(dissenting):
As the majority opinion observes, Lennon’s claim that he is the victim of selective prosecution is an issue not before this court but rather is sub judice in the Southern District, and therefore we cannot appropriately discuss its merits. The sole issue before us is whether Lennon is an excludable alien under INA § 212(a)(23).
That statute would exclude any alien who has been convicted of a violation of any law or regulation relating to the illicit possession of narcotic drugs or marihuana. Since the statute applies to any alien it makes no difference whether he be John Lennon, John Doe or Johann Sebastian Bach. Great Britain has made the possession of cannabis resin (marihuana) without authorization illicit (§ 3, Dangerous Drugs (No. 2) Regulations, under the Dangerous Drugs Act 1965). It is further conceded that Lennon pleaded guilty to the possession of that drug on November 28, 1968 and was fined £ 150. From these premises one would logically conclude that Lennon should be excluded from the United States.
*196The majority argues however that § 212(a)(23) should not be interpreted to exclude from this country those who are innocently in possession of an illicit drug. I agree but I cannot agree that Lennon was convicted under a statute which imposes “absolute liability” and makes the knowledge of the defendant “irrelevant.” The five opinions in Warner v. Metropolitan Police Commissioner, [1969] 2 A.C. 256, [1968] 2 All E.R. 356, which interpret the British statute, are hardly as clear as a mountain lake in springtime but there is a consensus on basic principles.
Lennon claims here that the drugs were concealed in a binocular case in a closet of his apartment and that he had absolutely no idea of their presence. There is the further suggestion that they may have been “planted” by the arresting constable who it is alleged was at the very least overzealous in prosecuting rock musicians. Assuming that Lennon’s version of the facts is accurate, it is my view that he could not have been properly convicted in Great Britain of the offense charged.1
In Warner Lord Pearce clearly held the view that the Parliament did not intend to impose absolute liability in the Drugs Act of 1965. “It is conceded by the Crown that these words [have in possession] do not include goods slipped into a man’s pocket without his knowledge” ([1968] 2 All E.R. at 386). He also quoted with approval the dictum of Lord Parker in Lockyer v. Gibb [1967], 2 Q.B., 243, 248 [1966], 2 All E.R. 653, 655:
In my judgment, it is quite clear that a person cannot be said to be in possession of some article which he or she does not realize is, or may be, in her handbag, in her room, or in some other place over which she has control. That I should have thought is elementary; if something were slipped into one’s basket and one had not the vaguest notion it was there at all, one could not possibly be said to be in possession of it.
(Emphasis added).
The very same paragraph of Lord Parker’s opinion in Lockyer v. Gibb was cited with approval by all of the other law Lords who sat in Warner (Lords Guest ([1968] 2 All E.R. at 383), Morris (id. at 372 — 73), Wilberforce (id. at 393), and Reid (id. at 387)).
That this position of Lord Parker in' Lockyer v. Gibb represented the view of all five Lords who wrote in Warner is fortified by the comments of A. L. Good-hart, Editor of the Law Quarterly Review in his article “Possession of Drugs and Absolute Liability,” 84 L.Q.Rev. 382, 391 — 92 (1968). After citing the Parker dictum in Lockyer to which we have referred, he noted:
This statement is of outstanding importance because it was accepted as a self-evident statement of the law by all the judges, both in the Court of Appeal and in the House of Lords, in the present case [Warner]. It was the foundation-stone on which their judgments were based.
It must be further observed that this was the interpretation given to Warner in later English opinions.2 This unani*197mous position in Warner is emphasized here because Lennon’s case precisely fits the example posed by Lord Parker in Loekyer and unanimously approved in Warner. Lennon’s position has been either that the cannabis resin was planted by the police or that in any event he was totally ignorant of its presence in the binocular case. His counsel must also have so read Warner since as the opinion below reveals his solicitors told him after his arrest that he stood a good chance of acquittal at trial.
In light of this discussion I cannot accept the majority view that Lennon was convicted under a law which imposed absolute liability and eliminated mens rea. If ignorant of the drug’s presence he would not have had possession under English law and could not have been properly convicted.
The undisputed fact however is that Lennon did plead guilty to the possession of cannabis resin, and while this may have been convenient or expedient because of his wife’s pregnancy and his disinclination to have her testify in court, it is elementary that we cannot go behind the plea. Rassano v. INS, 377 F.2d 971, 974 (7th Cir. 1967); Giammario v. Hurney, 311 F.2d 285, 287 (3d Cir. 1962); Pino v. Nicolls, 215 F.2d 237, 245 (1st Cir. 1954), rev’d on other grounds sub nom. Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955). Since Lennon was convicted under a statute which did not impose liability absolutely but required knowledge on the part of the defendant where the contraband is secreted in a container, I cannot concur in the result reached by the majority.
The majority here further concludes that a foreign conviction for the possession of marijuana under the British statute or any similar foreign law does not render the convicted alien excludable. They argue that the Congress was more concerned with trafficking in drugs than in possession and their opinion does not cover the trafficker who obviously is fully aware of the nature of the business he is pursuing. The statute (INA § 212(a)(23)) however bars the possessor as well as the trafficker. If there were no users there would be no trafficking.
Great Britain bars the unauthorized possession not only of cannabis resin but raw opium, coca leaves (from which cocaine is extracted) and other substances as well. Congress has also barred from this country those aliens who have been convicted of the possession not only of marihuana but other illicit drugs. Although the majority limits its holding to a marihuana conviction under the British statute or any foreign counterpart, its reasoning would compel the same result if the drug at issue were heroin or cocaine. It must also be emphasized that the vast majority of those who are ar*198rested with illicit drugs in their homes or on their persons are users who are fully aware of their presence and their properties. It is the unusual case where contraband such as this is surreptitiously planted in one’s reticule or blue jeans pocket. Yet by disregarding convictions under the British statute or any other foreign counterpart, the majority would admit to the United States those who knowingly possessed any illicit drugs. This holding seems to me to conflict with INA § 212(a)(23) which plainly bars those who have been convicted of a violation of “any law: or regulation relating to the illicit possession of . narcotic drugs or marihuana”. Lennon’s guilty plea here puts him within the statute.
The holding here will undoubtedly and unfortunately result in the abandonment of Lennon’s claim of selective prosecution now pending in the Southern District Court. If others found guilty of the same crime have been permitted entry and Lennon has been barred because he is John Lennon, the jongleur, and not John Doe, then that contention should be litigated not only in the interests of Lennon and INS but the public as well.
. With respect to the arrest, we have no record before us except the memorandum of the conviction which reveals only the conviction and makes no reference to the amount of cannabis resin discovered or the exact place where it was found. The brief submitted by the American Civil Liberties Union on Lennon’s behalf before the Bureau of Immigration Appeals states that the drug was found in three different containers in a closet in Lennon’s apartment. Although the majority chides me for discussing the facts, I am accepting them as urged in Lennon’s brief before this court.- There is no admission by Lennon and no contention by the Government that Lennon knew that the illicit drug was physically present in the closet but that he had no idea that it was cannabis resin. Hence Lord Pearce’s aspirin-heroin example relied upon by the majority is not relevant. Moreover, it must be understood in the context of his further comment: “On the other hand, I do not think that Parliament intended to make a man guilty of possessing something when he did not know that he had the thing at all.” [1968] 2 All E.R. at 388.
. In Sweet v. Parsley, [1969] 1 All E.R. 347 (H.L.) four of the five lords who had earlier written in Warner (all but Lord Guest) were *197asked to construe another provision, of the 1965 Dangerous Drugs Act, which made it an offense for an occupier or manager of premises to permit them to be used for the smoking of cannabis or for dealing in the drug. In construing that provision the lords discussed again their opinion in Warner. Three expressed the view that the possession dealt with in Warner meant knowing possession (Pearce, id. at 358; Wilberforce, id. at 360; and Diplock, id. at 361). Lord Morris, as he did in Warner, again cited Brend v. Wood, [1946] 175 L.T. 306, 307: “[A] court should always bear in mind that, unless a statute, either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.” ([1969] 1 All E.R. at 353). See also Lord Reid, id. at 350, 351.
In Regina v. Marriott, [1971] 1 All E.R. 595 (C.A.), the defendant’s house was raided by the police who found a penknife with traces of cannabis resin adhering to a broken blade. His conviction was quashed on appeal. In construing Warner the court noted, “[i]t does not seem to us to be the law that proof of the mere possession of the penknife, without more, was enough.” Id. at 597.
In Regina v. Fernandez, [1970] Crim.L.Rev. 277, the Court of Appeal observed: “The majority view in Wame^ was that one could not safely regard the offence as absolute: some mental element, or subjective test, might have to be applied.” Id. at 278.
Finally, we note that in the Parliamentary debates over the revision of the Misuse of Drugs Act in 1971, although a Member of Parliament indicated that he believed that Warner created absolute liability, regardless of mens rea, the Solicitor-General’s response indicated that the revision was a codification of Warner rather than a rejection of it. 808 Parl.Deb., H.C. (5th ser.) 621 (1970).