* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled 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that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-40158

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN KIMBLE,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(4:95 CR 50 3)

_________________________

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.
2

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
3

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
4

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 government 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 government 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.