Appellant Smith was convicted by a jury of four counts charging distribution and possession of Methylenedioxy Amphetamine (MDA) and of cocaine. 21 U.S.C. § 841(a)(1). Government proof tended to show a transfer April 1, 1973 of 32.09 grams MDA and .61 gram of cocaine. Appellant was sentenced to concurrent terms of five years, with confinement for six months and probation for the remainder.
Appellant Smith claimed at trial that he was “pressured into this sale” by agents and an informer, and the district court submitted the issue of entrapment to the jury to the apparent satisfaction of Smith. Since the jury found against him, though adequately instructed, Smith urges on appeal that entrapment must be deemed to have been established as a matter of law.
Smith’s theory appears to be that evidence of repeated requests by government agents for assistance in obtaining narcotics, all preceding the sale by appellant, and the absence of evidence, beyond the sale itself, tending to show Smith’s predisposition to sell the controlled substances, required acquittal as a matter of law. He relies principally on Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), where the Supreme Court reversed a conviction, concluding that entrapment had been shown as a matter of law by the undisputed testimony of prosecution witnesses, the defense having called no witness of its own.
In the present case, however, there was a conflict in testimony as to the number of contacts between the government agents and Smith before the sale. Accordingly it will be necessary to analyze the evidence to determine whether the view of the evidence most favorable to supporting the jury verdict compels the conclusion that there was entrapment.
As stated in Sorrells v. United States, 287 U.S. 435, 441-442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932), “the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” It was said in Sherman, 356 U.S. at 372, 78 S.Ct. at 821, “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.”
“[T]he entrapment defense prohibits law enforcement officers from instigating a criminal act by persons ‘otherwise innocent in order to lure them to its commission and to punish them.’ ” *1159United States v. Russell, 411 U.S. 423, 428, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973), quoting Sorrells, 287 U.S. at p. 448, 53 S.Ct. 210. The test is whether “the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials.” (Emphasis supplied.) Sherman, 356 U.S. at p. 372, 78 S.Ct. at p. 821, quoting Sorrells, 287 U.S. at p. 451, 53 S.Ct. 210.
“Entrapment as a matter of law is established only where undisputed testimony makes it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion, or fraud of the government agent.” United States v. Millpax, Inc., 313 F.2d 152, 156 (7th Cir. 1963), citing Sorrells; United States v. Haden, 397 F.2d 460, 466 (7th Cir. 1968) cert. den. 396 U.S. 1027, 90 S.Ct. 574, 24 L.Ed.2d 523, citing Sherman and Sor-rells.
The testimony of several special agents, called by the government, tended to establish the following version: On Sunday, April 1, 1973 at 3 p. m., Special Agent Casteel and Joseph Hale, a paid informer, went to the trailer where Smith lived. This was at Carbondale, Illinois, and Smith was a student at Southern Illinois University. Hale introduced Casteel to Smith and asked if Cronson, Smith’s roommate, had made arrangements for the purchase of either cocaine or MDA. Smith said Cronson wasn’t there, but Smith had contacted a source of supply and Smith would handle the transaction. Smith said the purchase would probably take place later that day, and asked Casteel where he Vould be. Casteel gave him his room number at a motel.
At 5 p. m. that day, Smith came to the room. Casteel and Hale were there, with Special Agent Bushendorf secreted in the bathroom. Smith told Casteel he could buy an ounce of cocaine for $1,050 or an ounce of MDA for $375. Casteel agreed to buy the MDA and asked for a small sample of the cocaine to see whether he wanted to buy a quantity later. Smith then telephoned someone he called Roger, informed him of the order, and said he would be over in a few minutes. Smith left, returned about an hour later and delivered the MDA, for which payment was made. He asked to see Casteel’s and Hale’s wallets to see if they were police. After that he turned over a small sample of cocaine.
Cross-examination of Special Agent Casteel developed testimony that Special Agent Jovonovich had made contacts with Smith’s roommate before April 1. Casteel had not met Smith before April 1. He had contact with him three or four times after April 1, and attempted to make additional purchases. On those occasions, Smith told Casteel his source had sold all he had. Smith was not arrested until May 17.
Cross-examination of Special Agent Bushendorf brought out that he was in charge of the investigation in Carbon-dale which began during the latter part of March, 1973 and continued to May 17. There were several agents in the unit. Hale had been a useful informer in Indiana and was referred by another agent to Bushendorf. Hale came to Carbon-dale and was instructed to make himself acquainted with the scene there and see what he could find out about the peddling of drugs. Bushendorf testified that, including the visit April 1, agents or Hale had visited the Smith trailer three times at the most.
Hale and Jovonovich did not testify.
Smith testified that he met two men named Joe (who turned out to be Hale and Jovonovich) on Sunday, two weeks before the sale. They had met Cronson before and had been asking how they could buy large quantities of drugs. He described meeting with Hale and either Jovonovich or Casteel on five occasions before the day on which he made the sale. They repeatedly spoke “very strongly about how they wanted to make a fast possession” of huge amounts of drugs so they could make money. “They were asking Bill, Chris, and myself if we could get them for them, and if we couldn’t, who could?” He described the attitude of the students to*1160ward the agents as “rather cold,” and was surprised the agents kept coming back. Except for deception as to identity, there was no testimony of any misrepresentation by the agents or the informer. Smith testified to statements that were, on their face, threats to “break into our trailer and take our belongings,” but conceded these things were said in a joking manner. The only pressure claimed, in substance, was that the requests were repeated a number of times before the sale. There was no play upon sympathy as in Sherman.
Supporting the claim of repetitions of requests, Smith testified that five meetings took place in two weeks before the sale. He said the first meeting definitely took place after March 25 and could have been March 31. He placed the sale in mid-April. His testimony concerning the meetings was corroborated by several defense witnesses, who also said the sale occurred in mid-April. There is documentary proof, however, that the MDA and cocaine delivered to Casteel were received from him by mail at the laboratory in Chicago April 3. This strongly corroborates the agents’ testimony that the sale was April 1. The jury could well have believed that the defense witnesses were confused as to the sequence of events; that Hale and Jovonovich met Cronson on one occasion and Smith on another late in March; that there were' no other meetings before April 1; and that many of the conversations took place after the April 1 sale. Under this version the numerous repetitions of the request, accomplishing a change from refusal to acquiescence by the defendant, as present in Sherman, were lacking here.
Accordingly we conclude that the entrapment issue was, at best for Smith, a jury question, and the defense was not established as a matter of law.
The judgment appealed from is affirmed.