Before CLARK, WATERMAN, and MOORE, Circuit Judges.
The United States and the defendant-appellant both petition for rehearing of our decision of August 24, 1960, 2 Cir., 282 F.2d 71, reversing defendant's conviction of violation of the narcotics laws and remanding the case for a new trial. Our decision was based on the trial court's refusal to inspect the minutes of the grand jury testimony of Agent Newkirk, the Government's principal witness at the trial. The Government asserts that the trial court was not required to make the requested inspection because the defense counsel did not first point out a possible inconsistency between trial and grand jury testimony. Alternatively it contends that the refusal to inspect constituted harmless error. In its cross-petition defendant-appellant seeks a clarification of the applicable rule regarding the presumption arising from possession of narcotics in a prosecution under 21 U.S.C. § 174. While we adhere to our decision we think a fuller explanation desirable and shall proceed to make it in discussing the points made by the respective petitioners.
The Government's petition. The prosecution asserts that this court failed to apply properly the rule stated in United States v. Zborowski, 2 Cir., 271 F.2d 661, 665, thus: "The rule is that when the defendant points out a possible inconsistency between the trial and the grand jury testimony of a government witness and requests the trial judge to examine the witness' grand jury minutes, the trial judge must then read the minutes in camera." And it contends that this rule requires an affirmative showing by the defendant of a possible inconsistency before the trial court may honor his request and inspect the minutes. But in that very case we held otherwise, as Circuit (now Chief) Judge Lumbard pointed out, 2 Cir., 271 F.2d 661, 666:
"Even if there were no showing of possible inconsistency in the testimony of a witness in a perjury case, or indeed in any case, where the testimony of such witness is the only direct evidence against the defendant and no valid reason for secrecy exists, the court should upon request examine the grand jury minutes of such a witness for possible inconsistencies. United States v. Spangelet, supra [2 Cir., 1958, 258 F.2d 338]. The reason for the necessity of such a rule is obvious. See Jencks v. United States, 1957, 353 U.S. 657, 667-668, 77 S. Ct. 1007, 1 L. Ed. 2d 1103; Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 407-410, 79 S. Ct. 1237, 3 L. Ed. 2d 1323 (dissenting opinion). Surely the defendant should have access to all conflicting testimony given under oath by the one direct witness who gives him the lie. It offends all sense of fairness to first require a showing of possible inconsistency preliminary to examination of the minutes by the trial judge."
The contrary is also made clear in our decision at the same time in United States v. McKeever, 2 Cir., 271 F.2d 669, 672, note 1, where we stated: "* * * the trial judge's examination of the minutes, without requiring a showing of possible inconsistency, was the proper and desirable course." Occasional dicta may appear to suggest lack of indicated inconsistencies as additional make-weights to decision, but we have never enforced such a self-defeating condition to destroy the usefulness of this important tool of cross-examination. For neither defendant nor his counsel has the grand jury minutes (indeed the request would not be made if they had them at hand); and to require a bill of particulars in support of the request when from the nature of the situation counsel cannot know such details is to deny the rule itself. That we have not done. United States v. Spangelet, 2 Cir., 258 F.2d 338, 342; United States v. Tomaiolo, 2 Cir., 280 F.2d 411; United States v. Giampa, 2 Cir., 1961, 290 F.2d 83.
The Government also argues that this court should make an independent study of the grand jury minutes to determine whether or not any inconsistencies exist. It argues that no inconsistencies of consequence will be found, and that the error below can then be dismissed as harmless error. We are referred to United States v. Kirby, 2 Cir., 273 F.2d 956, where the trial court failed to inspect the grand jury minutes and this court nevertheless affirmed the conviction. True, we there examined the minutes contained in the record on appeal and stated that we found no inconsistencies. But the ground of our decision was the defendant's abandonment of his demand for inspection after the Assistant United States Attorney said they were not available. And by so examining the minutes which had been unavailable at the time of trial, we did not purport to sanction a procedure whereby the trial court could refuse to inspect minutes which were at hand. Moreover, that was a case of trial to the court, as was the situation in the more recent case of United States v. Santore, 2 Cir., Oct. 2, 1959, 290 F.2d 51, where the appellate panel asked the trial court for a later review and report.*fn1 The proper time for inspection is at trial, when any inconsistencies discovered may be used for crossexamination. A complete failure by the trial court to inspect the minutes of grand jury testimony by the Government's major witness cannot be remedied by inspection by the appellate court, at least in a jury case, where the possible effect of a searching cross-examination cannot be appraised as perhaps it may be by a trial judge sitting alone. The doctrine of harmless error cannot be extended so far if the announced rule is to retain any vitality whatsoever. We deny the Government's petition for rehearing.
Petition of the defendant-appellant. The cross-petition seeks clarification of the question whether or not possession of narcotics by the alleged coconspirators is sufficient to permit application to appellant of the presumption of guilt which 21 U.S.C. § 174 raises upon proof of possession. Tat important statute makes it a crime to receive, conceal, buy, or sell any narcotic drug which the defendant knows was illegally imported into the United States. It also punishes any person who, with knowledge of the illegal importation, conspires to commit the above crime or facilitates it. In United States v. Santore, 2 Cir., Nov. 16, 1960, 290 F.2d 51, a majority of this court on a rehearing in banc held that a defendant could be convicted for aiding and abetting, 18 U.S.C. § 2, the commission of the crime defined in 21 U.S.C. § 174. Since an aider and abettor must have the same knowledge and intent required of the principal, however, proof of knowledge of illegal importation is also necessary to a conviction for aiding and abetting. This is pointed out in the opinions of Judges Waterman and Friendly in the Santore case, supra.
Instead of proving the separate elements of 21 U.S.C. § 174, including knowledge of importation, the prosecution may take advantage of the statutory presumption stated in the statute thus: "Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury." Thus a person who facilitates, aids or abets, or conspires in violation of 21 U.S.C. § 174, and who can be shown to have had possession of the drug, can be convicted without independent proof of knowledge of illegal importation. The difficult problem presented in the present case is the meaning of "possession."
It is well established that possession can exist without physical contact so long as the defendant has dominion and control over the drug. United States v. Cox, 2 Cir., 277 F.2d 302, 303. Such dominion and control without physical custody has been termed "constructive," as opposed to actual, possession. Physical custody by an employee or agent whom one dominates, or whose actions one can control, is sufficient to constitute such constructive possession by the principal. United States v. Maroy, 7 Cir., 248 F.2d 663, certiorari denied 355 U.S. 931, 78 S. Ct. 412, 2 L. Ed. 2d 414. Moreover, a person who is sufficiently associated with the persons having physical custody so that he is able, without difficulty, to cause the durg to be produced for a customer can also be found by a jury to have dominion and control over the drug, and therefore possession. Cellino v. United States, 9 Cir., 276 F.2d 941; United States v. Malfi, 3 Cir., 264 F.2d 147, certiorari denied Malfi v. United States, 361 U.S. 817, 80 S. Ct. 57, 4 L. Ed. 2d 63; United States v. Moia, 2 Cir., 251 F.2d 255; cf. Gallegos v. United States, 10 Cir., 237 F.2d 694. On the other hand, the casual facilitator who knows that a given principal peddles narcotics, but who does not have a working relationship with that principal which would enable him to assure delivery, lacks dominion and control and does not have possession.
Possession, actual or constructive, must be shown with respect to each individual conspirator, facilitator, or aider and abettor. Possession by another defendant by itself is not sufficient. See United States v. Santore, supra, 2 Cir., Nov. 16, 1960, 290 F.2d 51, opinions by Judges Waterman and Friendly. It is true that three of the six members of the court in the Santore case held the contrary view that possession by a codefendant was sufficient to sustain conviction of an aider and abettor, even though the latter did not have actual or contructive possession. But since it was not a majority view, it cannot be taken as the law governing the retrial of this case unless perchance the Supreme Court meanwhile has spoken and so held. Admittedly we cannot foretell the eventual development of the law, but it does not seem amiss to suggest to the trial judge the obvious precaution that he avoid a charge based on legal principles held erroneous by half our appellate bench.
From the recital in our original opinion of Agent Newkirk's testimony at the trial, it appears that defendant did not have physical possession of the narcotics, but introduced Newkirk to Lopez - "one of his partners or his supplier" - and Lopez took Newkirk to Fanfan, who made the actual sale. Thus the question of constructive possession by defendant became all-important. Since the charge did not go beyond the general language of the statute, or define or explain the meaning of possession, a remand for a new trial is also required on this ground as well as on the refusal to inspect the grand jury minutes. The Government urged that the conviction be affirmed on an alternative theory treating defendant as an aider or abettor of the actual possessor; but that was not even mentioned in the charge, and hence is in no event available to sustain this verdict. Pereira v. United States, 347 U.S. 1, 10, 74 S. Ct. 358, 98 L. Ed. 435; Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S. Ct. 766, 93 L. Ed. 919.
We yield to no one in our horror at the evils of the narcotics trade. Nevertheless we feel that law enforcement, here as in all cases, must be in accordance with American legal principles and, in any event, must not go beyond Congressional directives. Moreover, suppression of the narcotics trade can hardly turn uniquely on extension of the unusual presumption accorded the Government in 21 U.S.C. § 174, for the Government has at hand many other statutory prohibitions under which it may proceed. See, e.g., 26 U.S.C. §§ 4704, 4705, and 7237; Papalardo v. United States, 6 Cir., 218 F.2d 694, certiorari denied 349 U.S. 920, 75 S. Ct. 659, 99 L. Ed. 1252. We know of no reason why all narcotics prosecutions should be based on this one statute when legal conflicts may be avoided by prosecution under other statutes.
The conviction must therefore be reversed and the action remanded for a new trial where the jury should be charged in accordance with the above opinion. The defendant's petition for rehearing is therefore, after consideration, also denied.
LEONARD P. MOORE, Circuit Judge (concurring in part; dissenting in part).
To understand the difficulties (and the attendant delays) presented in this case, the factual background must be reviewed.
On July 17, 1958, Hernandez, with defendants, Fanfan and John Doe (alias Pepe, alias Choca) were indicted in a two-count indictment (I) for receiving, concealing, selling and facilitating the transportation, concealment and sale of 140 grains of heroin "after the said narcotic drug had been imported and brought into the United States contrary to law, knowing that the said narcotic drug had theretofore been imported and brought into the United States contrary to law * * *" (21 U.S.C.A. §§ 173, 174); and (II) for a conspiracy to violate Sections 173 and 174. "John Doe" pleaded guilty before trial. Hernandez and Fanfan were tried before a jury and convicted on both counts on September 25, 1958.
The insufficiency of the government's proof to establish that Hernandez had possession or control of a narcotic drug or that he knew it was imported was directly before us upon the appeal. A second important point of error was raised, namely, the trial court's refusal to inspect for possible inconsistencies the Grand Jury minutes of testimony given by the government's principal witness. Hernandez' counsel, with conceded awareness of the government's difficulty of obtaining affirmative proof as to the source of the narcotics because of the very nature of the illicit traffic therein, with persuasive reasoning advanced the theory that to overcome this proof problem Congress created the limited presumption of knowledge from the basic fact of possession and that it is not too great a burden to place on a possessor the burden of explanation because the possessor should know where he obtained the drug. As an additional reason for the limitation of the presumption to possessors, counsel pointed out a possible constitutional objection, were the presumption not so construed, because of the doctrine that there be some rational connection between the presumed fact and the basic fact (Tot v. United States, 1943, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519; Morrison v. People of State of California, 1934, 291 U.S. 82, 54 S. Ct. 281, 78 L. Ed. 664; Constitutionality of Rebuttable Presumptions, 55 Col.L.Rev. 527, 530 (1955)).
In brief and in argument on the possession presumption point, Hernandez' counsel relied primarily on our then just announced decision in United States v. Santore et al., 290 F.2d 51. In that case, the conviction of Santore on Count Two was reversed because two members of the panel believed that there was insufficient proof that Santore "had a voice in deciding, or could control, what was to be done with the narcotics" and that he "functioned only as an intermediary between the agents, as purchasers, and Casella and his partners, as sellers." This, the majority held, was inadequate to support the conviction "absent physical custody of the drugs" or that "he exercised that type of control over them and their disposition which we hold constitutes possession." United States v. Landry, 7 Cir., 1958, 257 F.2d 425, was also cited.
The government in Santore applied for a rehearing in banc which by a divided court was granted (March 9, 1960). Reargument was heard on March 16, 1960, by the five then-active Judges (Judge Smith became a member of the Court on September 14, 1960, and considered the case on the record and briefs).
Pending determination of Santore and on August 24, 1960, we filed our opinion in Hernandez. Because of the error in not examining the Grand Jury minutes, the conviction was reversed (Per Curiam) and the case remanded for a new trial (United States v. Hernandez, 2 Cir., 1960, 282 F.2d 71). The possession presumption issue was not discussed because it was hopefully expected that by the time Hernandez was reached for retrial some decision would have been announced either by the in banc court in Santore or by some Supreme Court action on the certiorari petitions filed by other defendants in the Santore case.
On September 7, 1960, and prior to any decision in Santore by the in banc court, counsel for Hernandez filed a petition for rehearing and reconsideration of the decision in which he quite properly and accurately pointed out that any retrial might be "an exercise in great uncertainty" and that "without instructions from this Court as to how to apply the law to those facts at a retrial of the case, the trial court will be placed in a situation of having to guess, at appellant's [Hernandez'] peril, what exactly the state of the law in this Circuit is as to establishing the requisite proof of entitling the prosecution to use the statutory presumption in 21 U.S.C. § 174" (Pet. for Rehearing). Because of the bearing that a decision in Santore would have on Hernadez, his counsel requested us not to return the case to the district court for retrial until Santore was decided. We acceded to that request.
On November 16, 1960, the in banc court filed four opinions. The effect of the presumption (21 U.S.C. § 174) was the primary issue in Count II of the indictment against Santore and Lo Piccolo charging a sale of heroin on December 11, 1957. They had been convicted upon the trial. Upon appeal, Santore's conviction on Count II was reversed by a divided court (Judge Hand and Judge Waterman voting for reversal, Judge Byers*fn1 voting for affirmance). In substance the majority held that, despite the fact that the purchaser gave the purchase price ($6,000) to Santore, he "functioned only as an intermediary" and that, although he "was, without question, an active member in the criminal conspiracy," nevertheless that membership "was not such that, absent physical custody of the drugs, he exercised that type of control over them and their disposition which we hold constitutes possession" (290 F.2d 51). Lo Piccolo's conviction on Count II was also reversed because the majority believed that his conviction would be sustained "only if we find that he had possession of the drugs" and because, in their opinion, there was no evidence of control or possession.
However, this result was changed by the decision of the in banc court which affirmed the original convictions of Santore and Lo Piccolo on Count II. The facts relied upon in the opinion written by Chief Judge Lumbard showed that Lo Piccolo had "constructive possession" of heroin and that Santore actively assisted, aided and abetted in the heroin sale. The issue was clearly stated: "The question that now presents itself is whether, in order to convict one who purposefully aids and abets others in the sale of narcotics which he knows they possess, it is necessary to show either that he personally had physical or constructive possession of the drugs or that he knew they had been imported." Three Judges (Chief Judge Lumbard and Judges Smith and Moore) held "that such proof is not necessary." In a separate opinion, Judge Smith ...