Before CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.
WATERMAN, Circuit Judge, with whom CLARK, FRIENDLY, KAUFMAN, HAYS and MARSHALL, Circuit Judges, concur.
The appeal, now before the in banc court, was originally argued before a panel of three judges, Judges SMITH, HAYS and MARSHALL. Inasmuch as appellant had been convicted of a substantive violation of 21 U.S.C.A. § 174, and, upon appeal, the Government had argued that the conviction was not only sustainable as a violation of that section but was also sustainable on an alternative ground under 18U.S.C. § 2, the judges of the court unanimously voted to consider the appeal in banc in order to clear up any confusion that might exist as to our previous interpretations of these statutes in U.S. v. Santore et al., 290 F.2d 51 (2 Cir. 1960), certs. denied [D'Aria v. U.S., Lo Piccolo v. U.S., Cassella v. U.S., Santore v. U.S., Orlando v. U.S.], 365 U.S. 834, 835, 81 S. Ct. 745, 746, 749, 752, 5 L. Ed. 2d 743, 744, 745, and in U.S. v. Hernandez, 290 F.2d 86 (2 Cir. 1961), and see id. at 91, 93 (Moore, J., dissenting).
No further oral argument was had, and the case was submitted to the in banc court on April 3, 1962. Chief Judge LUMBARD, deeming himself disqualified, did not participate in the final decision on the merits.
Defendant appeals from a judgment of conviction entered after the trial judge, sitting without a jury, found him guilty of a substantive violation of 21 U.S.C.A. § 174. At the conclusion of the trial defendant was acquitted on a charge of conspiring with another to violate the same section.
Pursuant to F.R.Crim.P. 23(a), 18 U.S.C., the trial judge found the following to be the evidentiary facts:
"At about 5:00 P.M. on January 10, 1961 Jacob F. Brown (Brown), then an agent for the Bureau of Narcotics, was seated in the Hollywood Bar on West 116th Street, between Lenox and Seventh Avenues, in the Borough of Manhattan, City and State of New York and Southern District of New York.
"He was then and there approached by defendant Eugene Jones (Jones) who greeted Brown and inquired as to the purpose of Brown's being in the bar. When informed by Brown that he sought to purchase heroin, Jones advised Brown that Brown would be unable to get any because the police had arrested five persons in the bar the evening before and that no one was selling 'stuff' at that time.
"Jones then offered to introduce Brown to Jones's 'connection, who deals good stuff.'
"Brown and Jones then left the bar and walked to West 115th Street, between Lenox and Seventh Avenues, and entered 111 West 115th Street. They proceeded to the rear right of the hall where Jones knocked on a door and upon response asked for 'Big Charlie.' The door was opened by an unidentified man who stated that Charlie was not there then.
"Brown and Jones retraced their steps to the sidewalk in front of the building when Jones said 'There's Charlie now' pointing to a man nearby. Jones left Brown and engaged the indicated man in conversation, out of Brown's earshot. Jones then returned to Brown and advised Brown that he (Brown) 'would be able to get the stuff, and that the price was $150' for an ounce of heroin.
"Jones and Brown then walked to a candy store, east of the building they had entered and waited in the store. While they sat in the store Jones told Brown that 'Charlie was a dealer for himself; that he had one fellow by the name of Mickey who bagged and cut most of his stuff for him.' Jones also, pointing to a car parked outside, told Brown that it was 'Charlie's car.'
"Soon after, Charlie came to the store window and beckoned to Jones and Brown to come outside, which they did. In Jones's presence Charlie handed Brown a package containing heroin and Brown paid Charlie $150.
"Charlie then told Brown that if the latter wanted any more heroin to come back to 115th Street, 'ask for Big Charlie or for Mickey' and not to deal with anyone else. Charlie then entered the hallway of ...