Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
Following a jury trial, defendant-appellant Frank Malfi and James Santore were found guilty of violations of the narcotic*fn1 and conspiracy laws.*fn2
Malfi prosecutes this appeal from the District Court's judgment of conviction, entered following its denial of his motion for judgment of acquittal or for a new trial, on these grounds: there was insufficient evidence to sustain the jury's verdict as to Counts 1 and 3 of the indictment, and fundamental error by reason of inadequate instructions to the jury with respect to the offenses charged in Counts 2 and 4. The conspiracy conviction in Count 5 is not challenged.*fn3
The five-count indictment related to illegal sales of substantial quantities of heroin allegedly made by Malfi and Santore in Washington Township, New Jersey, on July 25 and August 22, 1957.
Viewing the evidence in the light most favorable to the Government, as the jury's verdict requires, the facts are as follows:
Federal narcotic agents Picini and Marshall met Santore in Philadelphia, Pennsylvania, on July 18, 1957, subsequent to previous negotiations and conversations; at that time Santore told the agents he had made arrangements for them to meet "his connection" and asked for and received $300.00; on July 23, the agents met Santore and Malfi and discussed terms for the purchase of uncut heroin; at that time Malfi said that "he had made arrangements with his connection, and had been advised that he could obtain uncut heroin" provided "the money would have to be paid in advance"; on July 24 the agents met Malfi and Santore and paid him $3,000.00 in advance for half a kilo of heroin which was to be delivered by Santore at the King Cole Motel near Williamstown, New Jersey; on July 25 Santore delivered 10 ounces 6 1/2 grains of heroin to the agents at the King Cole Motel, receiving an additional $200.00 at the time; on July 29 Santore, in the presence of Malfi, advised the agents that he had delivered more than he thought and later that day the agents paid Malfi an additional $750.00 - the agreed price; on August 5 and again on August 13 the agents met Malfi and Santore in Philadelphia and negotiated the purchase of another half a kilo of heroin for $5,100.00 to be paid to Malfi and $600.00 to Santore; $3,100 was paid on account by Picini to Malfi at the August 13 meeting; on August 21 the agents went to Malfi's home and complained to him about the failure to deliver the heroin and were told by him that the $3,100.00 "was already in the hands of the connection, that he was going up that night to make sure that the heroin would be delivered either late that night or the next day" and that "as soon as he got the heroin he would deliver it to Santore, and Santore would deliver it to us, and said for us to remain at the motel, and Santore would contact us there"; on the morning of August 22 Santore delivered to the agents at the motel 17 ounces, 153 grains of heroin and was paid $2,250.00; four days later the agents paid Santore an additional $300.00; no written order for the heroin was ever given by the agents to Malfi or Santore; Malfi was not in New Jersey when the deliveries of the heroin took place and his fingerprints were not found on the packages delivered.
Malfi moved for acquittal at the close of the Government's case, and, when his motion was denied, rested.
In Count 1 Malfi and Santore were charged with the sale made on July 25, 1957, and in Count 3 with the sale on August 22, 1957, in violation of 21 U.S.C.A. § 174; Counts 2 and 4 charge them with making the respective sales in violation of 26 U.S.C. § 4705(a).
Title 21 U.S.C.A. § 174 provides in applicable part:
"Whoever fraudulently or knowingly imports * * * any narcotic drug into the United States * * * contrary to law, or * * * sells, or in any manner facilitates the transportation * * * or sale of any such narcotic drug after being imported * * * knowing the same to have been imported * * * contrary to law, or conspires to commit any of such acts * * * shall be imprisoned * * * and * * * may be fined * * *.
"Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."
Title 26 U.S.C. § 4705(a) provides:
"It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate."
With respect to Counts 1 and 3, Malfi contends that the evidence is insufficient to sustain the judgment, there was not "direct" evidence he says that he knew the narcotics had been illegally imported or that he ever had physical possession of the heroin sold, and, consequently, the presumption of illegal importation ...