(dissenting).
In this case the jury was called upon to choose between two widely varying accounts of police entry into the premises where appellant lived and seizure of narcotics found in appellant’s suit coat. According to the Government’s version, appellant met the police officers at the door, admitted that there were narcotics in the house, and led them to his room where paraphernalia commonly used in administering narcotics were found. The police testified that appellant then led them to another room occupied by one Portia Owens, a narcotics addict. In this room the officers found appellant’s suit coat containing a package of heroin powder in one of the pockets. The coat was lying on the bed which at the time was occupied by Miss Owens.
There is no question that the Government’s evidence, if credited, was sufficient to sustain a jury finding that appellant had possession of the heroin, but appellant gave a quite different version of the events in issue. He testified that the suit coat was found by the police without his directing them to it and that he had no knowledge of the narcotics which were found in the coat pocket. Obviously if his testimony were to be credited a conviction could not have resulted. Because I feel that this was not made sufficiently clear to the jury by the court’s instructions, I would remand this case for a new trial.
The problem involves the meaning of “possession” in 21 U.S.C. § 174 and 26 U.S.C. § 4704. Both sections prohibit certain transactions involving narcotics and both provide that a finding of possession of the contraband drugs raises a presumption that the possessor committed the prohibited acts.1 This presump*802tion of guilt, since it contravenes the usual presumption of innocence, must be strictly confined to the limits prescribed in the statutes 2 Hence, aside from the question whether the evidence would sustain a finding of possession, if in fact the jury were to find no possession no statutory presumption could be invoked and conviction would have to rest on direct evidence of the prohibited acts. It is evident, therefore, that the term “possession” must be correctly defined in the court’s instructions so that the jury will be properly informed as to when the statutory presumption can be used.
Here the jury was instructed as follows:
“ * * * [Y] ou are instructed as a matter of law that 'possession as used in the statute means not merely actual physical possession, where the drug is in the immediate possession or control of the Defendant, but also includes constructive possession as well. Constructive possession occurs when a person does not have within his hands or grasp the article in question but does have dominion and control over the article.”
At no point in the charge was the jury told that appellant must have known of the presence of the heroin in order to have possession.3 Possession was equated with “dominion and control.” Thus, the jury might well have thought that the dominion and control which appellant had over his coat was sufficient to give him dominion and control, and hence “possession,” over the narcotics found inside the coat. Possession, thus conceived, could have been found even if the jury believed appellant’s contention that he did not know the heroin was in his coat.
I think it is well settled that, whatever possession may mean in other contexts, under the narcotics laws it means dominion and control with knowledge.4 Where the evidence is not sufficient to show
*803knowledge on the part of the defendant, the charge should be dismissed.5 Here, although the evidence was sufficient to establish appellant’s knowledge, it was never made clear to the jury that his knowledge was required before the statutory presumption could be applied.
I do not read the majority opinion as disputing that knowledge is an essential element of the “possession” referred to in the narcotics laws.6 The decision appears to rest either on a belief that the trial judge’s instructions made this fact clear to the jury or on the ground that defense counsel’s objection did not sufficiently raise the point and, therefore, Rule 30, Fed.R.Crim.P., prevents appellant’s pressing the point on appeal. I need not consider whether the charge given could constitute plain error under Rule 52(b), Fed.R.Crim.P.,7 since in my opinion defense counsel’s objection was sufficient to preserve the point.
At the end of the charge, defense counsel requested an instruction telling the jury that they should consider the fact that another person, namely Portia Owens, could have placed the heroin in appellant’s coat pocket. The point was that the heroin could have gotten into appellant’s coat without his knowing it. In response to counsel’s request, the trial judge instructed the jury as follows:
“ * * * He [appellant] says he didn’t have possession. Obviously, if he didn’t have possession, he would not be called upon to explain it.
“He says he didn’t have possession. So if possession was in someone else, then he wouldn’t be required to explain a possession which he didn’t have, according to his the-ory."
This instruction, given in terms of “possession” which had previously been defined as mere dominion and control, would not rectify a possible jury misconception that the statutory presumption might apply even absent a finding of knowledge on the part of appellant.
I respectfully dissent.
. 21 U.S.C. § 174 prohibits, inter alia, the concealment of narcotics which have been illegally imported and which are known to have been illegally imported. It provides that whenever a defendant is shown to have had possession of a narcotic drug “such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the fury.”
26 U.S.O. § 4704 prohibits the purchase, sale, or distribution of narcotics except in the original stamped package. It provides that “the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a *802violation of this subsection by the person in whose possession the same may be found.”
The two sections are functionally equivalent, except that under 26 U.S.C. § 4704 the absence of taxpaid stamps, in addition to possession, is necessary to raise a presumption. See Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); United States v. Landry, 7 Cir., 257 F.2d 425 (1958).
. Jackson v. United States, 102 U.S.App. D. C. 109, 110, 250 F.2d 772, 773 (1957). And cf. United States v. Maghinang, D. Del., 111 F.Supp. 760, 761 (1953).
. The Government in this case did not urge the theory that Miss Owens was subject to appellant’s control as an agent or employee and that, therefore, any possession of hers would be with appellant’s knowledge and subject to his dominion and control. This theory of constructive possession has been upheld in numerous narcotic cases. E.g., United States v. Rosario, 2 Cir., 327 F.2d 561 (1964); United States v. Hernandez, 2 Cir., 290 F.2d 86 (1961).
. Arellanes v. United States, 9 Cir., 302 F. 2d 603, cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962); Guevara v. United States, 5 Cir., 242 F.2d 745 (1957); United States v. Tijerina, S.D.Tex., 138 F.Supp. 759 (1956).
The model instruction approved in Arellanes, 302 F.2d at 608-609, n. 8, is as follows:
“The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
“A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over a thing, is then in constructive possession of it.” Form 55, 20 F.R.D. 278 (1958). (Emphasis added.) See Johnson v. United States, 9 Cir., 270 F.2d 721, 724 (1959), cert. denied, 362 U.S. 937, 80 S.Ct. 759, 4 L.Ed.2d 751 (1960).
To leave the jury with the impression that the commission of a crime can be inferred from ignorant “dominion and control” over contraband articles may well run afoul of the constitutional requirement of a rational connection between the fact presumed and the fact proven. See United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965) ; Tot v. United States, 319 U. S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).
. Jackson v. United States, supra Note 2; United States v. Tijerina, supra Note 4; United States v. Maghinang, supra Note 2.
. Johnson v. United States, supra Note 4, is cited with apparent approval in footnote 7 of the court’s opinion. That case specifically approved the instruction set out at 20 F.R.D. 278, which is generally given in the Ninth Circuit. See Arellanes v. United States, supra Note 4; Green v. United States, 9 Cir., 282 F.2d 388, 391 (1960), cert. denied, 365 U.S. 804, 81 S.Ct. 469, 5 L.Ed.2d 460 (1961).
. But compare Barfield v. United States, 5 Cir., 229 F.2d 936 (1956).