(dissenting):
I respectfully dissent. The majority holds that an error of constitutional dimension was, under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless beyond a reasonable doubt. It does this while, at the same time, forthrightly observing that the prosecution’s appeal for conviction, in summation, was predicated, almost wholly, upon the proposition that the jury should apply the unconstitutional presumption. Feldstein never had actual possession of the marihuana, and I cannot believe that he was not prejudicially affected by the erroneous instruction and the prosecution’s argument thereof. We learned, in Wilson v. Anderson, 379 F.2d 330 (9th Cir. 1967), rev’d sub nom. Anderson v. Nelson, 390 U.S. 523, 88 S. Ct. 1133, 20 L.Ed.2d 81 (1968), that it is a rare case indeed when error of constitutional magnitude can be held, beyond reasonable doubt, not to have prejudicially affected the rights of an accused.
Moreover, my examination of the instructions given to the jury in this case leads me to believe that the majority’s conclusion cannot be reconciled with our court’s recent opinion in United States v. Christion, 426 F.2d 787 (9th Cir. May 14, 1970). See also United States v. Mahoney, 427 F.2d 658 (9th Cir. May 12,1970).
I would reverse.