Upon Rehearing in Banc
Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY and SMITH, Circuit Judges.
LUMBARD, Chief Judge.After the original panel, consisting of Judges Hand, Waterman and Byers, filed their opinions on October 2, 1959, the United States petitioned the court for rehearing in banc. Believing the questions raised to be of importance in the administration of the federal narcotics laws, a majority of the active circuit judges, Judges Clark and Waterman dissenting, on March 9, 1960, granted the petition. Reargument as to all appellants, except Lorenzo Orlando, was heard on March 16, 1960 by all the then active judges of this court.1 We have reviewed all the convictions. This court differs with the conclusions of the original panel only with respect to Santore and Lo Piccolo on Count II, and we affirm the convictions on that Count.
We first consider Count II which charged Santore, Casella, Lo Piccolo and Ignazio Orlando2 with the sale of 16 ounces of heroin on December 11, 1957. We briefly summarize so much of the evidence of the activities of the conspirators as sheds light on our consideration of this Count. Quotation marks are used when quoting from Judge Waterman’s opinion filed October 2, 1959.
Santore and Casella were principal members of a group which was dealing in the illegal sale of large quantities of heroin in Philadelphia and New York City. In early 1957, Santore supplied agents Picini and Marshall with heroin through Philadelphia drug traffickers. The agents told Santore that they were not satisfied with the quality of the drugs, and they “insisted that Santore take them directly to his New York ‘connection.’ ” Santore then introduced the agents to Casella who, in Santore’s presence, boasted that he could supply heroin in “ ‘amounts anywhere from half a kilo to a ton * * * with the quality just as it comes off the boat.’ * * * ” San-tore and Casella arranged to sell over 17 ounces of heroin to the agents in New York on October 21, 1957. When this sale was consummated, Santore physically handled the drugs. This sale is the basis for Count I of the indictment.
Thereafter, “during the month of November the agents and Santore and Casel-la discussed the possibility of a partnership for the sale of opium — from Turkey and the best available ‘called red Turkey smoking opium’ — but nothing came of the discussions. The agents desired to see the opium ‘sample,’ but Santore indicated a delivery of one would be delayed. Toward the end of that month, however, at Santore’s urging, tentative arrangements were made for another purchase of heroin.”
*75On December 10, the two agents met with Santore and Casella at the Hotel Edison on West 47th Street in New York to discuss the details of the heroin purchase. While the four were “at dinner that evening at a restaurant Casella announced that he had to call his ‘connection.’ After telephoning, he stated that his connection * * * was the same person who had supplied the heroin for the October 21 sale.” Shortly thereafter Lo Piccolo entered the restaurant and Casella immediately joined him. The agents testified that from where they were sitting they could see Lo Piccolo enter and leave. “After some discussion with Lo Piccolo, Casella returned to the table and said that everything had been arranged and that all he needed to know was the quantity to be delivered.”
The next day final arrangements for delivery of a half kilo of heroin were worked out by Casella. He visited the apartment house where Lo Piccolo lived, and upon his return he reported to the agents “that the drugs would be delivered that evening at 9:00 P.M.” Agreement of the agents as to the details was obtained by Casella in Santore’s presence. Casella obtained the key to the agents’ hotel room and delivered it to Lo Piccolo’s apartment which was some distance from the hotel. When he returned he said that “he had given the key to his supplier and that the delivery would be on schedule.” Casella, Santore and the two agents then went to dinner, after which they returned to the hotel. Santore and one agent remained in the lobby, while Casella and the other stood on the street in front of the hotel.
At about 9 P.M. Ignazio Orlando entered the agents’ hotel room and delivered the heroin. He obtained entrance to the room with the key which Casella had previously delivered to Lo Piccolo’s apartment. Casella saw Ignazio Orlando as he was leaving the hotel, and he told one of the agents that the delivery of narcotics had been made.
“Ignazio Orlando then got into a car in which Lo Piccolo was already seated and drove to the latter’s apartment building. There [Ignazio] Orlando alighted, went into the basement garage, got into his own car, and drove away. Lo Piccolo drove off in the car they both had been in.”
Meanwhile, the agents proceeded to their hotel room where they found a half kilo of heroin. Thereafter, one of the agents, “at Casella’s direction, gave $6,000 to Santore.” Santore then delivered $5,500 in accordance with telephoned instructions and kept $500 for himself. This sale is the basis for Count II of the indictment, and is the one that directly concerns us.
It is clear that Ignazio Orlando, who delivered the heroin, had actual possession of the drugs. Accordingly, he is chargeable with knowledge of the illegal importation of the heroin by reasons of the presumption of 21 U.S.C.A. § 174, which in part reads:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. * * *
“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.”
As to neither Lo Piccolo nor Santore was there eyewitness testimony that he had actual physical possession of. *76the heroin. However, Lo Piccolo’s control over-the arrangements for the particular sale is attested to by the visits Casel-la made to his apartment both before and after reporting to the agents how delivery would be made. It appears possible, if not probable, that the narcotics were brought to Lo Piccolo’s apartment by Ignazio Orlando, the courier for the conspiracy, and never left his possession before they were deposited in the agents’ hotel room. The proof points clearly, however, to Lo Piccolo’s supervision over the entire errand, even to the extent of his accompanying Orlando to the hotel and waiting outside in his ear (which was used for the trip) while Orlando deposited the goods in the room. As constructive possession is enough to bring the presumption into play, the conviction of Lo Piccolo is affirmed. United States v. Cox, 2 Cir., 1960, 277 F.2d 302; Cellino v. United States, 9 Cir., 1960, 276 F.2d 941; United States v. Maroy, 7 Cir., 1957, 248 F.2d 663, certiorari denied 1958, 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414. The evidence as to Casella was also sufficient to warrant a finding of his constructive possession.
Santore, however, acted in no such supervisory capacity. His participation, even had it merely consisted of receipt of the sale price and its delivery in accord with telephoned instructions, would bring him within the terms of the sanction provided by § 174 against one who “facilitates the * * * sale of any such narcotic drug,” Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751, were it not for the added requirement that the facilitator know “the same to have been imported or brought into the United States contrary to law.” It is because of the failure to show knowledge of importation that the original panel reversed San-tore’s conviction on Count II.
Nonetheless, Santore did actively assist the parties making the sale by arranging the meeting on December 10, participating in the preliminary discussion, collecting the price (of which $500 went to him for his role in bringing the parties together), and transmitting the funds as directed by the unknown caller. At the meeting held in the restaurant on December 10, if not before, he learned the identity of Casella’s “connection” who had control over the drugs. In this guise, his association with the transaction is substantial and “purposive” enough to categorize him as an aider and abettor under 18 U.S.C. § 2 3 and the standard traditionally applied by this court. United States v. Peoni, 2 Cir., 1938, 100 F.2d 401. Congress has seen fit, however, to make knowledge of illegal importation an essential element of this crime. 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 of this court, Judges Moore, Smith and the writer, hold that such proof is not necessary.4 Our three colleagues disagree.
*77The presumption established by § 174 does, in terms, apply only to “the defendant [who] is shown to have or to have had possession of the narcotic drugs,” 5 but it would be less than reasonable to assume that Congress intended only those who lay their hands on the goods to bear the burden of explaining while others who manage to avoid contact with the contraband drugs may go free absent any proof that they knew it was imported. Applying the presumption to all the principals in the sale who know that a drug is possessed by one of them is in accord with reason and common sense. To do otherwise would be to undermine the parity of treatment which Congress has prescribed for all the participants in a crime who come within 18 U.S.C. § 2. Each principal must, of course, be given the opportunity afforded the possessor under § 174 — that of explaining the origin of the drugs. But it is hardly likely that the courier who temporarily exercises custody over the narcotics will be better able to reveal their innocent source than will any of the other principals. The rational basis for the presumption in § 174, which constitutionally justifies shifting the burden of proof to the defendant-possessor, is that it is common knowledge that virtually all narcotic drugs must be imported into the United States. Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904. This premise is as rationally applicable to those principals who have not touched the contraband but know of its possession as to those who may have had it in their physical custody.6
Judge Waterman maintains that § 174 is “comprehensive” and that Congress did not mean to have 18 U.S.C. § 2 engrafted upon it. The term “facilitation,” however, has always been construed as covering a broader range than the general aiding-and-abetting provision of the Criminal Code. Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751; United States v. One 1950 Chevrolet 4-Door Sedan, etc., 10 Cir., 1954, 215 F.2d 482.7 By prohibiting “facilitation” in § *78174, therefore, Congress did not reveal any clear purpose to exclude 18 U.S.C. § 2 from the complex of federal narcotics laws; rather its intent appears to have been to extend the coverage of these laws to those not otherwise within the Criminal Code’s definition of principal or accessory. Thus, the presumption in § 174 would apply to all those shown to have had physical or constructive possession and to all principals who knew of such possession. A mere “facilitator” or an accessory after the fact who is not shown to have had possession would not have the statutory presumption cast upon him. As to such co-venturers, Congress has chosen to require proof of knowledge on their part that the drugs were imported.
Both this court and others have, in the past, assumed that any principal who knows of the operation of the conspiracy is impressed with the presumption of § 174 even without any evidence of physical or constructive possession. See United States v. Morris, 2 Cir., 1959, 269 F.2d 100, certiorari denied 1959, 361 U.S. 885, 80 S.Ct. 159, 4 L.Ed.2d 122; United States v. Alexander, 7 Cir., 1955, 219 F.2d 225. This guiding principle was most clearly set forth in this court’s opinion in United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, certiorari denied Bernstein v. United States, 1942, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210. There Judge Augustus Hand, writing also for Judges Learned Hand and Swan, said at page 165 of 124 F.2d:
“Under the first statute (21 U.S.C. § 174) we have quoted it was only necessary to show possession of the narcotics to establish guilt and under the second statute (18 U.S.C. § 550, now 18 U.S.C. § 2), making an abettor a principal it was not necessary that each of the defendants should have had the narcotics, but only that one or more of them had possession while the others aided in the illicit transaction to which that possession was incidental.”
Here it is quite clear that Santore aided and abetted the illegal conduct of the others who had possession. He knew of their possession and that such possession was for the purpose of furthering a joint illegal venture.
Accordingly, we affirm the convictions of Casella, Lo Piccolo and Santore on Count II for the sale of heroin on December 11, 1957.
As to the conspiracy Count V, there was ample evidence to support the convictions of Santore, Casella, D’Aria, Massi and Lo Piccolo.
We next consider the convictions of Tarlentino and Nardueci on Counts IV and V. As the evidence as to these defendants is fully discussed in Judge Waterman’s opinion of October 2, 1959, we need not repeat it.
We all agree that the convictions of Tarlentino and Nardueci on Count V for conspiracy should be reversed for the reasons stated by us with respect to the appellant Snyder in United States v. Stromberg, 2 Cir., 268 F.2d 256, certiorari denied 1959, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102. We held there at page 267 that, “participation in a single isolated transaction was an insufficient basis upon which to bottom an inference of continuing participation in a conspiracy.” See also United States v. Aviles, 2 Cir., 274 F.2d 179, 189-190,. certiorari denied Barcellona v. United *79States, 1960, 362 U.S. 982, 80 S.Ct. 1073, 4 L.Ed.2d 1016.
As to Count IV a majority of the court votes to reverse the conviction of Tarlentino and Narducci for the reasons given in the opinions of Judges Waterman and Friendly. Judge Moore and this writer vote to affirm Tarlentino’s conviction on this Count, finding that he aided and abetted the concealment and transportation of narcotics by driving Narducci to the area where the heroin was to be picked up, driving Narducci away following his failure to get the narcotics, going on to meet Napolitano and Tolentino, reporting the failure to them, and discussing with them what was to be done next. Narducci, on the other hand, was not shown to have associated himself sufficiently with the enterprise to qualify as a principal. Whether this abortive attempt to transport the drugs would come within the “facilitation” provision of § 174 we need not decide. We agree with the original panel’s opinion that his momentary grasp did not amount to the possession required in order to activate the statutory presumption against him. Judge Moore dissents and votes to affirm Narducci’s conviction on Count IV as he feels that Narducci’s actions were sufficient to justify his conviction on the substantive Count as an aider and abettor.
We all agree that the convictions of D’Aria and Massi should be affirmed on Count I as well as Count V for the reasons stated by Judge Waterman in his opinion of October 2, 1959.
In summary, we affirm the convictions of all the defendants as to whom reargument was granted, except that we reverse the convictions of Narducci and Tarlen-tino on Counts IV and V.
. Judge Smith became a member of the court on September 14, I960 and has considered the case on the record and briefs.
. Ignazio Orlando is not appealing his convictions on Counts II, IV, and V. He is not to be confused with Lorenzo Orlando who appealed his conviction on Count V, the conspiracy charge.
. 18 U.S.C. § 2 provides:
“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
“(b) Whoever -willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
. While we rest our affirmance as to Ca-sella and Santore primarily on the ap- ' plication of the § 174 presumption, we ■ also find that as to these defendants there is sufficient evidence apart from this unrebutted presumption. That Ca-sella and Santore had knowledge the heroin the group was selling was imported is quite clear. On October 16, 1957, less than two months before the sale described in Count II, Casella, in the presence of Santore, stated to the agents that he could supply heroin “in amounts anywhere from half a kilo to a ton * * with quality just as it comes off the boat * * * ”. Since it is common knowledge that practically all heroin is imported, it is clear “off the boat” meant imported into the United States.
. This legislative presumption was first drafted on July 7, 1866, by a Conference Committee, called together to iron out differences between House and Senate bills, both entitled, “An Act Further to prevent Smuggling and for other purposes.” Congressional Globe, 39th Cong., Sess. 1, p. 3501. The original version, enacted into law on July 18, 1866, is almost identical to the present provision. It reads “in all cases where the possession of such goods shall be shown to be in the defendant, or where the defendant shall be shown to have had possession therefor, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury.” Congressional Globe, supra, p. 3650.
This provision, with slight modifications, was incorporated in several subsequent amendments, and in 1909 was applied to the importation of opium and opium derivatives, and in 1922 to all narcotic drugs. See 14 Stat. 179 (1866); Rev.Stat. § 3082 (1875); 19 Stat. 214 (1876); 35 Stat. 614 (1909); 38 Stat. 275 (1914); 42 Stat. 596 (1922); 43 Stat. 657 (1924); 65 Stat. 767 (1951); 70 Stat. 570 (1956).
. Judges Clark, Waterman and Friendly say that Congress required knowledge of illegal importation as a condition for conviction of any importer, receiver, concealer, purchaser, or seller of narcotics, and that to hold one guilty of aiding and abetting he must be shown to have shared the same knowledge or intent as is required of the principal. To us, however, this seems to be an oversimplification. By reason of the statutory presumption, Congress has, in effect, said that to be found guilty a defendant must be shown to have had either knowledge or unexplained possession. It follows that if a principal has knowledge or unexplained possession then an aider and abetter who knows of the principal’s possession comes within the purview of 18 U.S.C. § 2.
. The Pon Wing Quong case does not, as Judge Waterman maintains, hold that “facilitating” has no meaning broader than aiding-and-abetting. The Ninth Circuit said: “Since the term ‘facilitate’ seems not to have any special legal meaning, the framers of the statute must have had in mind the common and ordinary definition as expressed by a standard dictionary. Quoting from Webster’s Unabridged Dictionary, ‘facilitate’ is defined as follows: ‘To make easy or *78less difficult; to free from difficulty or impediment; as to facilitate the execution of a task.’ ” 111 F.2d at page 756. That this definition is broader than the standards for aiding-and-abetting set down in this circuit in United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, seems beyond doubt.
Moreover, Judge Waterman in fact agrees with us when he says that “no lesser proof is required to convict” the principals named in the statute — i. e., receivers, concealers, purchasers, or sellers' — than is required to convict a facilitator. All we hold is that the unexplained possession of one of these principals may be attributed to a knowing aider-and-abetter but not to a facilitator. Thus, the prosecution of a facilitator places the same burden on the government as the prosecution of a principal.