Charged: in count one with the sale on November 11, 1957, to one Sutton of 74.4 grains of heroin; in count two with acquisition and concealment of the same drugs; in count three with the sale to Sutton on November 20, 1957, of 67.3 grains of heroin; and in count four with the acquisition and concealment of the said heroin on the same date; all in violation of Sec. 4705, Title 26 U.S.C. and Sec. 174, Title 21 U.S.C.A.; defendant was tried to the court without a jury and convicted on all four counts.

Appealing from the conviction, appellant is here assigning as error the denial of her motion for acquittal. In support she puts forward two grounds. The first, based upon Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848, is that the evidence proves entrapment as matter of law. The second, based upon Adams v. United States, 5 Cir., 220 F.2d 297, is that there was no evidence from which a sale from her to Sutton, or a possession by her except for and in behalf of Sutton, could be spelled out beyond a reasonable doubt.

This is the record. The government in making out its case proceeded as it did in Panci v. United States, 5, cir., 256 F.2d 308, without putting the informer on the stand or calling him to testify. As it did there, it disclosed that the informer, there Sansone, here Sutton, to whom it was charged appellant had made the sale, was a government special agent who had been furnished government money and instructed, if he could, to make a purchase from the defendant.

In making out this case, it relied, as it did in Panci's case, on the testimony of the narcotics agents as to their observations of meetings of the informer with the defendant.

When, therefore, the government rested, it found itself either in the position of the government in Panci's case, of having failed to prove by sufficient evidence that the defendant had, as charged, acquired, concealed and sold the drugs in question, and a judgment of acquittal should have been entered on that ground; or, on the other hand, if its proof was sufficient to show this, since it showed no more, it found itself in the position of the government in United States v. Masciale, 2 Cir., 236 F.2d 601 and, United States v. Sherman, 2 Cir., 200 F.2d 880, of having, as was said in United States v. Sherman, 2 Cir., 240 F.2d 949, at page 951, 'shown without more that the defendant was induced by government agents to engage in the proscribed activity and no conviction may be had.'; and the verdict of acquittal should have been directed on that ground.

The defendant, however, did not then move for judgment but took the stand in her own behalf, not to deny that Sutton had delivered her the money and had obtained the narcotics he sought, but to testify that what she did and all that she did was under the direction of, and as agent and friend of, Sutton, and to help him obtain the capsules, for the obtaining of which he had solicited, indeed implored, her aid.

In the course of this testimony, she stated positively and never varied from it that Sutton, an addict, and convict, and his wife, also an addict, were both known to her, that in fact Sutton was almost a relative, and that she had done what she did under his direction to get the drugs for him and his wife.1

At the conclusion of her testimony, the defendant rested, and though the informer was available to the government, he was not put on the stand, nor was any evidence offered in rebuttal of defendant's clear and positive statements as to what she had done and why she had done it. Defendant then moving for acquittal, her motion was denied, and she was convicted on all counts and sentenced on each to serve ten years, the sentences to run concurrently.

As the Supreme Court did in the Sherman case, 'we conclude from the evidence that entrapment was established as matter of law'. As it was in that case, 'it is patently clear' on the evidence that the victim of the informer's activities 'was induced by' him. The fact that, in this case, the defendant took the stand and by her own testimony disclosed the circumstances of the entrapping and the informer was not called by the government to dispute or deny the defendant's testimony, does not, we think, make this a different case. Here, outside of an agent's unresponsive and inadmissible conclusion in answer to a question on cross-examination,2 the only evidence that she was or had been connected with narcotics violations was, as in Sherman's case, that she had been convicted in 1952, five or more years ago, and had served a term therefor. As in that case, no narcotics were found on the defendant or in her premises, and there is positive and uncontradicted evidence that she made no profit on the transaction and that she did not use any of the drugs for herself, indeed that she was not a user or seller.

We are also of the opinion on the record as it now stands, that, for the reasons stated in United States v. Sawyer, 3 Cir., 210 F.2d 169 and Adams v. United States, 5 Cir., 220 F.2d 297, the defendant acted, not for herself but as the subagent of, and conduit for, the government's provocator, and, because, acting for the government, he was not guilty of any offense, neither was she.

The judgment is, therefore reversed and the cause is remanded for another trial, on which, if the truth is otherwise than as on this record it appears, it may be made manifest.

Reversed and Remanded for Trial Anew.

CAMERON, Circuit Judge (dissenting).

Borrowing a phrase from the first sentence of appellee's argument, we repeat what we believe is a universally accepted fact, that the traffic in narcotics is 'dirty business'. The terrible toll being taken of the lives and well-being of the citizens of this country, particularly of its youth, was well expressed in a recent message by the Governor of New York to the Legislature of that State:1

'Among the many consequences of the tension and unrest of the post-war world none is more intrinsically terrible than the steady rise of drug addiction among the youth of our nation. * * * And yet in spite of these efforts the drug traffic has continued to spread, the number of addicts had continued to grow. Narcotic arrests in New York City alone have risen six hundred percent in the past decade; arrests of persons under twenty-one have increased 2,300 percent * * *.'

State legislatures have responded to the tragic situation, as has Congress, by tightening the laws against those who engage in this nefarious business. But the courts are, in many instances, going in the other direction as, in my opinion, the majority here, and the courts in the cited cases, have been and are going.2 That attitude it has seemed to me, is born in many instances of a condemnation of the nethods employed by the government in apprehending those engaged in handling narcotics and presenting their cases to the courts. My own disposition is rather to applaud the courage demonstrated by government agents who are willing to risk their lives by getting down into the mire where alone participants in the narcotic business can be found.

The defense here is solely that appellant was entrapped. The Judge heard all of the testimony and saw the witnesses who gave it and, in my opinion, there was ample evidence to support his finding against the defense of entrapment. We who do not occupy his vantage point are here repudiating his findings, intimating that we will not accept such a finding if the government does not place the informer upon the stand.

I am unable to give my assent to such a view. I think the cases show that it is almost impossible to convict narcotic dealers without the help of informers who, in most instances, are the unfortunate victims of the dirty business with which we are dealing. Anyone willing to recognize realities can see a number of reasons why the government should not be forced to place the informer upon the stand if it can make its case without doing so. In my opinion, the evidence before the court below was sufficient without the use of the informer, and the court below was justified in holding that the defense of entrapment had not been established.

So believing, I am constrained to set down thus briefly the grounds of my dissent. It is not possible to read this record without feeling a strong sympathy for appellant. A share of that sympathy should, in my opinion, be reserved for the hapless victims referred to by the Governor of New York.