Sherman v. United States

Supreme Court of the United States · 1958 · Criminal Law

356 U.S. 369 (1958)

Updated August 1, 2026

Criminal Lawentrapmentgovernment inducementpredispositioncreative activity of law enforcementmere opportunityinformersnarcotics sales

Facts

A government informer, Kalchinian, met petitioner while both were apparently undergoing treatment to cure narcotics addiction. After repeated meetings and repeated requests based on his claimed suffering and need for a source of narcotics, Kalchinian overcame petitioner's initial refusal, evasiveness, and hesitancy, and petitioner eventually obtained narcotics that he shared with Kalchinian while charging only the stated cost and expenses. After several such transactions, Kalchinian notified federal narcotics agents, who then observed three November 1951 exchanges in which petitioner gave narcotics to Kalchinian for government-supplied money. The Government also relied on petitioner's prior narcotics convictions from 1942 and 1946 to show readiness to commit the crimes.

Issue

Whether petitioner's conviction should be set aside because the defense of entrapment was established as a matter of law. More specifically, the question was whether the Government proved petitioner was predisposed to sell narcotics, or whether the sales were the product of inducement by a government informer.

Rule

Entrapment occurs only when the criminal conduct was the product of the creative activity of law-enforcement officials; merely affording opportunities or facilities for the commission of the offense does not constitute entrapment. In determining entrapment, courts examine both the conduct of the government agent and the accused's conduct and predisposition, and unless entrapment can be decided as a matter of law, the issue is for the jury.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Dana Mercer met Leo Vance at a recovery clinic where both discussed trying to stop using illegal stimulants. Leo, who was secretly cooperating with federal agents while his own drug charges were pending, repeatedly begged Dana over several weeks to help him find pills because he said he was suffering badly; Dana initially refused, then avoided the subject, and finally agreed to obtain pills at cost with no markup. Agents later watched two exchanges and Dana was prosecuted.

If all of these facts come from the prosecution's own witnesses and are undisputed, which is the strongest argument for Dana on appeal?

Explanation. Under the majority rule, entrapment exists when the criminal conduct is the product of the creative activity of law-enforcement officials rather than the defendant's predisposition. Where the prosecution's undisputed evidence shows repeated solicitation, appeals to sympathy, initial refusal and hesitancy, and only at-cost transfers, entrapment may be found as a matter of law. The later observed sales do not defeat the defense if they were part of the course of conduct produced by the original inducement.