Moore, Kaufman and Hays, Circuit Judges. Hays, Circuit Judge (dissenting).
IRVING R. KAUFMAN, Circuit Judge:
In order to convict a defendant for the concealment or transportation of illegally imported narcotics under 21 U.S.C. § 174, the government must prove that he knew the narcotics to be illegally imported. Since this subjective element of knowledge is often difficult to establish by direct evidence, the government generally relies upon the presumption contained in § 174, which provides that unexplained possession of narcotics shall be deemed sufficient evidence of knowledge of illegal importation. In this case we are called upon to resolve several questions concerning the employment of this presumption: whether the prosecution offered evidence of possession sufficient to invoke the presumption, whether the court properly instructed the jury on its consideration of the presumption, and, finally, whether the Constitution prohibits the application of the presumption in cases involving the transportation of heroin.
At approximately 9 o'clock on the evening of February 20, 1967, an unnamed informant employed by the Federal Bureau of Narcotics placed a telephone call to Joseph Pego.*fn1 Clarence Cook, a Special Agent of the Bureau, who had once previously purchased narcotics from Pego, monitored that call. The informant told Pego that Cook wished to purchase an ounce of heroin. Pego replied that he did not have this amount of heroin and would have to get it. He directed Cook and the informant to proceed to the informant's residence where he would telephone them when he had obtained the heroin.
Twenty minutes after he received the call, Pego left his residence in the Bronx and proceeded by taxi to the Bat Cave Bar in Manhattan. Pego arrived at the Bat Cave at 9:35, ordered a drink, and then walked to the back of the bar where he talked with a group of customers who were playing pool. At 10:15 appellant Ralph Febre entered the bar and talked briefly with Pego. After five minutes, Febre and Pego left the Bat Cave together and continued their conversation in Febre's car, which was parked in front of the bar. Just before 10:30, Pego returned to the bar alone, then immediately telephoned the informant to tell him that "he had the stuff" and would deliver it to Cook at the corner of 170th Street and Jerome Avenue in half an hour. Pego then returned to the car and drove off with Febre, who dropped him at the corner where the sale was to occur. When Cook arrived, Pego gave him an ounce of heroin and received in return $50 Cook owed for a previous purchase and $1200 of the $1400 price of the ounce.
Agent Cook arranged to pay the remaining $200 to Pego on February 23, 1967 at the corner of 57th Street and 9th Avenue. Pego was driven to the meeting place by Febre, to whom he handed a "wad of money" after he had received payment from Cook. This series of events formed the basis of count two of the indictment, the first substantive offense with which Febre was charged.*fn2
Cook and Pego met once again at the corner of 170th Street and Jerome Avenue on the evening of March 8. At this time Cook complained about the quality of the heroin he had purchased, and after discussion, it was agreed that Pego would provide Cook with a sample before Cook made further purchases and that this sample would be delivered later that evening. Pego proceeded to 1551 Walton Avenue where he entered Apartment 5B, the residence of Ralph Febre's brother Joseph. Five minutes later he was observed leaving the building in the company of Ralph Febre. He then left Febre and delivered the sample to Cook himself.
Cook apparently considered the sample satisfactory for five days later he negotiated with Pego for the purchase of a quarter kilogram of heroin. Pego set the price at $8700 and promised to deliver the "quarter" within forty-five minutes. After a visit to Apartment 5B at 1551 Walton Avenue Pego returned to the place where Cook was waiting to inform him that there would be a delay. Pego then returned to 1551 Walton Avenue. Two hours later Ralph Febre also entered the building. After fifteen minutes, Pego emerged, returned to Cook, and told Cook that "his people were unable to get the half a kilogram [from which Cook's "quarter" was to come] and to see him in a couple of weeks." Count three of the indictment arose out of these facts.
Cook did see Pego again three weeks later. On this occasion, April 4, 1967, it was agreed that on the following evening Pego would provide Cook with the quarter kilogram of heroin he had previously been unable to obtain. The next evening, after directing Cook to await delivery at the Port Authority Bus Terminal at 178th Street and Broadway, Pego joined Febre and one Edward Bless, named as a defendant in Count Four, at the Bat Cave Bar. After ascertaining that Pego had seen Cook, Febre asked, "What does he want?" When Pego replied "a quarter" Febre turned to Bless and asked "if he could handle it." Bless said that he could and that it would take about forty-five minutes. A few minutes later he left the bar. After Bless' departure, Febre and Pego continued their conversation which centered on experiences in the Armed Forces. At one point in the conversation, however, Febre remarked, "Things were going to be much better now that Willy was dead because Eddie was a much better guy to get along with."
One hour after he had left the bar, Bless returned and told his colleagues, "It can't be done tonight. It has to be tomorrow." Although Febre seemed to object to this statement, Bless apparently prevailed, and the sale did not occur until the next afternoon, April 6. These events gave rise to the fourth count of the indictment.
Pego was arrested as he transferred the quarter kilogram of heroin to Cook on April 6. Subsequently both Bless and Febre were also arrested. On November 1, 1968, following a five-day trial before Judge Metzner and a jury Febre was convicted of the substantive crimes set forth in counts two through four of the indictment and also for conspiring with Pego and Bless to violate § 174, the charge contained in Count Five of the indictment.*fn3 Judge Metzner sentenced him to four concurrent six-year sentences.
Febre concedes that the evidence presented by the government sufficed to prove that he had facilitated the transportation of heroin. However, he contends that the prosecution failed to show that he knew this heroin to have been illegally imported, an essential element of the crimes for which he was charged and convicted. Admittedly, there was no direct evidence of knowledge of illegal importation. But Febre also claims that the government's proof failed to show that he ever ...