(dissenting).
This case presents another example of the unfortunate impact of present narcotics statutes on mere addicts, see my concurring opinion in Hawkins v. United States, No. 15514, - U.S.App.D.C. -, F.2d -; and once again raises very serious questions regarding the methods employed by the Federal Bureau of Narcotics in enforcing these statutes.1
Although the narcotics laws are, in Congress’ own view, primarily designed to deter and punish professional narcotics traffickers who prey upon the weak and defenseless,2 they wreak their stiff vengeance upon both these leeches and their victims. Congress recognized that “Drug addiction is * * * a symptom of a mental or psychiatric disorder * * ."3 from which it would appear to follow that the answer to the problem of addiction lies in medical and rehabilitative treatment and not severe, mechanical prison sentences which frustrate rather than facilitate rehabilitation.4 But until Con*291gress, in recognition of its own findings, sees fit to remedy the situation, the judicial machinery must grind out its sorry grist by convicting as traffickers, addicts whose possession of, or transactions with, narcotics bring them within the ambit of the narcotics control laws.
The cloth of judicial self-restraint, however, cannot be stretched to shield the conviction of a narcotics addict whose “tragic dependency upon drugs” was created by agents of the Government who then preyed upon this weakness to induce him to procure narcotics for fellow sufferers in need. That is this case. Accordingly, the conviction should be reversed.
The record shows that one John Cour-sey, after a two-year training course at the Pennsylvania Institute of Criminology, was commissioned as a Treasury narcotics agent on March 16, 1959. He was assigned to the New York field office and almost immediately thereafter detailed to the Washington field office. Under the direction of three other agents, he was assigned to work under-cover in a group of addicts centering around one Dorothy Washington, an under-cover “special employee” of the Narcotics Bureau.5 Miss Washington, herself an addict, financed her “habit” by prostitution. Her special utility to Coursey lay in the fact that she operated a rooming-house which was used as a “pad” — a place where addicts would gather to take their shots of heroin in company — as well as a brothel.
Appellant first became addicted to drugs in 1954 when he was about 18 years old. He paid for the drugs he used by selling his clothes, by stealing from his grandmother, with whom he lived, and by shop-lifting. His shop-lifting led to petty larceny convictions in 1954 and 1958. In April of 1959, appellant was discharged from the District of Columbia General Hospital Rehabilitation Clinic where he had been committed as a “narcotics vagrant.” D.C.Code § 33-416a (Supp. VIII 1960). According to his unchallenged testimony, he was at that time cured of his drug addiction. He obtained regular employment and lived with his grandmother.
It was at this stage of his life, when he had never peddled drugs and was no longer using them, that the agents of the Narcotics Bureau fixed their attention upon him and instituted a course of con*292duct culminating in his present conviction. In May of 1959 “special employee” Washington, who had been a friend of appellant’s for years, began to give him drugs and to invite him to stay at her rooming-house. The circumstances of Trent’s readdiction are detailed in the following uncontradicted testimony:
“Q. Now when you came out [of D. C. General] you were no longer an addict? A. No, sir.
“Q. And you went back to Narcotics in May or June? A. May.
“Q. And the narcotic was heroin ? A. Yes, sir.
“Q. Who got you back on narcotics? A. Informer mentioned in this case. She kept telling me to come—
“Q. Who was it? A. Dorothy Washington.
“Q. Was she your girl friend? A. She had been a friend of mine for years.
“Q. Now how did she get you back on? A. She would give me stuff. She would give me narcotics when we — she had them, and I just started venturing back into it.
“Q. Were you living with her? A. She asked me to come and stay with her.
“Q. Did you? A. Yes.
“Q. Did you actually stay with her or— A. No. She asked me to come and stay. She had a room down in the basement that I could stay there if I would like.” [Emphasis supplied.].
By June of 1959 — one month later — he was again in the throes of addiction and was living rent-free in the basement of Miss Washington’s house with another young woman addict, named Delores Terry, who supported her “habit” by prostitution. With the profits of her profession, she also helped to supply appellant with drugs. Appellant’s other source of income was the fairly regular shoplifting expeditions which he undertook, sometimes with the help of Miss Washington.
Agent Coursey, who had been working for some time among the wretches centering about the special employee’s “pad,” met appellant shox*tly after his re-addiction. The special employee led appellant to believe that Coursey was her boy friend and Coursey conceded that “she may have” told appellant that “he [Cour-sey] was alright.” Between them, the two under-cover agents began to urge appellant to procure drugs for them and, in a few weeks, the two transactions occurred from which this case arises. The first transaction consisted of appellant procuring four capsules of heroin at the standard price of $1.50 per capsule, with money supplied by Agent Coursey. He gave two of the capsules to the agent and retained two for himself. Appellant agreed to obtain these drugs only after Coursey’s repeated pleas that he needed heroin for his sick girl friend.6 In the second transaction, appellant, acting at Miss Washingtoxx’s request, procured four capsules and delivered them to her but was paid by Agent Coursey. These are the two “sales” for which appellant was convicted as a drug peddler.
My brethren hold that the immediate circumstances of the two sales do not amount to entrapment as a matter of law. I do not reach that question. Finding that the Government, through its agents, lured appellant into his dependency on drugs, I would hold that the Government may not prosecute him for offenses that spring directly from his addiction.
In a case most similar to the one before us, the Supreme Court reversed a conviction because it found the defendant had, as a matter of law, been entrapped into selling narcotics to an undercover agent who preyed upon his sympathies as a fellow addict.7 The Court explained *293that “Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.” 8 I think it equally clear that Congress could not have intended that the narcotics laws be enforced by tempting weak-willed persons into addiction, and then convicting them for violations which would not have been committed but for such addiction. The Supreme Court said in Sherman:
“The case at bar illustrates an evil which the defense of entrapment is designed to overcome. The government informer entices someone attempting to avoid narcotics not only into carrying out an illegal sale but also into returning to the habit of use. * * * Thus the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted. Law enforcement does not require methods such as this.” [Id. 356 U.S. at page 376, 78 S.Ct. at page 822.]
I do not leave out of consideration the fact that in Sherman the Supreme Court avoided the problem of judging credibility by resting its conclusion that the defendant was entrapped as a matter of law solely upon testimony of prosecution witnesses. In the instant case, the evidence that the Government agents drew appellant back into drug addiction comes from appellant whose credibility may, of course, be questioned. In my opinion, however, the circumstances not only justify but require a resolution of any doubts in favor of appellant.
Trent’s testimony was essentially consistent with that of Agent Coursey and was corroborated in many respects by defense witnesses. The prosecution introduced no evidence to challenge his testimony that he came out of the hospital cured of his addiction. If that testimony were false, presumably the hospital’s records or its staff members would have been available to contradict it. No such evidence was produced. Appellant’s testimony that he was lured back into addiction by Dorothy Washington, the special employee of the Narcotics Bureau, was likewise uncontradieted. It too could have been refuted, if untrue, simply by calling the special employee to the witness stand. But the prosecution not only failed to call her as a witness, it failed to cooperate in any way with the earnest efforts of appellant to locate her for the purpose of calling her as his witness to corroborate his testimony. Appellant’s efforts to subpoena the special employee at the address of her rooming-house proved unavailing when the marshal reported that she had moved from that address. Appellant’s grandmother testified that she had seen and talked to the special employee in the city ten days before the trial, but that, when she tried to reach her at the address to which Miss Washington was said to have moved the information proved false. The prosecu*294tion’s only contribution to the search was to object to the grandmother’s testimony concerning what the special employee had told her.
. Considering Miss Washington’s employment by the Government, the crucial role she played in making the Government’s case, and the obvious importance of the testimony she could give, an attitude of malevolent neutrality did not discharge the prosecution’s burden. Having failed to make the least effort to produce this critical witness or to facilitate appellant’s search for her, the prosecution should not be permitted to challenge the presumption that the witness would have corroborated appellant’s testimony.9
Concluding as I do that the circumstances disclosed by the record constitute entrapment as a matter of law, I would reverse the conviction and remand the case to the District Court for entry of a judgment of acquittal.
I should add that even if the issue of entrapment were not resolved in favor of appellant as a matter of law I think the conviction should be reversed and the case remanded for a new trial because of the absence of a missing witness instruction, see note 9 supra, and also on the ground that, contrary to my brethren’s conclusion, the entrapment issue was not submitted to the jury under appropriate instructions. The District Court failed to separate the element which the defendant must establish (i. e., inducement) from that which the prosecution must prove beyond a reasonable doubt (i. e., predisposition). The necessity for drawing this distinction to the jury’s attention is fully discussed by Judge Learned Hand in United States v. Sherman, 2 Cir., 1952, 200 F.2d 880, and need not be elaborated here. I agree with Judge Hand that failure to give such instructions is “plain error.” Fed.R.Crim.P. 52(b).
. For other instances, see Sherman v. United States, 1958, 856 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (discussed infra); and United States v. Silva, D.C.S.D.N.Y.1959, 180 F.Supp. 557, reported in N. Y. Times, March 5, 1959, p. 53, where Judge Weinfeld acquitted an accused narcotics violator upon a finding that a paid informer of the Bureau introduced the defendant to the drug habit and then turned him over to a Bureau agent who made the “illegal” sale (see my statement in Jones v. United States, 1959, 105 U.S.App.D.C. 326, 330 n. 16, 266 F.2d 924, 928 n. 16).
. See H.R.Rep. No. 2388, 84th Cong., 2d Sess. 9, 54 (1956), quoted in my concurring opinion in Hawkins v. United States, No. 15514, - U.S.App.D.C. -, - F.2d.
. Id. at 54.
. According to the Honorable James V. Bennett, Director of the Federal Bureau of Prisons:
“Prisons, both state and federal, in the years immediately ahead will be faced inevitably with the problems of narcotic offenders, addict and non-addict alike, who are weighed down by the hopelessness and the bitter futility of sentences which seemingly stretch into infinity. What can the institution offer the man serving 30, 50 or 80 years with no prospect for parole or hope of mitigation of his sentence?” [“A Prison Administrator Views Today’s Narcotics Problem,” 3/27-28/58, p. 11, Symposium on the History of Narcotic Drug Addiction Problems, National Institutes of Health, Bethesda, Maryland, quoted in Statement of Circuit Judge Henry W. Edgerton on Sentences in Narcotics Cases, District of Columbia *291Circuit Institute on Sentencing, p. 2, Feb. 1900.]
Another portion of Judge Edgerton’s statement is quoted in my concurring opinion in Hawkins v. United States, No. 15514, - U.S.App.D.C. -, - F.2d
. “Special employee” is Agent Coursey’s repeated description of Dorothy Washington’s relationship to the Government. Miss Washington did not appear at the trial and the record does not disclose the mode of compensation. From assertions in other cases, it would appear that narcotics employees are compensated in various ways: (1) actual cash payments for each narcotics offender turned over to the Bureau for prosecution (See note 1 supra concerning the case from the Southern District of New York, reported in the N. Y. Times, March 5, 1959, p. 53. The special employee there was paid forty to sixty dollars for each case he “made” and had earned some $1,-200 for eighteen cases reported over a three-year period); (2) immunity from prosecution under the narcotics laws in return for continued cooperation in reporting other offenders (See trial transcript in Willis v. United States, - U.S.App.D.C. -, 285 F.2d 663, where the defendant testified he was offered immunity from prosecution for making sales to suspected offenders in the presence of a narcotics agent and was himself framed when he refused to continue this cooperation) ; (3) payment in narcotics (See Deutsch, The Trouble With Oops 98 (2d ed. 1955); and Senate Committee on the District of Columbia, Investigation of Crime and Law Enforcement in the District of Columbia, S.Rep.No.1989, 82d Cong., 2d Sess. 15 (1952)).
The use of informers in narcotics cases is well described and documented in J. Goldstein, Police Discretion Not To Invoke the Criminal Process: Low Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543, 562-73 (1960). The author suggests there that the practice of trading information for immunity from prosecution may be illegal. Id. at 568.
. Trent testified that he thought this “gii-1 friend” was Dorothy Washington.
. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819. The facts were that the defendant met a Government informer at a doctor’s office while both were undergoing cures for addiction. Their accidental acquaint-*293anee grew until the informer, claiming he was not responding to treatment, requested the defendant to secure narcotics for him. The defendant refused, became evasive, but finally capitulated to recurrent pleas. Although the Government attempted to show that the defendant’s prior narcotics convictions demonstrated ready compliance, the Court found this insufficient to demonstrate predisposition. The Court pointed out that there was “no evidence that petitioner himself was in the [narcotics] trade.” Id., 356 U.S. at page 375, 78 S.Ct. at page 822.
. 356 U.S. at page 372, 78 S.Ct. at page 821. In a concurring opinion Justice Frankfurter, joined by Justices Douglas, Harlan and Brennan, took issue with this rationale. He argued that “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government • to bring about conviction cannot be countenanced.” Id. 356 U.S. at page 380, 78 S.Ct. 825. This view also covers this case. The “police conduct revealed [here] falls below standards, to which common feelings respond, for the proper use of governmental power.” Id. 356 U.S. at page 382, 78 S.Ct. at page 825.
. The prosecution’s failure either to produce the special employee, to reveal her new address and the new name she had assumed, or to explain her unavailability entitles appellant, on due process grounds, to a new trial and, if the Government does not come forward with the required information or explanation, to an acquittal. Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Roviaro, the Supreme Court reversed a conviction because of the Government’s refusal to disclose the identity of the informer to whom the accused had allegedly sold narcotics, notwithstanding the fact that the defendant very likely knew the informer’s name and how to reach him (see dissenting opinion of Mr. Justice Clark). The special employee in the instant case surely played as central a role, especially as to the alleged entrapment and the second transaction, as that played by the informer in Roviaro. If “the fundamental requirements of fairness,” 353 U.S. at page 60, 77 S.Ct. at page 628 required disclosure of the informant’s name in Roviaro, they required the disclosure of Dorothy Washington’s new name and address here.
At the very least, I think appellant was entitled to a new trial on the ground that the jury was not given a missing witness instruction. The rule is that “[I]f a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavor-orable.” Graves v. United States, 1893, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021. A “special employee” for the Government is a witness “peculiarly within [its] power to produce.” See authorities collected in my dissenting opinion in Richards v. United States, 107 U.S.App.D.C. 197, 201, 275 F.2d 655, 659, certiorari denied, 1960, 363 U.S. 815, 80 S.Ct. 1253, 4 L.Ed.2d 1155. To put it mildly, special employee Washington was in a position “to elucidate the transaction.”
Although the defendant did not request such an instruction, I think its omission is “plain error * * * affecting substantial rights.” Fed.R.Crim.P. 52(b).