A Durham man caught selling cocaine to a police informant has filed an appeal brief suggesting that the police entrapped him.

Milton Morgan, a 63-year-old Navy veteran with no criminal record, was approached by the confidential police informant twice in one day, even though he was not a bona fide drug dealer. In his appeal brief, flied last month, Morgan argued that his trial judge should have instructed the jury to consider an entrapment defense during his trial.

We covered the case last year. At the direction of DPD, informant Jennifer Burrage traveled to Duke Manor Apartments with a hidden recording device. Burrage couldn’t find the dealer DPD had targeted, but Morgan, an old acquaintance of Burrage’s, invited her into his home, where he had a small amount of drugs. Morgan had never sold Burrage drugs before, but the two had exchanged drugs for sex on previous occasions, and it’s possible Morgan was interested in sex on this particular day.

Burrage returned to her DPD handlers, who were parked in an unmarked SUV nearby. She explained that she failed to obtain drugs from the targeted dealer, and that she had run into an old acquaintance—Morgan—who had a small amount of drugs in his apartment.

The DPD officers asked Burrage to attempt a drug buy from Morgan.

“He’s not a dealer,” she said.

The officers told her to try anyway.

At that, Burrage returned to Morgan’s apartment, bought $20 of cocaine, and quickly left. It’s unclear what Burrage did to induce Morgan into selling her drugs.

At the close of evidence during trial, Morgan’s attorney, Daniel Meier, asked Judge Michael O’Foghludha to instruct the jury to consider an entrapment defense. O’Foghludha declined. The jury convicted Morgan of selling and delivering cocaine, possession of cocaine and maintaining a dwelling for drugs. Morgan’s sentence was suspended and he was put on two years’ probation.

To be entitled to a jury instruction on an entrapment defense, a defendant must present evidence that law enforcement officers used persuasion, trickery or fraud to induce the defendant to commit the crime charged. During trial, O’Foghludha wasn’t convinced there was “sufficient” evidence of trickery or fraud.

In his brief, however, Morgan’s attorney argues that the evidence of trickery or fraud needn’t be “sufficient,” but merely “credible.”

The state is expected to file its response brief within the next month.