Biggs, Kalodner and Freedman, Circuit Judges. Kalodner, Circuit Judge (dissenting).
The defendant-appellant Pratt with one Wilson was indicted on a two-count joint indictment charging him and Wilson both as principals, respectively, with selling heroin not in the original stamped package and also selling heroin without the prescribed written order form in violation of Sections 4704(a) and 4705(a), Title 26, U.S.C., contrary to Section 7237 of Title 26, U.S.C. Wilson pleaded guilty but did not testify at Pratt's trial. Pratt testified and denied his guilt. The court charged the jury as to aiding and abetting the commission of a crime, Section 2, Title 18, U.S.C. Pratt was found guilty on both counts.
The question which we must determine is whether there is sufficient evidence in the record to support Pratt's conviction.*fn1 It is the law that on a motion for judgment of acquittal the view of the evidence most favorable to the Government must be taken. See United States v. Pennsylvania Refuse Removal Ass'n, 242 F. Supp. 794, 798 (E.D.Pa. 1965), aff'd., 357 F.2d 806 (3 Cir.), cert. den., 384 U.S. 961, 86 S. Ct. 1588, 16 L. Ed. 2d 674 (1966). Cf. United States v. Gordon, 410 F.2d 1121 (5 Cir. 1969).
As was said in Turner v. United States, 396 U.S. 398, 407, 90 S. Ct. 642, 647, 24 L. Ed. 2d 610 (1970), "The question on review is the sufficiency of the evidence. * * *" A scrutiny of the evidence shows the following. Agent Moore of the Federal Bureau of Narcotics made an engagement to meet a man named "Snooks" to buy heroin. Policeman Rouse of the Pittsburgh Police Force, collaborating with Moore followed Moore to his rendezvous with "Snooks" on the "North Side" of Pittsburgh. "Snooks" was in fact Pratt's codefendant Wilson. Wilson informed Moore that he would have to go to the Hill District of Pittsburgh to get heroin. The two men drove in Moore's car to the Hill District, followed by Policeman Rouse in another car. Moore parked in the "300 block of Roberts Street". At this time Wilson asked Moore as to how many bags of heroin he wanted. Moore said that he had $20, "enough for two $8.00 bags". Wilson said, "Give me the $20.00 and I will get three bags of heroin." Wilson took the $20 and walked down Roberts Street to Center Avenue and out of Moore's sight. Moore stated: "In the meantime, Officer Rouse drove up, parked across the street, got out of his car and also walked down Roberts Street on Center Avenue and [also] out of my sight."
Officer Rouse corroborated much of Moore's testimony. He testified that he followed Moore to the North Side of Pittsburgh where he saw Moore pick up Wilson and followed Moore and Wilson to the Hill District where he saw the latter leave the car and meet Pratt. He also stated that Pratt and Wilson talked together for about five minutes; that Pratt then crossed to his, Rouse's, side of the street, walked past Moore's car, turned around and looked "in" the windshield; that Pratt next turned around and walked back to Wilson and again had a short conversation with Wilson and that then Pratt and Wilson got into Moore's car, Wilson sitting on the front seat with Moore and Pratt on the back seat alone. Rouse stated that he was probably not more than thirty or thirty-five feet away from Wilson and Pratt at the critical times mentioned. Rouse also testified that he later followed the three men in Moore's car to Webster Avenue where Pratt left the car. This ended Rouse's pertinent connections with the episode.
Both Moore and Rouse testified that they did not see any package or any other object pass from Pratt to Wilson or from any passerby to Wilson. Moore testified, however, that when Pratt and Wilson got into his car after their meetings and conversations Wilson handed Moore two glassine bags containing heroin, and when Moore asked where the third bag of heroin was, he said, in Pratt's presence, that he and Pratt were going to "shoot it up" and that Pratt had "put" $4 toward the purchase of the third bag of heroin. Moore then told Wilson that he didn't like the way he did business and that he wanted the third bag of heroin. Moore testified that Wilson said emphatically that he was keeping the third bag and that he and Pratt were going "to shoot up the narcotics".
It appears that the court below had a number of possibilities to consider in determining whether a motion for judgment of acquittal should be granted. It is possible that Wilson lied when he said that he had to go to the Hill District to get narcotics and that he may have had them in his possession all the time. It is possible and the United States contends that it is probable that Pratt gave the two glassine packages of heroin to Wilson during the course of one of their conversations on the street. But there is no proof of this, if indeed, it be a fact. It would appear as if Pratt in his inspection of Moore in Moore's car, when he peered at Moore "in" or through the windshield, possibly was sizing up a prospective customer. The statement made by Wilson to Moore that he and Pratt were going to "shoot up" the third bag of heroin and that Pratt had "put" $4 toward its cost, indicates that there was perhaps a third bag of heroin some place or even in their possession which the two men intended to consume. But it is not contended by the prosecution that the third bag of heroin was sold to Moore.*fn2 Proof must be made by evidence. There is no proof whatsoever that Pratt ever had the two bags of heroin in his possession or that he sold or gave them to Moore in violation of the statutory charges.*fn3
As to aiding and abetting the sale of the two bags of heroin the utmost that can be mustered by way of proof favorable to the prosecution is (a) that Pratt had conversations on a street in the Hill District with Wilson, (b) that Pratt looked "in" or through the windshield at Moore, and (c) that he was sitting on the back seat of Moore's car when Wilson sold Moore the bags of heroin while sitting on the front seat.*fn4 Pratt is clothed, of course, with a presumption of innocence and to hold that the foregoing evidence is sufficient to prove that he aided and abetted Wilson in the sale of the two bags of heroin is to deprive Pratt of his liberty without due process of law; to find him guilty by association.*fn5
We have found no case on all fours with the circumstances of the case at bar but the decisions of two strong courts indicate the course which we should follow here. See Orozco-Vasquez v. United States, 344 F.2d 827, 829 (9 Cir. 1965), where the Court of Appeals for the Ninth Circuit held the proof was insufficient to establish possession of narcotics of the defendant Molano, and United States v. Duff, 332 F.2d 702, 708 (6 Cir. 1964), where the Court of Appeals for the Sixth Circuit took the position that the defendant Williams "was a passive spectator to the sale [of narcotics] but took no part in it", and set aside Williams' conviction on the third count of the indictment.
The fact that Wilson and Pratt were jointly indicted does not aid the prosecution here. A joint indictment does not create evidence.
In view of our determinations it is unnecessary to decide any other issues raised by Pratt.
The judgment of conviction will be reversed and the cause will be remanded with the direction to ...