This was a typical narcotics prosecution for violating and conspiring to violate 21 U.S.C. §§ 173 and 174. The Government’s evidence, presented through agent Broadnax and a surveilling agent, wаs to the following effect: Broadnax and an informant met one Ivey on W. 115th St. near Lenox Ave. about 12:30 P.M. on February 14, 1961. When Broadnax was represented to be interested in buying heroin, Ivey told him tо go to the Regent Restaurant nearby to await Ivey’s arrival. Ivey then went to a building at 114 W. 115th St. which he left in the company of appellant Davis and a female known as “Dot.” The two groups met at the Regent Restauraht, where they sat on opposite sides of a horseshoe *866 bar. After Ivey told Broadnax he had an ounce of heroin for sale for $175, Davis camе over and asked Broadnax to enter the men’s room. Davis there handed him a glassine envelope containing some 11% grams of heroin and received the $175. On leaving the men’s room Davis gave this to Ivey, who solicited further business from Broadnax and, in Davis’ presence, wrote on a brown paper bag the address 114 W. 115th St., apartment 1-E, and the word “Dot.” Ivey, Davis and Dot then lеft the restaurant and returned to 114 W. 115th St. Davis denied the entire story, except that he admitted being acquainted with Ivey and having been a frequent patron of the restaurant.
Davis’ argument that his “рossession” was insufficient to trigger the familiar provision in 21 U.S.C. § 174, whereby possession of narcotics “shall be deemed sufficient evidence to authorize conviction unless the defendаnt explains the possession to the satisfaction of the jury,” is insubstantial in view of the evidence of his furtive men’s-room exchange of a glassine envelope containing white pоwder for the suspiciously high sum of $175. This was entirely sufficient to warrant the jury’s finding that he knew the substance to be a narcotic, and it is hard to see how any possession could be more purposive than one incident to delivery and collection of the price. Cf. United States v. Barrington,
We start with the instructions as to the statutes. The judge first explained that 21 U.S.C. § 173 prohibits the importation of narcotics save under government regulations; in the course of doing this he said “Narcotics of this nature are not indigenous to this country. They must, of course, bе brought in from some other country, and for that l'eason this particular section was passed by the Congress to prevent the importation of these narcotics except for legitimate purposes.” This is claimed to have taken the issue of illegal importation from the jury. But the judge later told the jury on two occasions that in order to convict they must find prеcisely that. It is evident that the remarks now criticized, but not then objected to, were intended and taken merely as an explanation of the general background of the statute and not as a curtailment of the jury’s freedom to decide on illegal importation — on which, in accordance with usual practice, no evidence was submitted by either side. We are asked also to find “plain error,” F.R.Crim.Proc. 52 (b), in an instruction “that when narcotics are found in the possession of someone, unless they come forward and prove to you that something other than this particular state or condition exists, namely, that the narcotics are imported or there is other evidence in the ease to indicate otherwise, then there is a difference, but until that happens the government has the right to rely on the presumption that in fact it was imported, and that the defendant knew that it was imported.” This charge was far from ideal, and we cannot understand why, if it is deemed desirable to embroider on the clear language of the statute, a standard instruction conforming precisely to its interpretation in such cases as United States v. Mont,
Defense counsel had sharply cross-examined the agents and in an effective summation stressed the failure to make an immediate arrest and the absence of proof of the withdrawal of official funds — an argument that was not unpersuasive in view of the span of 18 months between offense and indictment and of nеarly another year between indictment and trial. The prosecutor began his response by saying “If this defendant is innocent it means that the government agents of the Federal Bureau оf Narcotics are liars, perjurers, and that they framed this defendant,” a phrasing which we have encountered in other narcotics appeals and seems to us to go somеwhat beyond the proprieties in the absence of greater provocation than existed here, but to which no objection was made. After telling the jury that “The nub of the case” was a “question of credibility” of the witnesses, the judge instructed that “Interest has always been something that a juror looks into very carefully * * that the agents “have a pride of performаnce” and “want to show that what they say is so because by the very nature of their w'^rk it is important to them,” along with other remarks similar in tenor, and that the defendant also “has a great deаl of interest in this case because should he be found guilty of this charge he will, of course, be punished * * He declined, as having been adequately covered, a subsequent oral request to charge that testimony of an agent or officer should not be given weight simply because of his office, “in other words, an officer can make a mistake on occasiоn, too.” Appellate counsel claims the instruction put a stamp of approval on the agents which the requested additional charge was needed to remove. Wе do not so read it; taken in context, it was designed rather to advise the jury that the agents had a personal interest in securing Davis’ conviction as he had in avoiding it.
Even stronger objeсtion is made that the judge defined a “reasonable doubt” as one for which, when asked what it is by a fellow juror, “you- can give a reason, then that indicates that it is a reasonable dоubt * * Such a charge, it is argued, might intimidate a juror by suggesting that he may be called upon to explain his doubts, although it surely does not require him to justify them. When a similar charge was first challenged in this cоurt a half century ago, the attack was termed “hypercritical.” Marshall v. United States, 2 Cir.,
Affirmed.
Notes
. We take the following as representative of the sаfe but somewhat uninformative conventional instruction:
“It is a doubt based on reason which arises from the evidence or lack of evidence. It is a doubt which a reasonable mаn or woman might entertain. It is not a fanciful doubt; it is not an imagined doubt; it is not a doubt that a juror might conjure up in order to avoid performing an unpleasant task or duty. Let me repeat, it is a reasonable doubt.”