                                                         [DO NOT PUBLISH]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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