(dissenting):
The course followed by the Government in this case makes a mockery of the Fifth Amendment’s guarantee that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” What compromises this indictment is not that the grand jury heard only hearsay testimony as in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406 (1956), but that, in sharp contrast to that case, it had no way of knowing that the testimony which was all it was hearing was hearsay. Despite the lame apology offered at trial by Agent Ward, his statements to the grand jury, recorded in the transcript annexed ,to this opinion, were the words of a man who had seen or heard whereof he spoke and were plainly meant to be taken as such; the Government does not contend anything *1000was said to the grand jury before Ward was sworn that would have apprised it of his limited knowledge. Even if Ward had been looking at reports while in the grand jury room, as my brothers choose to speculate, the jurors would have thought he was refreshing his recollection of events to which he was testifying as within his own knowledge rather than reading what Cockerille had reported to him. It is plain that had any such deception occurred at trial, whether through or without design, it would not be countenanced. See Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Curran v. State of Delaware, 259 F.2d 707 (3 Cir. 1958), cert. denied, 358 U.S. 948, 79 S.Ct. 355, 3 L.Ed.2d 353 (1959); Kyle v. United States, 297 F.2d 507 (2 Cir. 1961).
If, in these narcotics peddling cases, the Government insists on pressing Costello to the point of offering a grand jury only hearsay testimony by a surveilling agent when there is no apparent reason save a transparently unworthy one1 for not producing the agent with firsthand knowledge, it must make clear to the jurors the shoddy merchandise they are getting so they can seek something better if they wish; thus pressing the prosecutor for more reliable evidence — particularly important in these narcotics prosecutions where there is often a problem of the reliability of an agent’s identification— is the grand jury’s historic function. In the Costello case there was excellent reason for limiting the presentation to the three agents who summarized financial evidence, proof of which required 141 other witnesses and 368 exhibits at the trial, and the agents’ lack of direct knowledge must have been apparent. The statement in Mr. Justice Black’s opinion, “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits”, 350 U.S. at 363, 76 S.Ct. at 409, could never have been meant to validate anything like what happened here; on the contrary I am convinced that if Costello had presented facts like these, the Court would have dismissed the indictment on the ground, stated by Mr. Justice Burton, that “[t]o hold a person to answer to such an empty indictment for a capital or otherwise infamous federal crime robs the Fifth Amendment of much of its protective value to the private citizen.” 350 U.S. at 364, 76 S.Ct. at 409 (concurring opinion). Fully recognizing the undesirability of a practice whereby “before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury,” 350 U.S. at 363, 76 S.Ct. at 409, I nevertheless think a proper respect for the constitutional requirement of indictment and the “high place” held by the grand jury “as an instrument of justice,” 350 U.S. at 362, 76 S.Ct. 406, forbids our sanctioning what happened in this case. When it becomes clear in the course of trial that the evidence on which the grand jury indicted was entirely hearsay, the Government must at least satisfy the court that the grand jurors knew this was. all they were hearing. The Government did not do that here; Ward’s trial testimony that he had told the grand jury he was answering “upon reports that had been furnished” him cannot overcome the record that he said nothing of the kind.
I would reverse and direct dismissal of the indictment.
*1001APPENDIX
John J. Ward, called as a witness, having been duly sworn by the Deputy Foreman, testified as follows:
By Mr. Gold:
Q. Will you state your name, please. A. John J. Ward.
Q. And your occupation? A. I’m a Narcotic agent with the Federal Bureau of Narcotics.
Q. Now, are you familiar with the investigation surrounding the defendant, James Edward Payton [spells] ? A. Yes sir, I am.
Q. Now, I direct your attention to October 3rd, 1963, and on that day did an agent of the Bureau of Narcotics meet with the defendant ? A. Yes sir, he did.
Q. Who was that agent? A. Agent James Coekerille.
Q. And where did this meeting take place? A. It took place at the La Salle Bar, 90th Street and Amsterdam Avenue.
Q. And was the agent introduced to the defendant by an informant ? A. Yes sir.
Q. What was the conversation? A. The conversation was that Agent Cocker-ille told the defendant, Payton, that he was interested in purchasing one ounce of cocaine. The defendant, Payton, said he would sell it to him for approximately six hundred dollars. At this particular time Agent Coekerille then counted out six hundred dollars, official Government funds. The defendant, Payton, took the money, told him to wait there and that he would return with the cocaine. He then left the bar and proceeded back at approximately 10:00 P.M. of the same evening. When he returned to the bar, he handed Agent Coekerille a tinfoil package which contained cocaine.
Q. Was this package analyzed by the United States Chemist? A. Yes sir, it was.
Q. And he found it to contain cocaine hydrochloride? A. Yes sir.
Q. Was the total weight nineteen grams one hundred milligrams ? A. Yes sir, it was.
Q. Now, during this transaction was there any order form used by anyone? A. No sir.
Q. Was there any conversation about any order blank? A. No sir.
Q. And in a sale of a narcotic drug is an order form supplied by the Secretary of the Treasury or his delegate required? A. Yes sir.
Q. Directing your attention to October 10, 1963, did the undercover agent again meet with the defendant on that date? A. Yes sir.
Q. Where did the meeting take place ? A. The La Salle Bar at 90th Street and Amsterdam Avenue.
Q. Did they have a conversation ? A. Yes sir. Agent Coekerille told him again he was interested in purchasing another ounce of cocaine. The defendant said he would sell it to him for the same price— approximately six hundred dollars.
Q. Exactly six hundred dollars? A. Yes sir. At that particular time Payton requested the six hundred dollars. Agent Coekerille counted out six hundred dollars, official funds, and gave it to Pay-ton. Payton told him to wait at the Blue Rose Bar at 85th Street and Amsterdam Avenue. He told him to wait there and he would return with the cocaine. Approximately 2:00 A.M. the next morning, on October 11, Payton returned to the Blue Rose Bar. At this particular time he handed Agent Coekerille a tinfoil package which contained cocaine.
Q. And this was analyzed and found to contain cocaine hydrochloride by the United States Chemist? A. Yes sir.
Q. And he found the total weight to be twenty grams, five hundred milligrams, is that correct? A. He certainly did.
Q. During this transaction was there any order form requested by anyone? A. No sir.
Q. Did any person use any order form in any manner during any of this transaction? A. No sir.
Q. Was there any conversation of any kind about any order form? A. No sir.
Q. I have nothing further.
. In United States v. Borelli, 336 F.2d 376, 391-392 (2 Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), another prosecution in the Southern District of New York, we noted that the Government had withheld its principal witness, an accomplice, from the grand jury and had presented his evidence through a narcotics agent who had interviewed him. However, apart from a possible distinction between an accomplice and a government agent, the grand jury in that case knew precisely what it was hearing.