Appellant was convicted on three separate counts of distribution of heroin in violation of 21 U.S.C.A. 841(a). Since we find that a Blue-type charge was given to the jury, we must reverse.

At trial, Agent Losoya, a San Antonio Police Officer (Agent) working as an undercover agent for the federal Drug Abuse Law Enforcement Agency testified that on August 29, 1972 he drove to the China Royal Cafe in San Antonio, Texas with an informer. When they parked in front of the cafe, Appellant approached the car and asked them if they were trying to 'score'. The Agent replied in the affirmative. A sale of two grams of heroin was arranged and Appellant returned shortly with the heroin which he transferred to the officer.

The Agent further testified that on the following day, he and the informer drove to the Carosel Lounge. The informer entered the lounge and returned accompanied by Appellant. The Agent informed Appellant that he was again interested in purchasing heroin. The Agent and Appellant went into the Carosel where they met Jose Torres. The Agent stated that he needed five grams of heroin. Torres said that he could provide only two. The three went into the restroom. Torres gave the Agent the heroin and instructed him to pay Appellant.1 The Agent and Appellant then left the Carosel. Appellant left the Agent for a short period of time and returned with the other three grams of heroin which he transferred to the Agent.

Appellant took the stand and admitted that the transactions occurred essentially as the Agent had testified. However, he alleged that on the morning of August 29, the informer who had later introduced him to the Agent approached Appellant and asked him if he would be willing to sell drugs for him. Appellant, who claims to have been a heroin addict at the time, agreed. The informer then gave Appellant 15 grams of heroin, instructed him to sell it at $40.00 per gram, and told him not to tell anyone that the heroin belonged to the informer. Appellant testified that he later gave his friend Torres two grams of heroin to sell for him.

Appellant asserted that prior to his encounter with the informer on the morning of August 29, he had no heroin and that all of the heroin sold to the Agent in the three transactions had been obtained from the informer.

The prosecution then produced the informer who testified that he had been casually acquainted with Appellant prior to introducing him to the Agent but emphatically denied having ever given him any heroin and denied having even seen him on the morning of the 29th or within a five to six day period prior to that date.

Appellant essentially admitted all of the elements of the crime charged resting his defense on our holding in United States v. Bueno, 5 Cir., 1971, 447 F.2d 903, that entrapment is established as a matter of law where a defendant is charged with possessing contraband or distributing it to a government agent if the contraband in question was supplied to the defendant by a government agent including a paid informer.2 We held in Bueno that when a defendant testifies that he obtained the contraband from an informer, the government must produce the informer to contradict the defendant's allegations in order to take the case to the jury. If the informer so testifies, then the jury must find beyond a reasonable doubt that the defendant did not obtain the contraband in question from the informer.

At the outset, we must determine whether Bueno is still viable in light of United States v. Russell, 1973, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366. We conclude that it is.

In Russell the Supreme Court held that the fact that a government agent who had infiltrated a drug manufacturing ring had provided the defendants with an essential ingredient for manufacturing methamphetamine did not constitute entrapment as a matter of law where the defendants were charged with unlawfully manufacturing, selling and delivering methamphetamine. Rather, the question of entrapment was for the jury under the Sherman3 -Sorrells4 test. The Court emphasized that the ingredient provided by the government was 'by itself a harmless substance', difficult but by no means impossible to obtain and the possession of which was legal. 411 U.S. at 431-432, 93 S. Ct. 1642-1643, 36 L.Ed.2d at 373.

While observing that the Court of Appeals for the Ninth Circuit had relied on Bueno5 in finding entrapment as a matter of law, the Supreme Court implicitly acknowledged that the facts in Russell did not fall within the Bueno rationale. 411 U.S. at 431, 93 S.Ct. at 1642, 36 L. Ed. 2d at 373. Unlike Russell where the government provided a legal, harmless, obtainable substance, the government informer in Bueno provided the defendant with heroin-- the contraband itself the possession or distribution of which constitutes the very substance of the crime. This clearly and meaningfully distinguishes Bueno from Russell.6

'The story takes on the element of the government buying heroin from itself, through an intermediary, the defendant, and then charging him with the crime. This greatly exceeds the bounds of reason stated by this court in Williamson v. United States, 311 F.2d 441 (5th Cir. 1962).

The facts of this case clearly fitwithin the framework of the law in this field. If Defendant is to be believed, the sales of heroin were made through the creative activity of the government. The Defendant would not have had the heroin to sell if it had not been purchased by the Informer. In fact, this particular heroin would qpparently not have been in the United States at all, if it had not been smuggled in by the Informer.'

447 F.2d at 905-906.

We recognize that in Russell the Supreme Court emphasized that entrapment is a limited defense as well as affirming the continuing vitality of the predisposition/inducement test of Sherman and Sorrells. But despite the fact that the defendant's predisposition to commit the crime is not a significant factor under Bueno, we do not feel that Bueno is inconsistent with Russell.7

We wish to emphasize that the question of whether the Bueno defense has been established is for the jury as long as the government has come forward with sufficient evidence contravening the defendant's allegations.

Since Appellant testified that he had obtained the heroin from the government informer and the informer flatly denied these allegations, this case was properly within the Bueno rationale. Its application depended on the jury resolution of which was true, the story of the appellant or the story of the informer.

The Court charged the jury on the presumption of innocence, the government's burden of proof beyond a reasonable doubt, and the fact that the jury is not bound by the Court's comments on the evidence. The Court also propounded an instruction on the standard Sherman-Sorrells entrapment defense.

Then in the process of instructing the jury on the proper resolution of conflicting testimony, the Court noted:

'It is just a question of who you believe. And the Defendant has charged me in effect, and the Government as well asked me to charge you in effect, that if you believe the story of the Defendant here, Oquendo, you should acquit him. If you don't believe him, and believe the story of Grundy, that he merely was a conduit through which the officer made the acquaintance, that this man was a known pusher and so forth. Whatever he said you will remember, I won't. Then there is no doubt that the man ought to be convicted.

The Court then attempted to instruct the jury on the Bueno defense.8

'But I am charging you for the purposes of this case, and I am telling you that you must take the law as it is a legal defense in this particular case. It sure would be dirty pool to have an informer hand a man some Heroin, tell him to sell it for me, and then go back and get it and so forth, and then turn him over to the Government. And I don't think anyone should be convicted on that sort of evidence.

But if on the other hand you feel that it is a contrived defense, and it doesn't meet the possibilities or probabilities of the situation, and you feel that Grundy and the officer were telling the truth, then you shouldn't have the slightest hesitation to fine the Defendant guilty.

I have given you that instruction of law, if you find it happened as Oquendo said, not guilty. If you find it as the officer said, guilty.'

After having retired to deliberate, the jury requested a written instruction on entrapment. The Court again charged the jury on the standard entrapment defense9 and then referred to the Bueno defense in the following terms:

'I told you members of the jury that in my opinion, and I think that it must rest in yours too, but you are the judge of the facts, the gist of the situation here is did Grundy plant this narcotics on this man and then go to the Government and say 'I know this man has it', and they bought back the same narcotics. If he did, you ought to acquit him.

If he didn't, and this is the story made up out of the whole thought by a clever defendant, consistent with the Government's other story, then he is not entitled to it, and you should just as quickly convict him.

It is as simple as that, members of the jury, it is a yes or no answer. Do you believe the defendant, who has everything at stake, or do you believe the informer, who has no charges pending.'

The District Court committed reversible error by repeatedly casting the jury's ultimate determination of whether to convict or acquit in terms of a mere credibility choice between the informer and appellant.

We sympathize with the District Court since we realize that, as we phrased it above, the jury's decision in this case would probably depend upon whether it chose to credit the testimony of appellant and discredit the conflicting testimony of the informer or vice versa. Nevertheless, as we have many times held in the use of the Blue charge, there is too great a risk to fundamental values to warrant using this simplistic method.

Over the past four years we have consistently reversed whenever the trial court has given a Blue10 charge to the jury. United States v. Williams, 5 Cir., 1973, 473 F.2d 507; United States v. White, 5 Cir., 1972, 459 F.2d 990; United States v. Wood, 5 Cir., 1972, 458 F.2d 1351; United States v. Lowry, 5 Cir., 1972, 456 F.2d 341; United States v. Womack, 5 Cir., 1972, 454 F.2d 1337; United States v. Dillon, 5 Cir., 1971, 446 F.2d 598; United States v. Dopf, 5 Cir., 1970, 434 F.2d 205; United States v. Garza, 5 Cir., 1970, 426 F.2d 949.

We summed it all up in United States v. Williams, supra:

'While we agree with the government that the charge given here, like the charge actually given in the Blue case, is perhaps not as egregious as those given in the previously cited cases, that point of agreement is not the determining factor in this appeal. In Womack this court held that because the Blue charge, standing alone, could be interpreted by a jury as a directed verdict of guilty and because of its consequent potential for prejudice, it was necessary to proscribe any further use of the charge. This decision was an implicit recognition of the futility of a semantic comparison between the Blue charge and subsequent Blue-type charges as a means of determining whether a particular charge was prejudicial error. The underlying rationale of the decision in Womack, as well as in Garza, Dopf, Dillon and Lowry, is that when a court's charge could reasonably be construed as-- or has the practical effect of-- directing a verdict of guilty, the charge exceeds the bounds of fair and impartial comment and is, therefore, error.'

473 F.2d at 511-512.

This is consistent with the policy to which we are deeply committed that in a criminal case:

'No fact, not even an undisputed fact, may be determined by the Judge. The plea of not guilty puts all in issue, even the most patent truths. In our federal system, the Trial Court may never instruct a verdict either in whole or in part.'

Roe v. United States, 5 Cir., 1961, 287 F.2d 435, 440. Thus in spite of Appellant's admission that he willingly distributed the heroin, the District Court infringed on the jury's exclusive domain as the finder of fact by instructing them that if they believed the informer and disbelieved the Appellant on the issue of entrapment they must convict.

The charge given in this case is substantially similar to and carries all of the potential for prejudice of the discredited Blue charge. Thus once again, we must reverse.11

I agree that the judgment must be reversed because a Blue charge was given, one which invited the jury to treat the matter of proof as a fair fight between the United States and Oquendo rather than as one weighted in his favor by the reasonable doubt rule. This is so even if Oquendo's only real defense, the Bueno doctrine, was disapproved by the Supreme Court in United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). His not guilty plea placed all in issue, and the Blue charge given may well have infected the entire spectrum of the jury's deliberations.

Regretfully, i cannot agree that Bueno remains good law. As the majority makes plain,1 Bueno focuses exclusively on an aspect of governmental activity-- furnishing the defendant narcotics to sell-- and applies even where the Sherman-Sorrells type of entrapmentwhich turns exclusively on defendant's predisposition to the crime-- does not exist.

In Russell, after pointing out that the Court of Appeals had expanded the traditional notion of entrapment which 'focuses on the predisposition of the defendant' to require dismissal by focusing upon governmental activity and the degree of it, after citing Bueno as well as some other circuit and district court cases, and after pointing out (on the same page) that in Sorrells the thrust of the entrapment defense as recognized by the Court was toward the predisposition of the defendant while the minority focused on activity of the government, the Court observes:

We are content to leave the matter where it was left by the Court in Sherman . . .. Several decisions of the United States district courts and courts of appeals have undoubtedly gone beyond this Court's opinion in Sorrells and Sherman in order to bar prosecutions because of what they thought to be for want of a better term 'overzealous law enforcement.' But the defense of entrapment enunciated in those opinions (context indicates Supreme Court's opinions in Sherman and Sorrells) was not intended to give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it did not approve . . .. It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. 411 U.S. at 434, 93 S.Ct. at 1644, 36 L. Ed. 2d, at 375.

It seems plain to me that in its Russell opinion the Court is saying that there have been two views about entrapment since its inception, a majority view which focused solely on the predisposition of the defendant and a minority view which focused either solely or in addition on the activity of the governmental agents, and that the Court deliberately rejects the second view2 and hews to the first. For whatever it may be worth, I am not here disagreeing with Bueno and its siblings at all. I simply think the Supreme Court does and has said so.