IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40158
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN KIMBLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(4:95 CR 50 3)
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July 31, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Kimble appeals his conviction of conspiracy to possess
with intent to distribute crack cocaine and possession with intent
to distribute crack cocaine, in violation of, respectively
21 U.S.C. §§ 846 and 841(a)(1). Finding no error, we affirm.
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
I.
In late March 1994, Detective Paul Cogwell began working
undercover to infiltrate known drug locations and to contact known
drug dealers. He met various members of the Pippens/Kimble family
who lived at 1501 Frances Street in Plano, Texas. Cogwell
purchased crack cocaine from Terry Pippens, Anthony Ford, and
Lavada Pippens at the house.
In late April 1994, Cogwell first saw John Kimble at the
house, saw Kimble making contact with cars that pulled up to the
house, and believed Kimble was selling narcotics. When Cogwell
pulled up to the house, Kimble approached the car and told Cogwell
in the future to contact him directly to purchase the crack
cocaine. Between May and August, Cogwell purchased crack cocaine
from Kimble on a number of occasions. Following a jury trial,
Kimble was convicted.
II.
A.
Kimble argues that the district court improperly refused to
give his requested jury instruction on entrapment. The trial judge
has substantial latitude in formulating the jury charge, and we
review the refusal to give a requested jury instruction for abuse
of discretion. United States v. Aggarwal, 17 F.3d 737, 745 (5th
Cir. 1994). We reverse only if the requested instruction "(1) is
substantially correct; (2) was not substantially covered in the
charge actually given; and (3) concerns an important point such
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that failure to give it seriously impaired the defendant's ability
to effectively present a given defense." Id. Thus, we reverse
only if the defendant was improperly denied an opportunity to
convey his case to the jury. United States v. Hudson, 982 F.2d
160, 162 (5th Cir.), cert. denied, 114 S. Ct. 100 (1993).
The mere assertion of the defense of entrapment does not
require an entrapment jury instruction. United States v. Menesses,
962 F.2d 420, 429 (5th Cir. 1992). If the defendant fails to
demonstrate the existence of even a scintilla of evidence that
government agents entrapped him into committing an offense he was
not otherwise predisposed to commit, he has failed to make the
required prima facie showing and is not entitled to an entrapment
instruction. Id. "To determine whether entrapment has been
established, a line must be drawn between the trap for the unwary
innocent and the trap for the unwary criminal." Id. at 430
(internal quotations and citation omitted).
Although Kimble did not testify at trial, he argues that he
made the prima facie showing because on cross-examination he
elicited testimony from Cogwell that Cogwell had driven Kimble to
known drug locations to purchase crack cocaine that Kimble then
sold to Cogwell. "The first step to a successful entrapment
defense is to make a prima facie showing that government conduct
created a substantial risk that an offense would be committed by a
person other than one ready to commit it." Hudson, 982 F.2d at 162
(internal quotation and citation omitted).
Cogwell admitted driving Kimble to areas where Kimble could
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purchase cocaine. Cogwell also testified, however, that, before he
met Kimble, he had seen Kimble selling crack cocaine at the Frances
Street house and that Kimble later told Cogwell to contact him
directly when he needed crack; that he had purchased crack cocaine
from Kimble as early as May 4; and that Kimble asked Cogwell to
drive him to purchase more crack cocaine on May 5, but Cogwell
refused, and Kimble purchased the crack from another source.
Codefendants Raymond Jenkins and Kevin Donehue also testified that
they had seen Kimble selling crack. Jenkins admitting being
Kimble's source for a short period and providing Kimble with crack
that Kimble sold to Cogwell. Kimble failed to make a prima facie
showing, so the district court did not abuse its discretion by
refusing to give an entrapment instruction.
B.
Kimble also argues that the district court abused its
discretion by refusing to give an outrageous government conduct
jury instruction. To establish the defense of outrageous govern-
ment conduct, the defendant must demonstrate that he was not an
active participant in the criminal activity and that the government
was overinvolved in the charged crime. United States v. Smith,
7 F.3d 1164, 1168 (5th Cir. 1993). A claim of outrageous govern-
ment conduct is a question of law, not fact, and therefore the
district court did not abuse its discretion by refusing to give the
requested jury instruction. Hudson, 982 F.2d at 163.
AFFIRMED.
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