Before GOODRICH, KALODNER and STALEY, Circuit Judges.
Following a jury trial defendants Benjamin Raysor and Hugh Gene Mosley were found guilty and sentenced for violations of the narcotics law.*fn1
In their respective appeals both defendants contend that there was a fatal variance between the indictment and proof in that the indictment charged them with selling narcotics to "George T. Dillworth, Narcotic Agent" while the evidence adduced at the trial established the sales were made to "Thomas Charity"; Raysor also raises the point that his "possession" of the narcotics sold was not established by "direct evidence"
The joint indictment, in two counts, on which defendants came to trial, charged that the defendants "did fraudulently and knowingly sell and facilitate the concealment and sale" of quantities of heroin on December 18, 1959 and December 21, 1959 to "George T. Dillworth, Narcotic Agent."
Viewing the evidence in the light most favorable to the Government, as the jury's verdict required, the critical facts may be stated as follows:
On the score of the first count of the indictment:
During December of 1959, one Thomas Charity, a known narcotics addict, was employed by the federal narcotics office in Pittsburgh, Pennsylvania, and was paid on a daily basis. On December 18, 1959, in pursuance of an investigation in the Pittsburgh area, Charity and federal narcotic agent George T. Dillworth met at the Federal Bureau of Narcotics office in Pittsburgh. Charity was searched and found to possess neither mony nor narcotics. Charity and agent Dillworth then proceeded to the 6300 block of Frankstown Avenue in Pittsburgh. They parked their car and as Charity got out of it he was called by Raysor who was seated in a car across the street. Mosley was standing next to the car in which Raysor was seated. Both Charity and agent Dillworth crossed the street and approached Raysor and Mosley - Charity going up to them and Dillworth remaining some fifteen feet behind. Raysor said to Charity that he was "all right" (that he had narcotics), and Charity replied that he would like to "cop" (to purchase narcotics). After some discussion a sale was agreed upon of a "spoon" for $18.50. Charity said he would have to get the money and he walked back to where agent Dillworth was standing. Agent Dillworth openly counted out the money to Charity: Charity kept it in his hand, returned and handed it to Raysor. Raysor in turn counted it and handed it to Mosley who was standing at most only a foot from Raysor. Raysor then told Charity to meet Mosley on the corner of Paulson and Frankstown Avenues, a block away, in five minutes. Charity began walking to the corner, Mosley got in a car and drove off, and agent Dillworth proceeded to Paulson Avenue by car and parked about fifteen feet from the corner.
In about ten minutes Mosley appeared at the corner, parked his car, and handed a small brown package to Charity who was standing on the corner in full view of Dillworth. Charity then crossed the street and handed the package to Dillworth through the open window of Dillworth's car while Mosley walked to his car. The package was subsequently determined to contain narcotics.
With respect to the second count of the indictment, it was testified that agent Dillworth went to Charity's home on December 21, 1959. Charity was again searched by agent Dillworth and found to possess neither money nor narcotics. Charity and agent Dillworth then proceeded to Frankstown Avenue and entered a bar there. At the entrance of the bar, and before entering, Dillworth gave Charity $36.00. They both then entered the bar and sat down at a table at which Raysor was seated. Charity asked Raysor "Do you have any turkeys?" Raysor replied "Yes, how many do you want?" Charity said two and asked how much they would cost. Raysor replied $36.00. Charity handed Raysor the money and the latter counted it. Raysor then stood up and walked over to Mosley who was standing at the bar and spoke with him. Raysor returned to the table and said "Gene [Mosley] will bring the stuff." Raysor and Mosley then left the bar and walked to an alleyway nearby where they disappeared from view. Mosley alone came out of the alley in three to five minutes and re-entered the bar. Mosley walked up to Charity and agent Dillworth who were standing at the bar, walked between the two of them and handed Charity two small brown packages. Charity thereupon, in full view of Mosley, handed the two packages to Dillworth; Charity and Dillworth then left the bar. The packages were subsequently determined to contain narcotics.
The facts as stated disclose that while the indictment in its two counts charged the defendants with sales to "George T. Dillworth, Narcotic Agent", the Government's evidence was that the sales were made to Thomas Charity who was not a narcotic agent but a decoy - known in the vernacular as a "stool pigeon".
The Government's contention below and here is that its evidence actually proved sales to Dillworth on the theory that Charity was Dillworth's agent and a sale to an agent is a sale to his principal. The trial judge squarely presented the case to the jury on the Government's theory, stating:
"Well now, we have an ordinary law in commercial law, principal in law, principal and agent. The agent is the one who acts for the principal. The principal is the one who stands back and hires, employs or engages someone to act for him, the law of principal and agent. The Government charges in this case that the sale is actually to Dillworth, the narcotic agent, and of course, you will recall the Government's testimony that they sort of cleaned that fellow Charity out before they sent him out on this task. He was using money handed to him by Dillworth and immediately after this transaction, the results of the purchase were handed back to Dillworth. I think under the testimony, the jury may find the sale was to Dillworth under the principles of agency, but if the sale isn't to Dillworth * * * they are not guilty."
The Government urges here that we recognized "this principle of agency in this type of case in United States v. Sawyer [3 Cir.], 210 F.2d 169, 170 (1954), and United States ...