(dissenting).
There was no legal question, important or otherwise, justifying a hearing en banc in this case. This conclusion is apparent from the result reached by the majority which is solely an interpretation of the facts which differs from that of the trial court. This is scarcely an appellate function.
The majority would recast the factual mold to have the record establish that *34a man named Brown met a friend named Jones and merely in' response to the statement that he (Brown) wished to purchase heroin said that there was a seller named Big Charlie and that he (Jones) would introduce him. As they interpret the facts “defendant did nothing except to introduce a willing buyer to a willing seller and to serve as a go-between, until such time as the willing seller was satisfied to do business with the willing buyer.” Were this all there were to the case, the trial judge would undoubtedly have acquitted. But in fairness to the judge and to resort to the oft-used legal cliche of “having seen and heard the witnesses,” the trial judge’s findings were quite different and, in my opinion, not open to re-interpretation or speculation by us. Examining the facts as found, I observe (not find) that Jones was far more interested in the transaction than telling Brown, “Go to Big Charlie, 111 West 115th Street.” To the contrary, he held Big Charlie out as his “connection”; he represented that he (Big Charlie) dealt in “good stuff”; when they went to the address it was Jones not Brown who went to Big Charlie’s apartment; not finding him there but meeting him on the street, it was Jones not Brown who approached Big Charlie and engaged him in conversation; and it was Jones who, after his talk with Big Charlie, stated the price ($150) and secured Big Charlie’s willingness to deliver. Jones stayed with Brown until delivery was completed. Thus, Jones’s acts bring him directly within the definition given by Judge Clark (Judge Waterman concurring) in United States v. Hernandez, 2 Cir., 1961, 290 F.2d 86, 90, of a person in constructive possession, i. e.:
“Moreover, a person who is sufficiently associated with the persons having physical custody so that he is able, without difficulty, to cause the drug to be produced for a customer can also be found by a jury to have dominion and control over the drug, and therefore possession.”
The fact that with all three present Big Charlie handed the package directly to Brown and Brown paid Big Charlie $150 would be normal real-life procedure. Certainly I would not infer that Jones would have said, “Being an innocent bystander and to avoid the appearance of being in constructive possession, Big Charlie, please deliver the package directly to Brown.” Nor is it unusual for the actual seller and possessor to attempt to by-pass the intermediary by saying, “In the future deal with me directly.” This remark in substance has been made in many of the cases in which we have found constructive possession.
Therefore, while I can actually (not constructively) praise the excellent exposition of the law written by Judge WATERMAN, I cannot distinguish this case from the many in which we have held that there was constructive possession. All the facts logically impel an inference contrary to that reached by the majority. Jones participated actively from the moment Brown indicated his desire to the time he had arranged that Brown’s desire was fulfilled. I have more than serious doubts that by this decision we “uphold and enforce laws as Congress enacted them,” despite the belief of the majority that they are so doing.