UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 5, 1974
UNITED STATES OF AMERICA, APPELLEE,
RALPH REDWOOD, APPELLANT.
D.C. Criminal No. 73-289 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before ADAMS, HUNTER and WEIS, Circuit Judges
Opinion OF THE COURT
The sole issue on this appeal is whether the district court erred in refusing to instruct the jury that the "procuring agent" or "purchasing agent" theory was a valid defense to the criminal charge of unlawful distribution of heroin under 21 U.S.C. § 841(a).*fn1
Appellant correctly observes that under prior law a person could not be convicted of "selling" narcotics if he were acting solely on behalf of the purchaser. United States v. Sawyer, 210 F.2d 169 (3d Cir. 1964). Under the present law, however, the conduct proscribed is "distribution"*fn2 rather than "sale" of a controlled substance. We believe that this change of language clearly precludes the use of the "procuring agent" or "purchasing agent" defense.*fn3 Accord, United States v. Johnson, 481 F.2d 645 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044 (9th Cir. 1973); United States v. Worhopick, 479 F.2d 1142 (5th Cir. 1973).
The order of the district court will be affirmed.