Llamas and Rodriguez appeal from their convictions of selling and conspiring to sell narcotics in violation of 21 U.S.C. § 174 and 18 U.S.C. §§ 2 and 371. Although sharply contested, there was ample testimony from federal narcotics agents to support the jury finding that defendants sold narcotics to one of the agents. Hence the appeal must fail unless there were errors in the trial. The *393 only substantial question here is raised by the attack directed to the judge’s charge relieving the prosecution of any adverse inference due to its failure to call' as a witness a special employee and informer who was shown to have been present and to have observed the sale. This involves an issue of great potential importance, although for reasons we shall indicate we do not think it is here presented in a way requiring definitive explication.
The chief government witness was Agent Garofalo, who testified that, accompanied by the informer, Joe Siena, he made contact with the defendants and purchased heroin from them. He was corroborated in part by Agent Hermo, who observed the contacts made and the heroin after it was delivered, though he did not see the actual delivery in an apartment. The defendants produced one Pedro Elias, who testified that it was he who made the sale; and there was some corroborating evidence from Rodriguez and two others, Llamas not taking the stand. Siena was not called and there was no testimony as .to his present availability, 1 ****though the defense did bring out through cross-examination of the agent that Siena was a paid informer. No request to charge on this issue was presented, and the judge of his own accord toward the end of a lengthy charge gave the instructions here under attack. At the close of the charge defense counsel raised certain issues not here pertinent and then informed the court that he had no further requests to make. It is now asserted, however, that the instructions were so manifestly erroneous that we should note them and reverse.
According to what appears to be the preferred rule, the judge was not required to give an instruction upon the issue, McCormick on Evidence 535, 536 (1954); United States v. Cotter, 2 Cir.,
“It is only when it is shown that the testimony of an uncalled witness would be superior in respect to the facts to be proved — would be superior to the testimony that has already been introduced by the witness who has been called, that the failure to call a witness would permit you to draw an inference.”
And he asked whether there was any testimony to demonstrate that if Siena had been called, his testimony would be any superior to that of Garofalo. He concluded by saying that, since there had been no such showing as to Siena or as to another informer, Cortez, 2 “you cannot draw an inference that had they been called their testimony would have been any different than those called.”
Now it is clear that the charge does not give a full synthesis of the law touching on the subject. Thus the statement that no inference arises from failure to call a witness whose testimony would not be superior to that offered or in effect would be cumulative apparently comes from 2 Wigmore on Evidence § 287 (3d Ed. 1940) and may well be appropriate, as in United States v. Antonelli Fireworks Co., 2 Cir.,
This analysis seems helpful here. The stated conditions seem perhaps likely or probable, but were not adverted to at the trial; and we are left in the dark as to how far they were satisfied. Had they chosen, the defendants could have dispelled this uncertainty by examining the government witnesses as to the whereabouts of Siena and calling for Siena's production if it appeared that the government could produce him or by taking steps to subpoena Siena or asking that he be called as the court’s witness. United States v. Romano, 2 Cir.,
Other errors are without merit. The charge holding the statutory presumption of 21 U.S.C. § 174 applicable to constructive possession of the narcotics was in accord with our holding in United States v. Cox, 2 Cir.,