(concurring in part; dissenting in part).
To understand the difficulties (and the attendant delays) presented in this case, the factual background must be reviewed.
On July 17, 1958, Hernandez, with defendants, Fanfan and John Doe (alias Pepe, alias Choca) were indicted in a two-count indictment (I) for receiving, concealing, selling and facilitating the transportation, concealment and sale of 140 grains of heroin “after the said narcotic drug had been imported and brought into the United States contrary to law, knowing that the said narcotic drug had theretofore been imported and brought into the United States contrary to law * * * ” (21 U.S.C.A. §§ 173, 174); and (II) for a conspiracy to violate Sections 173 and 174. “John Doe” pleaded guilty before trial. Hernandez and Fanfan were tried before a jury and convicted on both counts on September 25, 1958.
The insufficiency of the government’s proof to establish that Hernandez had possession or control of a narcotic drug or that he knew that it was imported was directly before us upon the appeal. A second important point of error was raised, namely, the trial court’s refusal to inspect for possible inconsistencies the Grand Jury minutes of testimony given by the government’s principal witness. Hernandez’ counsel, with conceded awareness of the government’s difficulty of obtaining affirmative proof as to the source of the narcotics because of the very nature of the illicit traffic therein, with persuasive reasoning advanced the theory that to overcome this proof problem Congress created the limited presumption of knowledge from the basic fact of possession and that it is not too great a burden to place on a possessor the burden of explanation because the possessor should know where he obtained the drug. As an additional reason for the limitation of the presumption to possessors, counsel pointed out a possible constitutional objection, were the presumption not so construed, because of the doctrine that there be some rational connection between the presumed fact and the basic fact (Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Morrison v. People of State of California, 1934, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; Constitutionality of Rebuttable Presumptions, 55 Col.L.Rev. 527, 530 (1955) ).
In brief and in argument on the possession presumption point, Hernandez’ counsel relied primarily on our then just announced decision in United States v. Santore et al., 290 F.2d 51. In that case, the conviction of Santore on Count Two was reversed because two members of the panel believed that there was insufficient proof that Santore “had a voice in deciding, or could control, what was to be done with the narcotics” and that he “functioned only as an intermediary between the agents, as purchasers, and Casella and his partners, as sellers.” This, the majority held, was inadequate to support the conviction “absent physical custody of the drugs” or that “he exercised that type of control over them and their disposition which we hold constitutes possession.” United States v. Landry, 7 Cir., 1958, 257 F.2d 425, was also cited.
The government in Santore applied for a rehearing in banc which by a divided court'was granted (March 9, 1960). Re-argument was heard on March 16, 1960, by the five then-active Judges (Judge Smith became a member of the Court on September 14, 1960, and considered the case on the record and briefs).
Pending determination of Santore and on August 24, 1960, we filed our opinion in Hernandez. Because of the error in not examining the Grand Jury minutes, the conviction was reversed (Per Curb *92am) and the case remanded for a new trial (United States v. Hernandez, 2 Cir., 1960, 282 F.2d 71). The possession presumption issue was not discussed because it was hopefully expected that by the time Hernandez was reached for retrial some decision would have been announced either by the in banc court in Santore or by some Supreme Court action on the certiorari petitions filed by other defendants in the Santore case.
On September 7, 1960, and prior to any decision in Santore by the in banc court, counsel for Hernandez filed a petition for rehearing and reconsideration of the decision in which he quite properly and accurately pointed out that any retrial might be “an exercise in great uncertainty” and that “without instructions from this Court as to how to apply the law to those facts at a retrial of the case, the trial court will be placed in a situation of having to guess, at appellant’s [Hernandez’] peril, what exactly the state of the law in this Circuit is as to establishing the requisite proof of entitling the prosecution to use the statutory presumption in 21 U.S.C. § 174” (Pet. for Rehearing). Because of the bearing that a decision in Santore would have on Hernandez, his counsel requested us not to return the case to the district court for retrial until Santore was decided. We acceded to that request.
On November 16, 1960, the in banc court filed four opinions. The effect of the presumption (21 U.S.C. § 174) was the primary issue in Count II of the indictment against Santore and Lo Piccolo charging a sale of heroin on December 11, 1957. They had been convicted upon the trial. Upon appeal, Santore’s conviction on Count II was reversed by a divided court (Judge Hand and Judge Waterman voting for reversal, Judge Byers1 voting for affirmance). In substance the majority held that, despite the fact that the purchaser gave the purchase price ($6,000) to Santore, he “functioned only as an intermediary” and that, although he “was, without question, an active member in the criminal conspiracy,!’ nevertheless that membership “was not such that, absent physical custody of the drugs, he exercised that type of control over them and their disposition which we hold constitutes possession” (290 F.2d 51). Lo Piccolo’s conviction on Count II was also reversed because the majority believed that his conviction would be sustained “only if we find that he had possession of the drugs” and because, in their opinion, there was no evidence of control or possession.
However, this result was changed by the decision of the in banc court which affirmed the original convictions of San-tore and Lo Piccolo on Count II. The facts relied upon in the opinion written by Chief Judge Lumbard showed that Lo Piccolo had “constructive possession” of heroin and that Santore actively assisted, aided and abetted in the heroin sale. The issue was clearly stated: “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 (Chief Judge Lumbard and Judges Smith and Moore) held “that such proof is not necessary.” In a separate opinion, Judge Smith wrote that “the possession of one should be attributed to the other and the presumption brought into play, both in the establishment of the necessary scien-ter on the conspiracy count and on the substantive counts.”
Judge Waterman’s disagreement, with which Judge Clark concurred, is succinctly summarized in his statement that “Thus under 21 U.S.C. § 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.” Judge Friendly found the evidence sufficient to justify affirmance of the Santore and Lo *93Piccolo convictions under Count II but differed with the affirming opinion on the subject of the effect of the presumption on one who might aid and abet (18 U.S.C. §2).
This, in essence, is the background against which the present majority opinion in Hernandez must be viewed. Despite the fact that the trial judge in San-tore was affirmed in his holding that the evidence was sufficient to support convictions of Santore and Lo Piccolo on Count II, the majority now would overturn the Santore decision by holding that “Possession, actual or constructive, must be shown with respect to each individual conspirator, facilitator, or aider and abettor. Possession by another defendant by itself is not sufficient.” They concede that three active members of this court “held the contrary view that possession by a codefendant was sufficient to sustain conviction of an aider and abettor, even though the latter did not have actual or constructive possession.” They say that the opinion of the three judges in Santore which sufficed to affirm the trial judge was “not a majority view” and “cannot be taken as the law governing the retrial of this case unless perchance the Supreme Court meanwhile has spoken and so held.” In an endeavor to insure that their views will prevail in the future, they reverse and remand “for a new trial where the jury should be charged in accordance with the above opinion.”
Presiding upon the retrial and faced with this dilemma, what is the hapless trial judge to do? If he rules or charges a jury in accordance with the opinions of Chief Judge Lumbard and Judge Smith in Santore, Judge Moore concurring, he may have every expectation of believing that he has correctly ruled, provided, however, the appeal is heard by a panel upon which are two of the three Judges who concur in this view. If by chance two of the three having contrary views are sitting, a reversal might be likely. But even here this result would not obtain were Chief Judge Lumbard not disqualified to participate. As in Santore, an in banc court by a three-to-three vote would affirm on the possession presumption point and no contrary instructions would issue. If this seeming impasse is not cured by legislation or Supreme Court resolution of the problem, every narcotics case in this Circuit in which the possession presumption point were involved, if submitted in banc would follow the pattern of Santore. By such means would trial judges be assured that they could with some degree of assurance and safety follow the principles believed by Judges Lumbard, Smith and Moore to be the law.
Probably in no other district in the country is the problem here presented more frequently encountered than in the Southern District of New York (see Appendix) . The vast volume of shipping in the Port of New York area is accountable for and facilitates the importation of narcotic drugs for distribution, sale and use in New York and inland cities. Despite the efforts of the Federal Narcotics Bureau the traffic flourishes. Recent prosecutions2 of giant “rings” disclose the nationwide scope of their activities. As is not unnatural in a business so illicit, sales and deliveries of heroin are not carried on over the counter in broad daylight. The devious maneuvers, first to negotiate the sale and then to effect delivery, are varied, imaginative and worthy of the best detective story authors. Anomalously enough, possession, kept undercover as long as possible, seems to be entrusted to minor characters. Starting with the seaman who for a small fee brings the “stuff” from the ship, the drug remains fairly well in hiding until ready for sale, cutting and retail. Very rarely does the negotiator of the sale have possession. Mysterious meetings and telephone calls between several dif*94ferent persons are usually necessary before there is a disclosure that the package may be found behind a radiator in an apartment house,3 in a hotel room,4 in the trunk of an automobile,5 or in the hollow of a tree.6
To effect delivery, runners frequently are used (generally for small fees). Such persons have little, if any, knowledge of the network which is guiding and controlling the traffic. However, one fact emerges as certain, namely, that a long chain of links, each of which aids and abets, facilitates, acts as an agent, participates or as the statutes say “conspires,” is tightly enough forged to support a flourishing business. In looking at such a picture realistically, the nomenclature of the role of each participant is pure semanticism. The words “constructive possession” or “control” or “type of control” have no subjective meaning. And if the actuafpossessor of the drug is to be the only person endowed by law with knowledge of importation and hence subject to conviction, enforcement will be limited to those seamen who laden with their cargo waddle down piers or delivery boys who haven’t the slightest idea where the “stuff” comes from.
For some years, Congress has focused its attention on the narcotics evil. Lenghy reports have been issued. The facts and conclusions therein (summarized incompletely in an appendix hereto) would justify the enactment of measures most effective to prevent heroin from reaching, or often from being in effect forced upon, unfortunate addicts or potential victims. Yet the presumption created by statute in 1866 (applied to opium and opium derivatives in 1909 and to all narcotic drugs in 1922) 7 remains in virtually the same language today. To be sure, Congress has enacted minimum sentences, largely to counteract a tendency by some judges, who regard all narcotics traffickers as persons afflicted with a disease, to impose trifling and ineffectual sentences. Little, if anything, however, has been done to enact a modern-day enforcement code, fair to prosecutor and accused alike which is realistic in the light of modern-day practices. The narcotics dealers are not unmindful of the advances made between 1866 and 1961, particularly in science and transportation, and their usefulness in their business. However, the statute with its meaningless and archaic presumption remains the same.
In 1941 this court in United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, certio-rari denied Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210 sub nom., rehearing denied 1942, 316 U.S. 707, 62 S.Ct. 941, 86 L.Ed. 1774, affirmed the conviction of Cohen, indicted for violating 21 U.S.C. § 174. Referring to the effect of the aiding and abetting statute upon defendants charged with such violation, the court said:
“ * * * under the second statute [18 U.S.C.A. § 550, now 18 U.S. C.A. § 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” 124 F.2d at page 165.
“We can see no lack of proof as against any of the defendants. They all seem to have been thoroughly implicated in committing or in aiding and abetting in the commission of the offenses charged” 124 F.2d at page 166.
During recent years this court has relied upon these principles as set forth in the Cohen case. In 1955 in the La Rocca case, supra, although payment was made to La Rocca, he did not have possession *95and only arranged delivery by having the purchaser obtain the heroin through information supplied by a third person. In 1958 Moia’s conviction was affirmed8 upon facts which showed neither possession, receipt of purchase price, nor delivery. Moia merely received the orders over the telephone. Delivery and payment were handled by a co-defendant. The court upheld a charge defining an aider and abettor as “one who assists in the commission of a crime.” In 1960 Cox9 argued that the government had not proved possession and, hence, no knowledge of unlawful importation, but we held that there was adequate evidence of his power to determine custody.
Other circuits have followed the Cohen case doctrine: United States v. Chiarelli, 7 Cir., 1951, 192 F.2d 528, certiorari denied 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683, rehearing denied 1952, 342 U.S. 950, 72 S.Ct. 551, 96 L.Ed. 706; Brown v. United States, 9 Cir., 1955, 222 F.2d 293; Alexander v. United States, 8 Cir., 1957, 241 F.2d 351, certiorari denied 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539, rehearing denied 1957, 355 U.S. 852, 78 S.Ct. 78, 2 L.Ed.2d 61; United States v. Maroy, 7 Cir., 1957, 248 F.2d 663, certi-orari denied 1958, 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414; United States v. Malfi, 3 Cir., 1959, 264 F.2d 147, certio-rari denied 1959, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; Cellino v. United States, 9 Cir., 1960, 276 F.2d 941.
In United States v. Landry, 7 Cir., 1958, 257 F.2d 425, the Seventh Circuit seemed more interested in discussing the difference between “possession” and “ownership.” The heroin was assumed to be owned by Landry but possessed by a third party. The court said that “ownership is not proof of possession any more than possession is proof of ownership” (at page 431) and chose not to apply the presumption to ownership. This is hardly a repudiation of the Cohen doctrine followed by them in Chiarelli and Maroy.
Turning briefly to the facts we find that Hernandez was approached by a narcotics agent who said he was interested in purchasing heroin. Hernandez quoted his price and agreed to obtain the quantity desired. He then proceeded to make arrangements for delivery through a third person, Lopez, whom he described as “one of his partners or his supplier.” Lopez, present with Hernandez, then left “to arrange for the delivery of a half-ounce of heroin to me [the agent] for $75.00” (the price agreed upon between Hernandez and the agent). Lopez upon his return checked with Hernandez as to his customer (the agent). The agent and Lopez left and walked a short distance until they met a fourth person, Fanfan, who upon being told by Lopez that the agent “was the guy who wanted to get the stuff,” produced the heroin and delivered it to the agent.
The pattern of this transaction is not unlike the routine found in the cited cases, namely, the sale negotiated and the price fixed by the seller (here Hernandez) and the delivery made by others in a manner, if not directly, at least by fair inference controlled by the seller.
Since this case must be remanded in any event because of the failure to inspect the Grand Jury minutes, my dissent is limited to that portion of the majority opinion which relates to the possession presumption point.
Appendix A
A. The Illicit Narcotics Traffic, Report of the Committee on the Judiciary, United States Senate, Summary of Preliminary Findings and Recommendations of the Subcommittee on Improvements in the Federal Criminal Code, 8Uth Congress 2d Session, Senate Report H40 (1956):
1. “The United States has more narcotic addicts, both in total numbers and populationwise, than any other country in the Western World.”
*96a) At least 60,000 addicts in the United States.
b) Federal Bureau of Narcotics has names of 30,000 addicts, new names being reported at rate of
1.000 per month. 13 percent are less than 21 years of age.
c) The United States probably has more addicts than all Western nations combined.
2. “The illicit drug traffic has trebled in the United States since World War II.”
a) Ratio has changed from 1 in 10.000 to 1 in 3,000.
b) 2,000 persons arrested each month on narcotics charges.
c) Traffic now costs over $500,-000,000 per year.
3. “Drug addiction is responsible for approximately 50 percent of all crimes committed in the largest metropolitan areas and 25 percent of all crimes in the nation.”
a) 90 percent of traffic concentrated in 43 of nation’s most populous cities.
b) Addicts are responsible for a large majority of burglaries, thefts, prostitution and other offenses.
4. “Drug addiction is contagious. Addicts spread the habit with cancerous rapidity to their families and associates.”
a) 90 percent of the addicts appearing before subcommittee began using drugs because of “friends” and “associates.”
b) Less than 20 percent of known addicts are now confined.
5. “The United States faces problem of thriving international traffic in narcotic drugs. Red China, Turkey, Lebanon and Mexico are the primary sources of heroin reaching the United States, and international controls are inadequate.”
a) Actual scientific and medical need for opium is 500 tons annually; total world production is 12,000 tons.
6. “Recent seizures of heroin and cocaine in record quantities point up the international smuggling operation with the United States as a target.”
7. “Subversion through drug addiction is an established aim of Communist China. Since World War II, Red China has pushed exportation of heroin to servicemen and civilians of the United States and other free nations of the world.”
a) “The United States is one of the principal targets of this vicious illicit traffic in drugs as the Peiping regime seeks (1) to obtain dollars to purchase strategic materials and to pay foreign operatives and (2) to demoralize susceptible individuals in our military services and in the general population.”
8. “Criminal laws and procedures are insufficient to insure the apprehension and punishment of narcotic offenders.”
a) Judicial interpretations of constitutional search and seizure safeguards, wiretapping restrictions, granting of low bail bonds and limitations on federal narcotic agents are partly responsible.
9. “Penalties for narcotic violations are neither commensurate with the seriousness of the crime nor sufficient to remove the profits.”
B. Narcotic Control Act of 1956, Report of the Committee on Ways and Means, House of Rep., House Report 2388, 84th Congress, 2d Session (1956):
1. “Enforcement officers have reported certain weaknesses in present laws and have called to the attention of your subcommittee certain court decisions which have tended to vitiate the effectiveness of existing Federal enforcement legislation.”
2. “In 1948 an upsurge in addiction and an outbreak of teen-age use of narcotic drugs occurred. By 1950, narcotic addiction approached grave proportions in certain metropolitan areas of the country. * * * Several factors appear to have been responsible for the proportions of the upsurge in the United States; namely, an increased influx of *97drugs from Italy, where internal controls had temporarily broken down, followed by a deluge of heroin from Red China which used the drug as a means to obtain foreign exchange and as a weapon to demoralize the people of free countries.”
3. “Perhaps the most important factor in reducing the incidence of addiction was the realization that, although narcotic abuses were generally on the increase, in those areas where the courts imposed severe prison penalties traffic and addiction were at a virtual minimum or nonexistent.”
4. “Inquiry into the enforcement program revealed serious obstacles which have been placed in the path of enforcement officers as the result of recent court decisions. These decisions have tended, under certain circumstances, to furnish the criminal with a cloak of immunity to the detriment of society as a whole.”
5. “In those areas of the country where we found leniency in sentencing the prevailing practice, drug addiction and narcotic traffic without exception are on the increase.”
Appendix B
The annual report of the United States Attorney for the Southern District of New York to the Attorney General of the United States for the period commencing June 1, 1959, and terminating May 31, 1960, shows under the heading of “Criminal Division Statistics” the following:
“The statistics for this period reveal the following:
Cases pending June 1, 1959...... 619
Cases commenced during period. .1,046
Cases closed during period......1,129
Cases pending May 31, 1960...... 536”
Of these cases, figures from the Clerk’s Office disclose that the following were narcotics cases:
Cases pending June 1, 1959...... Ill
Cases commenced during period.. 137
Cases closed during period...... 154
Cases pending May 31, 1960...... 94
. United States District Judge for the Eastern District of New York sitting by designation.
. United States v. Aviles, 2 Cir., 1960, 274 F.2d 179, certiorari denied sub nom. Genovese v. United States, 1960, 362 U.S. 974, 80 S.Ct. 1059, 4 L.Ed.2d 1010; United States v. Stromberg, 2 Cir., 1959, 268 F.2d 256, certiorari denied 1959, 361 U.S. 863, 80 S.Ct. 123, 4 L.Ed.2d 102; United States v. Santore et al., supra.
. United States v. La Rocca, 2 Cir., 1955, 224 F.2d S59.
. United States v. Santore et al., 1958, 290 F.2d 51.
. Ibid.
. Brown v. United States, 9 Cir., 1955, 222 F.2d 293.
. See 14 Stat. 179 (1866); 35 Stat. 614 (1909); 42 Stat. 596 (1922).
. United States v. Moia, 2 Cir., 1958, 251 F.2d 255, 258.
. United States v. Cox, 2 Cir., 1960, 277 F.2d 802.