(concurring in part and dissenting in part).
I adhere to the views I expressed in the panel opinion I filed on October 2, 1959. Accordingly, I agree with all the results reached by the in banc court, except that I dissent from the decision of a majority of this court affirming the convictions of Santore and Lo Piccolo on Count II.
The interpretation Judge Hand and I placed upon the events of December 10 and 11, 1957 that gave rise to the Count II allegations is set forth in my opinion of October 2, 1959. No useful purpose will be served by now pointing out how that interpretation differs from the several interpretations reached by other members of the present in banc court.
I do feel compelled to state my reasons for disagreeing with the view of three of my colleagues with reference to the interrelationship of 18 U.S.C. § 2 and 21 U.S. C.A. § 174. They appear to be of the belief that proof that one defendant possessed narcotics would be sufficient to sustain the conviction under 21 U.S.C.A. § 174 of all who aid and abet that one defendant, even though the alleged abettors never had physical or constructive possession of the narcotics. I submit, first, that when one invokes the general aiding-and-abetting statute, 18 U.S.C. § 2, one offends the statutory scheme of 21 U. S.C.A. § 174; and, second, that even if this invocation were proper it would in no way lessen the need to prove that the alleged abettor possessed the narcotics. Therefore, I fear that if this view should become established in this or any other circuit, it would only serve further to confuse an already untidy area of the law.
Section 174 forbids: (1) knowing illegal importation of narcotics; (2) receipt, concealment, purchase or sale of narcotics known to have been illegally imported; (3) facilitation, in any manner, of the transportation, concealment or sale of narcotics knowing the narcotics to have been illegally imported; and (4) any conspiracy to commit any of the above enumerated acts. At the risk of understatement one may say that this detailed statute is comprehensive! To engraft the general provisions of 18 U.S. C. § 2 onto this statute, so clearly an all-inclusive and self-contained one, would be to increase the duplications that already exist. For example, I doubt that *80the line between aiding and abetting on the one hand, and conspiracy on the other, has ever been satisfactorily drawn. Compare Cosgrove v. United States, 9 Cir., 1954, 224 F.2d 146, 150-155 and Pereira v. United States, 1954, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435. How much more difficult it will be to draw a distinction between, for instance, aiding and abetting the sale of narcotics, and the facilitation, in any manner, of such a sale. My three colleagues would make such a distinction, for the statutory scheme they envisage would require proof of possession when a defendant is charged with the facilitation of the narcotics traffic but not when he is accused of aiding and abetting this traffic. I cannot join in attributing such eccentricity to Congress.1
I have a further difficulty with reliance upon 18 U.S.C. § 2, even if one assumes that 21 U.S.C.A. § 174 is not all-inclusive, and 18 U.S.C. § 2 may be employed to buttress a charge of violating 21 U.S.C. A. § 174.2 To be guilty of aiding and abetting the commission of a crime of a type that requires that the principal have a specific intent or have specific knowledge, the defendant abettor must be shown to have shared fully in that intent or knowledge. Johnson v. United States, 8 Cir., 1952, 195 F.2d 673, 675; Bacon v. United States, 10 Cir., 1942, 127 F.2d 985, 987; Morei v. United States, 6 Cir., 1942, 127 F.2d 827, 830-831. See also Ramirez v. Chavez, 1951, 71 Ariz. 239, 226 P.2d 143, 146; Combs v. Commonwealth, 1928, 224 Ky. 653, 6 S.W.2d 1082, 1084; Osborne v. Baughman, 1927, 85 Cal.App. 224, 259 P. 70. A fact required to be proved in order to convict a principal under 21 U.S.C.A. § 174 is his knowledge that the narcotics were illegally imported. This knowledge may either be proved directly or by the defendant’s failure satisfactorily to explain his possession of the narcotics. Inasmuch as the purported aider-and-abettor must be shown to have had this same knowledge, it also follows that his knowledge can be proved only in these two ways. Thus under 21 U.S.C.A. § 174 personal possession, whether physical or otherwise, is as essential to the conviction of an offending aider and abettor as it is to the conviction as a principal of one who commits a specific offense.
I concede that some support for my colleagues’ position is to be found in language in United States v. Cohen, 2 Cir., 1942, 124 F.2d 164, 165, certiorari denied Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210, rehearing denied 316 U.S. 707, 62 S.Ct. 941, 86 L.Ed. 1774. However, the language relied upon has never been followed prior to the present case. Recently the identical argument which my colleagues here would accept was advanced by the Gov-*81eminent in Cellino v. United States, 9 Cir., 1960, 276 F.2d 941. There the conviction was affirmed, but the affirmance was carefully based upon the finding that the defendant himself possessed the narcotics in the sense of exercising dominion and control over them. In a careful analysis the Ninth Circuit pointed out that in the Cohen case there was some evidence of possession in each of the defendants charged, 276 F.2d 941, 945. I subscribe to this analysis of the Cohen case and to the refusal to utilize 18 U.S. C. § 2 in prosecutions under 21 U.S.C.A. § 174.
I am authorized to state that Judge CLARK concurs in this opinion.
FRIENDLY, Circuit Judge.I join in Chief Judge LUMBARD’S opinion with respect to the conviction of Lo Piccolo on Count II; the evidence supported findings both that the heroin delivered by Ignazio Orlando on December 11 had been in Lo Piccolo’s possession in his apartment and that Orlando transported the heroin on Lo Piccolo’s instructions so that Orlando’s possession would also be Lo Piccolo’s. I join also in the affirmance of Santore’s conviction on Count II. Santore facilitated the transportation and sale of heroin on December 11, and there was direct evidence that he knew he was trafficking in a drug that “comes off the boat”; hence it is unnecessary to consider whether he was sufficiently a partner that the possession of others may be attributed to him. However, I think the convictions of Nar-ducci and Tarlentino on Count IV must be reversed, as well as those on the conspiracy count.
While I see no reason to read into the aiding and abetting statute, 18 U.S.C. § 2, an exception making it inapplicable to the offense defined by 21 U.S.C.A. § 174, this by no means ends the matter. Congress has chosen to make knowledge that the narcotics were imported or brought into the United States an essential element of the latter offense; and it would be altogether incongruous that a person could be convicted as an aider or abettor, whom 18 U.S.C. § 2 makes “punishable as a principal,” without proof of an element essential to convicting the principal himself, especially when 21 U.S. C.A. § 174 requires such proof in the case of one charged as a facilitator. It is true that, as said by Judge Augustus N. Hand in United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, 165, certiorari denied Bernstein v. United States, 1942, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210, rehearing denied 316 U.S. 707, 62 S.Ct. 941, 86 L.Ed. 1774, under the aiding and abetting statute it is “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.” However, Judge Hand did not say that a defendant prosecuted under 21 U.S.C.A. §174 may be convicted as an aider or abettor without a showing either of possession or of knowledge that the narcotics were “imported or brought into the United States contrary to law.” Examination of the record and briefs reveals that this point was not raised, and neither of the two cases cited in support of the statement, United States v. Hodorowicz, 7 Cir., 1939, 105 F.2d 218, 220, certiorari denied 1939, 308 U.S. 584, 585, 60 S.Ct. 108, 84 L.Ed. 489, 490, and Vilson v. United States, 9 Cir., 1932, 61 F.2d 901, dealt with that problem.
Assuming in the government’s favor that Tarlentino’s report of the failure of the Narducci-Tarlentino attempt to pick up the heroin would otherwise suffice to make him a facilitator of transportation or concealment under 21 U.S.C.A. § 174 or an aider and abettor under 18 U.S.C. § 2, it is plain that Tarlentino never had possession of the narcotics and the government, was thus obliged to present evidence sufficient to support an inference that he knew the narcotics had been “imported or brought into the United States *82contrary to law.” Just how much evidence is required for this need not be here determined — the government argues that none at all need be offered when the defendant knows the narcotic is heroin since the importation of heroin or of opium for manufacture into heroin is absolutely forbidden, 21 U.S.C.A. § 173. It is enough here that the statute cannot be deemed satisfied by showing only that a defendant knew he was aiding a narcotics transaction, since such a reading would give no effect to the words “knowing the same to have been imported or brought into the United States contrary to law” and would render the paragraph as to the evidentiary effect of possession largely supererogatory. There was no evidence that Tarlentino had any knowledge of the source of the narcotics in Napolitano’s car, that he was experienced about narcotics in general, or that he knew these narcotics were heroin. The government thus failed to discharge its burden.
The same considerations apply to Nar-ducci, save for the contention that his grasp of the package, for a period testified by the government agent to have been “less than half a minute,” constituted “possession” and thus relieved the government of the need of proving knowledge of the narcotics’ source. To hold this would give the act of touching an unwarranted talismanic effect. Possession implies ability to exercise control; Nar-ducci was thwarted before achieving this. Decisions, both by divided courts, that fingerprint evidence is enough to permit an inference of possession, Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, 393, certiorari denied 1950, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631; United States v. Pisano, 7 Cir., 1951, 193 F.2d 361, 365, are not to the contrary; in such cases there was no evidence that the contact was but momentary, as there was here.
. Three of my colleagues read the narcotics laws so as to require proof of possession or proof of actual knowledge of illegal importation in order to convict a facilitator but not to require such proof in order to convict an aider or an abettor. They begin with the premise that facilitation covers a “broader range” than aiding-and-abetting, citing Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751. But that case teaches, see page 756, that the term “facilitation” has no technical legal meaning. How then can the premise be valid, and it be said that “facilitation” is broader or narrower than “aiding-and-abetting”? See United States v. Peoni, 2 Cir., 100 F.2d 401, 402. But even if one assumes the validity of their premise there are further Jifficulties. These colleagues maintain that it is rational to require more rigorous proof to convict for facilitation because that term embraces a wider range of activities than the term aiding- and-abetting embraces. However, under Section 174 proof of possession or actual knowledge of illegal importation is required to convict a receiver, a concealer, a purchaser, or a seller of narcotics. Surely each of these last four named activities embraces a narrower range of specific activity than the aiding-and-abetting of any of them embraces, and yet no lesser proof is required to convict for these offenses than is required to convict for facilitation.
. Judge Friendly discusses this point in his separate opinion, and I subscribe to his analysis thereof.