(concurring in part and dissenting in part).
As to the issue of “expert testimony,” I am in concurrence, but as to whether there was a “submissible case” I must respectfully dissent. I accept the facts set out by the majority as reflecting the *315relevant facts of this case, but I must dispute the inferences and the legal conclusions based thereon.
The crucial issue presented here is whether the appellant’s conduct, as a matter of law, could amount to aiding and abetting Agnes Brittain in the purchase of the heroin, since the record is barren of any proof that Atkins was, in fact, a purchaser of the heroin. Aiding and abetting is “a rule of criminal responsibility for acts which one assists another in performing.” Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949). “In order to aid and abet another to commit a crime it is necessary that [an appellant] ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ ” Id., 336 U.S. at 619, 69 S.Ct. at 769, adopting the language of J. Learned Hand in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). (Emphasis added.)
In view of the foregoing, it is pertinent to review the inferences drawn by the majority. There are essentially three: (1) Appellant expended time and effort in seeking out a buyer (Brit-tain) ; (2) she was interested enough in the transaction that she made a personal introduction and remained at the table thereafter, rather than simply giving one of the parties the name and phone number of the other; (3) appellant’s interest in the transaction was not fleeting, in that she continued to discuss it with McWorthy after the transaction was consummated.
Without questioning the validity of these inferences at this point, the crucial question remains what is the legal effect of the evidence and said inferences. While they demonstrate that appellant intentionally introduced a person who wished to assist someone else in selling heroin to a person who had apparently indicated to her that she was interested in purchasing heroin, can such intent to introduce be translated into an intent to aid and abet Brittain in the purchase of heroin? Does the fact that she made a personal introduction illustrate that the subsequent purchase was something which she wished to bring about? Can such an introduction, when there is no further participation, be taken as demonstrating that she sought by her actions to make the- purchase succeed? I believe that the ^nswer to all of these questions is no, and that the conduct portrayed herein could not, as a matter of law, constitute aiding and abetting in the purchase of heroin.
The facts disclose that after the introduction there were three additional meetings between the buyer and the seller or his agent before this sale was consummated, yet it is not contended that the appellant participated, assisted or aided in any way in these successive dealings. While the purchase was far from being certain or even likely at the time of the introduction, there is no evidence that Atkins attempted in any manner to see the purchase through or insure that it would succeed. Her- remaining at the table, in view of the subsequent negotiations necessary to consummate the purchase and her abstention therefrom, can hardly be taken as efforts to see the purchase succeed.
This point was also brought out in Robinson v. United States, 262 F.2d 645, 649 (9th Cir. 1959) when it conchided:
We cannot find in the evidence before us anything that indicates Robinson (the alleged aider and abettor) wished to bring about the sale Lowe made to Cammack. He may very well have, in view of his alleged previous sales, but there is no proof of his wishes as to this sale! There is not the slightest evidence that Robinson ever had possession of the narcotic, participated in its sale, or received any of the proceeds thereof. [Emphasis added.]
In that case, Robinson had directed Cammack to Lowe and twice given him Lowe’s telephone number. Robinson’s conviction was reversed. The majority distinguishes Robinson on the grounds that the defendant therein did not (1) *316spend time locating the seller, (2) personally meet with the buyer and seller, and (3) express an interest in the transaction after the consummation of the sale. These are the same grounds on which the majority distinguishes Morei v. United States, 127 F.2d 827 (6th Cir. 1942) and United States v. Moses, 220 F.2d 166 (3d Cir. 1955), as they stem from the three principal inferences which they conclude to be so incriminating. Thus, said inferences merit closer examination at this point to determine their true distinguishing value and the validity of their basis.
The majority spates that “she had to act in an affirmative manner to bring the buyer together with the seller’s agent for a meeting * * but so did Robinson, Dr. Platt and Moses, when they gave phone numbers or told the parties where they could meet. Certainly, these defendants did not meet the majority’s advisement that they “could have rested on the fact that [they were] not aware of anyone wanting to buy [or sell] heroin.” Instead, the defendants in the respective cases, which the majority endeavors to distinguish, also engaged in affirmative, purposive acts; i. e., arranging for a buyer and a seller, theretofore unknown to each other, to meet for an illicit transaction. The substantive effect of the various defendant’s actions is identical, and the fact that Atkins made a personal introduction is not a relevant difference. The crucial factor which makes Atkins situation indistinguishable from those in Morei, Robinson and Moses, and which vindicates them from culpability, is the fact that these persons did not share in the criminal intent of the buyers or sellers, as they made no attempt to follow up on the transactions to insure their success. While they had, in effect, brought the principals together, they had acted without interest in the consummation of the sales, and they had left the principal parties to their own intents.
On the basis of Atkins’ continued conversations with MeWorthy, the majority next infers “that the defendant expressed an interest in the transaction after the consummation of the sale.” First, it is significant to note that while MeWorthy testified that their conversations included the subject that “we had been burned,” she admitted in explaining this statement that she had expected to receive some money for her participation, but that Atkins had said nothing to her about expecting any money. Secondly, the majority does not contend — as clearly they cannot — that such testimony supports the necessary inference that appellant was in collaboration with Brit-tain. Although such conversations may show appellant’s continuing awareness that the transaction was in process and eventually consummated, I fail to see how these conversations demonstrate Atkins’ desire to assist in the scheme, efforts to bring it about, or actions on her part to make it succeed. This court has previously noted that “[m]ere association, is not sufficient to establish aiding and abetting * * * and it is also established that knowledge that a crime was to be committed and presence at the scene of the crime are generally not sufficient.” Baker v. United States, 395 F.2d 368 (8th Cir. 1968). “In fact, it has been held that the mere fact that one is present at the scene of a crime, even though he may be in sympathy with the person committing it, will not render him an aider and abettor.” Johnson v. United States, supra, 195 F. 2d at 675-676. Here, there is not even a contention that the appellant was present at any of the negotiating and consummating transactions after the introduction, much less that she assisted in them in any way or sought by her actions to insure the success of the transaction.
Moreover, it is not explained how appellant’s continued conversations and association with MeWorthy, an agent for the seller, could amount to aiding and abetting Brittain with the purchase. “Any relation to the buyer [here, seller] actually militates against conviction of the charged offense of criminal complici*317ty in selling [here, purchasing].” Moses, supra 220 F.2d at 168. Here the evidence shows, if anything, assistance to the seller, i. e., in procuring a buyer, for it is not contended that appellant negotiated with McWorthy for Brittain. The record is clear that after the introduction Brittain dealt directly with Mc-Worthy -or August. Brittain’s only assistance in the purchase came from Ale-shire whom she had to call in from Chicago to assist her in testing the heroin. Brittain apparently did not turn to appellant for such assistance, or if she did, appellant obviously refused. Furthermore, the court in Moses noted, “[although the appellant’s conduct was prefatory to the sale, it was not collaborative with the seller [here, buyer].” Id,., at 168. “[0]ne who has acted without interest in the [buying] cannot be convicted as a [buyer] even though his conduct may in fact have facilitated an illegal sale.” Id., at 169. Here there was similarly nothing to show that Atkins was associated with the enterprise of the purchaser or that she had any personal or financial interest in seeing that Brittain purchased the heroin.
Such was not the case in United States v. Tutino, 269 F.2d 488 (2d Cir. 1959) where the facts disclosed that “Riehman (the alleged aider and abettor) not only performed an introduction but went to some pains and expense for long distance calls to get the scheme rolling and to try to complete it by locating Tutino after his disappearance.” Id., at 490. [Emphasis added.] The court thereby found that case distinguishable from Moses and affirmed Richman’s conviction.
In addition, appellee has referred us only to Mays v. United States, 261 F.2d 662 (8th Cir. 1958) as supporting the contention that appellant’s participation constituted aiding and abetting, but I find that it, in fact, illustrates the opposite. In Mays, the evidence disclosed that:
* * * McNealey, the Government’s undercover agent, secured an introduction to the [appellant] Mays under favorable circumstances; that thereafter * * * he entered into a discussion with Mays about the purchase of heroin; and that Mays told him he could sell him 100 capsules for $1.75 each. McNealey showed an interest in such offer and arranged to meet Mays at the bar that evening. McNealey reported at the bar at the scheduled time and after waiting a while was approached by Vernita Overton, who told him that Mays had sent a message that the deal was off for the night but to meet Mays the next night at the Riviera Club * -x- On the next night * * * McNealey met Mays at the Riviera Club, and was told by Mays that he would receive a telephone call from Mays later that evening. After returning home McNealey received a telephone call from Mays at about 1:15 A.M. * * *, and was told to go to the Turf Grill to pick up his “stuff”. McNealey went to the Turf Grill and from there to Berry’s room at the Grand Central Hotel. Mc-Nealey told Berry that he had seen Mays at the Riviera Club. Berry told McNealey that he had 110 capsules of heroin for him, and that he was instructed to charge $1.75 a capsule. Thereupon, McNealey paid Berry $192.50, furnished by the Government, and took delivery of the capsules. Id., at 664, 665. [Emphasis added.]
Based on the foregoing, this court held that “[t]here is ample evidence to support an inference that Mays associated himself with the sale of heroin and that he sought to bring about the sale. Id., at 664. [Emphasis added.] I find the Mays case readily distinguishable from the case at bar, because the appellant therein did not merely introduce an interested buyer to a seller and stop at that. Instead, he declared that he could sell him the desired heroin; he negotiated the price of the sale; he made arrangements for the buyer to meet the seller and when they could not be completed on that night, he persisted in *318seeing the sale through by again making arrangements for contact on the next night; and he instructed the seller as to the price at which the heroin was to be sold. Such actions clearly support the necessary inference that he sought to bring about the sale, thereby providing the requisite criminal intent.
I agree with Mays, and like Tutino find it illustrative that something more than an introduction is necessary to constitute aiding and abetting. Here, unlike Tutino, there was no showing that the appellant “went to some pains and expense * * * to get the scheme rolling and to try to complete it * * Nor was there evidence, as in Mays, that she sought by her actions to make the purchase succeed.
On the basis of the foregoing, I find it clear that appellant’s conduct could not as a matter-of law constitute aiding and abetting in the purchase of heroin. Thus, the ease should not have been presented to the jury, and the motion for directed verdict of acquittal on this count should have been sustained.