(dissenting).
To put this case in its proper perspective, a brief review of testimony in the District Court is necessary.
Officer Heath, a member of the Metropolitan Police Department working as an undercover agent on the narcotics squad, met one John L¡ Turner [indicted as a co-defendant with appellant] at 3:15 A.M. on March 25, 1961. What took place between Officer Heath and Turner at that time we do not know.1 During the trial, the Government attempted to introduce testimony as to what took place at that meeting, but the court twice properly sustained defense counsel’s objections that, as appellant was not present when the purported conversation took place, such testimony was hearsay and therefore inadmissible.2 Heath then testified that he gave Turner six dollars and drove him to a restaurant; that, while he remained in the automobile, Turner entered the restaurant, emerging about five minutes later with the appellant Johnson and two other persons, and that, at appellant’s suggestion, he drove the quartet to the 2500 block of Twelfth Street, N. W. Turner then turned over some money to appellant, who got out of the car and disappeared for an unstated length of time. Upon his return, Johnson got in the car, handed Turner a quantity of capsules, and said that he was “keeping one for doing.” Heath then drove to Fourteenth and Fairmont Streets, N. W., where appellant and his two companions left the car. Turner, who had remained in the automobile, then gave Heath three of the capsules he had received from Johnson. Those capsules contained heroin.
This is all the evidence that we have before us. At the conclusion of the Government’s case, the defense rested.
There is no evidence that Officer Heath said anything to Johnson, yet we are asked to reverse Johnson’s conviction on the ground that an instruction on entrapment should have been given. The trial court considered the request of defense counsel for such an instruction, but denied it with the following observation:
“[T]he only thing that there is in this case at all is this statement by the Police officer that Turner went in this restaurant and that he had money from a Policeman to buy narcotics, but the defense objected to the conversation that the officer had with Turner and there is nothing that the defense has introduced which I could hinge an entrapment instruction on.”
I must agree with the trial court. There is no evidence of inducement of appellant 3 except the use of police money, and that, standing alone, is not enough to justify the instruction on entrapment which defense counsel sought. The majority view that the use of the policeman’s automobile, the acquiescence by the officer in the accused’s retention of some of the narcotics, and the channeling of an intermediary to the accused provide *132a basis for the requested instruction is without merit.
If this court is prepared to say tíiat providing an accused with a bus token is enough evidence that the criminal conduct is “the product of the creative activity of law enforcement officials” to warrant instruction on entrapment, then the use of the policeman’s automobile might be a reason for reversing this case. Certainly the use of an automobile facilitates the commission of a crime; but it is no more inducement to the accused to commit a crime than supplying him with any other common convenience, such as a telephone with which to call an accomplice. Certainly this is not the sort of activity which ensnares the innocent and law-abiding into the commission of crime.
That the police allowed the accused to retain some of the narcotics seems to me totally irrelevant to the issue before us. If there were evidence that the police officer had told the accused that he might retain some of the narcotics as a “reward” for selling the illegal drugs, an entrapment instruction might have been proper, although we need not decide this. There is absolutely no such evidence before us.
Admittedly the direct channeling of an intermediary to the accused might provide a basis for the instruction, but there is no evidence of such direction, as there was, for example, in Hansford; 4 and without it, there is nothing to warrant the requested instruction. Certainly there is no evidence that the officer asked Turner to contact Johnson.
Although there exists a plethora of cases involving entrapment by government officials or government informants, there are few decisions involving entrapment of offenders by the police through the medium of unsuspecting private parties. Research has revealed only two cases involving the factual situation before us,5 both of which reached a result contrary to the one reached in this case; and both of which, in my opinion, are sound.
Our search under Sorrells 6 and Sherman 7 is not for the “proper standard for the enforcement of the federal criminal law in the federal courts,” but for something much more elusive. We must inquire whether “the criminal design originates with the officials of the Government” 8 or whether the criminal conduct is “the product of the creative activity of its own [law enforcement] officials.”9 *133I have always thought this so-called “genesis of intent” test adopted by the Supreme Court was based upon a sense of unfairness and injustice to the accused if he is convicted of an offense he would not have committed save for the importuning of a goverment official. I have also thought a basic requirement of that defense to be that the Government use some form of direct persuasion on the accused to urge him to commit the crime, else I do not see why it is unfair or unjust to convict him of the crime he admittedly has committed. In all the cases I have encountered in which entrapment has been urged successfully, there was evidence that the Government sought directly to persuade the accused to violate the law. That is why I consider sound the general proposition that “the doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law.” 10
Of course, there are cases in which, although the police did not deal directly with the accused, entrapment is successfully offered as a defense. But all cases reveal a common characteristic, namely, the police, or someone consciously working for them, urging the accused to commit the offense.
In the latter instance, there are, on the one hand, cases in which the police work through willing accomplices. In such a situation, the informant who induces the commission of a crime stands in the same position as the police.11 This is obviously sound, for he may have an interest in obtaining a conviction as does a police official; and to hold otherwise would offer the police too easy a path to circumvent the entire defense. In this category also, entrapment by private persons who occupy semi-official status in the scheme of law enforcement might offer the accused a defense.12 On the other hand, there are the cases in which the police work through an unsuspecting third party in oriler to induce a particular defendant to commit an offense.13 Here too we have the direct urging of a particular person by the police, albeit through the medium of an unsuspecting third party. Quite properly, the defense of entrapment is available in this situation.
In the case before us we have no evidence that the police in any way urged this appellant to commit the crime. The only evidence is that the police met his co-defendant and arranged for the purchase of narcotics. I cannot see how there was inducement of appellant on this evidence.
Furthermore, in the case before us, the predisposition of appellant seems to me completely irrelevant. Under the “genesis of intent” test of Sorrells and Sherman, the only pertinent consideration in the defense of entrapment would appear to be the predisposition of this appellant’s co-defendant to commit the crime. For example, let us assume that the police used such methods of inducement on Johnson’s co-defendant, Turner, that the latter would be entitled to acquittal as a matter of law, on the ground of entrapment. Surely, under present doctrine, we would have to conclude that the criminal conduct was “the product of the creative activity of law-enforcement officials,” and that “the criminal design [originated] with the officials of the Government.” In such a situation, Johnson, as well as Turner, would be entitled to acquittal as a matter of law.
Let us take another situation: If Turner had approached the police officer in this case and offered to sell him nar*134cotíes, Turner should not be entitled to instructions on entrapment if the police accept the offer. Also, if Turner then contacts Johnson and purchases the illegal drugs, I cannot see how Johnson would be entitled to entrapment instructions, even if he was reluctant to make the sale. Certainly the criminal design in this instance would have originated with Turner, and not with the police.
These hypothetical situations may only demonstrate the inadequacy of the present formulation of the doctrine of entrapment but, until the Supreme Court changes the nature of the defense, we must accept that formulation.
The majority quotes Learned Hand’s analysis of the defense of entrapment in Sherman v. United States with seeming approval; but the result in this case leads one to feel that, in fact, it has been rejected. Under Judge Hand’s approach, the defendant should have the burden of proof of making out a prima, facie case of inducement. Such a prima facie case has not been made out when the facts reveal only that government money has been used to make the purchase, unless we adopt a “but for” test — that is, that but for the actions of the police the particular crime would not have occurred. I believe, and I think the cases bear out this belief, that in order to make out a prima facie case there must be evidence that the police directly attempted to persuade the defendant, by appealing to his sympathy, by offering him a reward, or by any other means from which the jury might reasonably conclude that the police had overcome a resistance on the part of the defendant to commit the offense. Only then should the predisposition of the defendant become relevant.
The question before us is not from which source such evidence must come: the only question is whether such evidence exists. The use of a small amount of police money — and that is all the evidence before us — should not be enough evidence to warrant jury consideration of the question of appellant’s entrapment.
The majority seems to argue that they do but a small thing, since they are only giving the jury a chance to decide the issue. I submit that they do a very important thing, however, by changing the nature of the defense of entrapment and permitting juries to speculate on the issue of entrapment where there is insufficient evidence before them.
The factual situation before us presents a rather narrow question of law and calls for neither a disquisition on the law of entrapment nor an essay on the problems of enforcing narcotics laws. Yet some notice should be taken of the difficulties facing the police in their efforts to stamp out illegal drug traffic.
Drug traffic is of fairly widespread occurrence, engaged in by persons who frequently make a business out of crime. The commission of the offense is shrouded in secrecy. Above all, the initiative for enforcement cannot be left to private complaint, but must be undertaken by the local police officials. Such difficulties do not, of course, excuse police conduct tending to subvert the law-abiding impulses of an accused. Such difficulties do, on the other hand, explain why the police themselves must make some efforts to purchase illegal drugs and not wait until the crime has been committed before seeking to apprehend the criminal.
This court, in Hansford, took a step which I believe shackles the efforts of the police to curb the traffic in narcotics,14 and that step should most certainly be the limit of our incursion. The extension of existing principles of the doctrine of entrapment here undertáken will compound the difficulties of the police, for we now offer the defense of entrapment in a situation quite outside the ambit of Sorrells, Sherman, or any theory of that defense with which I am acquainted.
. Turner, although indicted, has never been apprehended.
. The Government tendered the following (at the bench) : “I didn’t go into the earlier conversation because Turner is a defendant. The early conversation was that Turner asked this officer to drive to this particular place to see a person by the name of — somebody, so they could get narcotics, and he asked the officer if he wanted some, and the officer told him he wanted four, and the officer gave him $6. And that statement was made at that time when Turner got out of the car; then Turner gets out of the car and goes into the place and returns with Johnson, and when he returned with Johnson and two other people, Johnson then directs this police officer to a certain locality in search of narcotics.”
. We need not consider in this ease whether the sum of money used to purchase the narcotics was so large that its use alone would justify an entrapment instruction.
. Hansford v. United States, 112 U.S.App. D.C. 359, 303 F.2d 219 (1962). There are at least two critical factors in the present case which distinguish it from Hansford: First, the evidence indicates that appellant here was approached and requested to sell the illegal drugs by his co-defendant, who was not an informant; and second, there is no evidence that the police attempted to induce this appellant to commit the crime through the medium of the unsuspecting Turner. These factors, in my opinion, not only distinguish this case from Hansford, but demonstrate that there was no inducement of appellant by the police, and should lead this court to a result different from that reached by the majority.
. United States v. Perkins, 190 F.2d 49 (7th Cir. 1951) ; Crisp v. United States, 262 F.2d 68 (4th Cir. 1958). Although only two circuits have considered the exact problem before us, other circuits have upheld refusals by a trial court to instruct on entrapment where there was more evidence of police inducement before them than we have here. See, e. g., United States v. Di Donna, 276 F.2d 956 (2d Cir. 1960), purchase of narcotics from defendant by policeman; Hester v. United States, 303 F.2d 47 (10th Cir. 1962), purchase of narcotics from defendant by a special employee of the police. See also United States v. Gironda, 267 F.2d 312 (2d Cir. 1959).
. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).
. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).
. Sorrells v. United States, supra note 5, at 442, 53 S.Ct. at 212.
. Id. at 451, 53 S.Ct. at 216. This is a question for the jury, of course, unless the facts establish entrapment as a matter of law or unless the evidence does not warrant submission to the jury.
. Henderson v. United States, 237 F.2d 169, at 175 (5th Cir. 1956).
. Sherman v. United States, supra note 6, at 373-375, 78 S.Ct. at 821.
. See, e. g., Ex parte Moore, 70 Cal.App. 483, 233 P. 805 (Dist.Ct.App.1924), 233 Pac. 805; People v. Lewis, 285 Ill.App. 171, 1 N.E.2d 696, aff’d, 365 Ill. 156, 6 N.E.2d 175 (1936).
. United States v. Klosterman, 248 F.2d 191, 69 A.L.R.2d 1390 (3d Cir. 1957) ; United States ex rel. Hassel v. Mathues, 22 F.2d 979 (E.D.Pa.1927).
. I dissented along with Judge Miller in Hansford, and think it should be ovorruled; but, unless or until it is overruled, I am, of course, bound by it.