dissents with opinion.
FRANK, Circuit Judge (dissenting in part).
I think we should reverse the conviction on the second count for failure to prove the essential fact, i. e., a “transfer” of marijuana cigarettes on March 8, 1946.1 The purported proof of that transfer consisted solely of the following:
Two federal officers, Reynolds and Mc-Cordic, testified that on March 8 they met an unnamed informer (who did not testify). “Agent Reynolds searched the informer,” and' Agent McCordic “supplied him with $5.00 of official advance funds with instructions to make purchases from the defendant.” The officers then drove the anonymous informer in a car for several blocks; the informer then left the car; the officers saw him enter a shop and talk to the defendant. They testified that they did not see the defendant trans*838fer anything to the informer. The informer came- out o-f the shop and walked some distance, the Agents following him. He then turned over to Agent Reynolds 10 marijuana cigarettes. There was no testimony whatever that the.search of the informer, before he entered the shop, disclosed that he then had no marijuana cigarettes in his possession.1® Therefore, for all that appears from the testimony, the cigarettes he turned over to the Agents after leaving the shop may have been in his possession before he entered it. Accordingly, the government did not prove the transfer directly, and did not do so indirectly by any showing that the informer’s sole source of the cigarettes was the defendant:
*839My colleagues suggest that the defendant at the trial could have asked the officers whether their search of the informer before he conversed with the defendant showed cigarettes in the informer’s possession, and that, by failing so to ask, defendant must be regarded as having conceded the crucial fact at issue. I cannot agree. Such a ruling puts the burden of proving innocence on the defendant. Bihn v. United States, 328 U.S. 633, 637, 66 S.Ct. 1172, 90 L.Ed. 1485; Minner v. United States, 10 Cir., 57 F.2d 506, 512; Williams v. State, 30 Ala.App. 395, 6 So.2d 525; Commonwealth v. Marmo, 137 Pa.Super. 467, 9 A.2d 181.
The government, in its brief, relied on a presumption of “regularity” relating to acts of government officers; it urged that the Agents must be presumed to have found no cigarettes when they searched the informer, because otherwise they would not have been properly discharging their duties in sending him to meet the defendant. But this argument rests on a misinterpretation of this so-called presumption. As I understand the rule, an official is presumed not to have violated a duty imposed on him by statute (as for instance, that an officer gave a notice when the statute so required, or determined facts prescribed by statute as a condition precedent to his action). That presumption is accordingly invoked only where the legality of an official act is questioned. “Nowhere is the presumption held to be a substitute for proof of an independent and material fact”; United States v. Ross, 92 U.S. 281, 285, 23 L.Ed. 707; United States v. Carr, 132 U.S. 644, 653, 10 S.Ct. 182, 33 L.Ed. 483. Moreover, at best the “regularity” here would mean that, in using informers, the government officers are accustomed to employ a routine which involves first searching an informer and finding that he does not have the forbidden object; but, everything else aside, no evidence of such a routine was proved at the trial.
This court, however, from previous cases of this sort, does know that there is such a routine and that government attorneys are fully familiar with it. We should, then, assume that the experienced government counsel in the instant case did not by inadvertence omit to ask the government Agents, when on the witness stand,, whether the search of the informer revealed that he had no cigarettes before he interviewed the defendant. In other words, any inference from the Agents' testimony should be favorable to the defendant.
Defendant “moved to dismiss and set aside the verdict on the basis that it is against the weight of the evidence * * * **
a More in detail, the entire testimony on this subject was as follows:
1. Testimony of Agent MeCordie:
“Q. When is the first time you saw the defendant? A. On March 8th. .
“Q. What happened? A. On that date. Agent Reynolds and myself met an informer—
“Q. What did you do? A. We met the informer at 145th Street and Riverside Drive at around 3:30 in the afternoon.
“Q. What happened? A. Agent Reynolds searched the informer and I supplied him with five dollars of official advance funds with instructions to make purchases from the defendant.
“Q. What did you do? A. We drove from there to 140th Street and St. Nicholas Avenue and then on to Eighth Avenue where the informer got out of the car and walked east to Seventh Avenue. Agent Reynolds and I was following him and we saw the informer enter the cleaning establishment at No. 2401 Seventh Avenue and talk to a man operating a pressing establishment right back of the window there, the plate glass show window. I stood and watched to make sure we could keep the informer under observation at all times and Agent Reynolds crossed the street and walked by the cleaning establishment to get a close look at who the informer was talking to. .
“By the Court:
“Q. You saw him go across the street? A. I did.
“Q. You saw him go close to the window? A. I did, sir.
“Q. Was he in a position to see through the window? A. Yes, sir.
“By Mr. Taylor:
“Q. What did you see? A. Agent Reynolds then returned to the corner and I walked by to obtain a close look at the person that the informer was talking to, and the defendant was operating — standing across a small counter from the informer and talking with him. I then returned to the corner with Agent Reynolds and I, we, wore standing on where we -could watch through the window and the defendant walked to the back of the store, came on back toward the front of the store and again talked a few minutes with the informer and the informer came out and walked back to 141st Street and St. Nicholas Avenue and we followed him back and he turned over to Agent Reynolds ten marijuana cigarettes.
“Q. You saw him when the defendant handed the cigarettes to the informer? A. No, sir. I did not see the transaction.
“Q. Where were you? A. We were across the street and the window is so you can only see down to about here (indicating). It is painted and we could not see any actual transfers going on.
“Q. What did the informer turn over to you ? A. He did not turn over to me anything. He turned over to Agent Reynolds the ten marijuana cigarettes.”
2. Testimony of Agent Reynolds:
“Q. Did you see the defendant March 8, 1946? A. I did.
“Q. Will you tell the Court and jury under what circumstances you saw the defendant? A. I saw him talking to an informer.
“Q. Prior to the time you saw him was somebody else with you? A. I was accompanied by Agent MeCordie.
“Q. And a government witness or employee? A. An employee.
“Q. What happened? A. The employee was given money with which to purchase marijuana cigarettes.
“By the Court:
“Q. Was he given some money? A. To purchase evidence.
“Q. He was given money? A. Yes.
“Q. Was he given any instructions? A. He was.
“Q. What was the nature of the instructions? A. To purchase marijuana cigarettes. He then proceeded to the Lincoln Tailor Shop at 2401 Seventh Avenue.
“By Mr. Taylor:
“Q. Under your observation? A. Entered the tailor shop, spoke to the defendant who was pressing at the pressing machine. I made this observation from the window, standing at the window. Agent MeCordie later joined me and I reerossed the street. I saw the defendant walk to the back of the store, come back again and speak to the informer. The informer left the store, I followed the informer and received from him ten marijuana cigarettes.”