the
totality of the circumstances. The district court did not plainly err by not, sua
sponte, dismissing the indictment.
II. CONCLUSION
The evidence was sufficient for a reasonable jury to reject the entrapment
defense. Additionally, the Government’s conduct was not outrageous. Thus, we
affirm Lopez-Cruz’s convictions.
AFFIRMED.
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