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975 F2d 867 United States of America v. McClelland Sr

975 F.2d 867

UNITED STATES OF AMERICA, Appellee,
v.
Robert Russell MCCLELLAND, SR., Appellant.

No. 92-1640.

United States Court of Appeals,
Eighth Circuit.

Submitted: August 4, 1992.
Filed: August 27, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

PER CURIAM.

1

Robert Russell McClelland, Sr. appeals from his conviction on federal drug charges. For reversal, he argues that he was denied his right to due process by reason of the government's outrageous conduct in inducing him to commit a crime, and that the District Court erred in failing to instruct the jury on the issue of entrapment. We reject these arguments.

2

Having carefully considered the record, we are satisfied that the evidence fails to show any misconduct by the government. McClelland's due process argument therefore must fail. Similarly, the evidence in this case does not raise a submissible issue of entrapment. Instead, the record reveals that McClelland was an "unwary criminal" rather than an "unwary innocent." Sherman v. United States, 356 U.S. 369, 372 (1958). We are satisfied that on this record no reasonable jury could find that McClelland was entrapped. The District Court therefore did not err by failing to instruct the jury on the issue of entrapment.

3

Accordingly, we affirm. See 8th Cir. R. 47B.