Gеrald Jett was convicted as a result of jury verdicts on three counts charging disposition of cocaine in violation of 21 U.S.C. § 841(a)(1). His chief claim on this appeal is that, for a number of reasons, he should havе received directed verdicts of acquittal. We affirm.
The principal government witness was narcotics special agent O’Brien. He testified to a meeting with Jett in an apartment in Boston. Also present wаs Loren Jacobs, a government informant who had brought Jett to O’Brien’s attention. Jett produced a plastic bag which he announced contained cocaine for which he had paid $1000 an ounce. He sifted out an ounce and gave it to O’Brien in exchange for $1200. It was, in fact, cocaine. Five days later O’Brien met Jett in a motel in Springfield. Jacobs was not present. Again Jett produced a plastic bag сontaining a white powder. This time he stated that it was cocaine which “his people in Boston” had obtained from Peru. The bag contained four ounces of cocaine, and O’Brien paid Jett $4300 therefor. Jett then asked O’Brien if he would be willing to purchase a pound, saying that his “man . . . would trust him [Jett] to front the cocaine.” O’Brien indicated willingness, and two days later telephoned Jett, who told him that “he was with his people and that he could do a pound of cocaine that evening.” An appointment was arranged, again at the Springfield motel, and when Jett there produced bags containing a pound and four ounces of cocaine he was arrested. Again, Jacobs was not present. At the trial, although in the courtroom and available to both parties, she was not called.
Entrapment—Inducement by persuasion
Jett took the stand. He testified that prior tо meeting Jacobs he knew about narcotics, but had never dealt in them; that he made these sales to O’Brien simply on behalf of Jacobs, for a small payment, with her supplying the cocaine, and after her repeatedly begging him to do so for her because of an alleged disability from doing so herself. Citing Kadis v. United States, 1 Cir., 1967,
This claim must fail for two reasons. In the first рlace, while it is true that we stated in
Kadis
that introduction of evidence of inducement placed the burden of showing defendant’s predisposition upon the government, such a burden of persuasion is a matter fоr the jury. We flagged the fact that this evidence might be disbelieved by citing McDonald v. United States, 1962,
Whatever may be the circumstances under which a defendant’s uncontradicted evidence has to be believed, we need not here decide. 4 In the present case defendant’s testimony was far from sufficient to be accepted as matter of law. Since the government’s evidence showed no inducement beyond a mere solicitation or opportunity, the government could have offered no evidence as to predisposition, and taken its chances that the jury would not accept defendant’s testimony. If the jury rejected that testimony the government would have no burden. In рoint of fact, we find substantial evidence warranting a finding of predisposition. Defendant, inter alia, could be seen as much too at *1081 ease when dealing with O’Brien, and too frequently willing, on his own testimony, to acсept the informant’s alleged reasons, which we can only regard as increasingly implausible, for allegedly needing him as a facilitator for sales really by her.
Entrapment, etc.—Informant as supplier.
Defendant claims that he was entitled to an аcquittal because Jacobs was the supplier of the cocaine. Again, however, all of the evidence supporting that claim came from him. There was, in addition, direct contradiction. O’Brien testified, ante, to statements by defendant of sources which, although not identified, clearly were not Jacobs. Furthermore, Jett’s testimony that Jacobs brought the cocaine to the Springfield motel on the oсcasion of the last— incompleted—one pound sale, was contradicted by evidence that government agents had maintained a surveillance, and that Jacobs could not have done this. We add that we regard it as inherently incredible that Jacobs, who concededly was not present at the sale, need have, or would, even if she had access to such a large amount, have trusted Jett with a pound and four ounces of cocaine, valued at $1000 an ounce, simply to set him up. There is no suggestion that the government connived, or even knew of any such alleged conduct on Jacobs’ part, lеt alone financed or supplied her.
On the record defendant contends that he was at least entitled to a charge that if the jury believed him that Jacobs supplied the cocaine (without any cоndition that they believed the government knew about it), it was either entrapment as matter of law, for which he cites United States v. Bueno, 5 Cir., 1971,
Entrapment—Contingent fee
Defendant contends that he was entitled to an acquittal because the informant was paid on a contingent fee basis, citing Williamson v. United States, 5 Cir., 1962,
The Indictment—Hearsay
Because of the unavailability of government agent O’Brien when the grand jury was convening, the United States Attorney had another agent read to the jury from O’Brien’s notes as a substitute for his direct testimony. The circumstances, and its consequent hearsay character, were fully explained to the grand jury. Nevertheless, defendant attaсks the indictment. An indictment may be based upon hearsay, Costello v. United States, 1956,
Without deciding whether we would agree with
Estepa
on its facts, we do agree that it is normally preferable for a grand jury to have something other thаn hearsay and that we would dislike seeing a practice of hearsay only. By so saying, however, we do not suggest that a defendant is entitled as of right to demand grand jury minutes to see if he can discover whether hearsay,
*1082
or only hearsay, was used. As the Court only recently observed, “An indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetеnt evidence,” United States v. Calandra, 1974,
Defendant asserts that he should have been given the grand jury minutes as Jencks Act, 18 U.S.C. § 3500, material, alleging that the witness before the grand jury was merely a conduit for O’Brien’s testimony and thаt the witness’s testimony should be treated as O’Brien’s testimony. Defendant was given O’Brien’s actual notes. Beyond that there is no logic to this complaint. Defendant makes a number of other assertions, all of which we have reviewed, but none of which require discussion.
Affirmed.
Notes
. Under what circumstances inducement by an informer does not bind the government is a question we do not reach. We assume it would here.
. The charge which the court approved in Brown v. Henderson, at 194,
“[I]f there is no evidence as to the due care in this case of Mr. Brown, then the presumption controls. When evidence is introduced then you are to consider the evidence. If you believe the evidence the presumption disappears; but just because somebody lias said something and you do not believe a word of that evidence the presumption would control.”
. We cannot accept defendant’s case of United States v. Bueno, 5 Cir., 1971,
. In Rosenberg v. Baum, 10 Cir., 1946,
“Where unimpеached witnesses testify distinctly and positively to a fact and are not contradicted, their testimony should under ordinary circumstances be credited and have the effect of overcoming presumptiоns. But that rule is subject to qualifications. There may be such inherent unreasonableness or improbability in the statements made by the witnesses as to deprive them of credit, however positively made. Though unimpeаched, the witnesses may manifest such an interest in the question as to dilute their credibility. Their attitude may completely discredit the testimony. Physical facts may dispute it. And other circumstances may render it unworthy of belief. In such case the court or jury is not réquired blindly to adopt the testimony. Instead, the court or jury may in the exercise of sound judgment decline to give it decisive credence, though it is not contradicted by direct adverse testimony.”
See, also,
Andrew Jergens Co. v. Conner, 6 Cir., 1942,