Hastings, Kiley and Kerner, Circuit Judges.
James Phillips appeals from a judgment of conviction entered October 24, 1967 after a jury found him guilty of selling heroin to a federal narcotics agent on July 17, 1964 in violation of 26 U.S.C.A. § 4704(a).*fn1 The trial court sentenced appellant to imprisonment for a term of three years.
Appellant was indicted with Edward Burke and Ulysses Gougis, Jr. in April, 1965 on charges rising out of the July 17 sale and an earlier sale of heroin on July 14, 1964. As to the July 14 sale appellant and the others were charged with selling heroin in violation of 26 U.S.C.A. § 4705(a)*fn2 and facilitating the sale of heroin in violation of 21 U.S.C.A. § 174.*fn3 As to the July 17 sale appellant and Burke were charged with selling heroin in violation of 26 U.S.C.A. § 4705(a) and facilitating the sale of heroin in violation of 21 U.S.C.A. § 174. Gougis was also charged with a narcotics violation on January 27, 1965. Following a bench trial appellant was found guilty of selling heroin on July 17, not guilty of selling heroin on July 14 and not guilty of facilitating a sale on either occasion. Burke was found guilty on all counts, and Gougis was found guilty of the January, 1965 violation only.*fn4
On November 30, 1965, the trial court, Honorable James B. Parsons presiding, acting on appellant's motion for new trial, vacated and set aside its finding of guilt and judgment of conviction as to appellant.
On February 21, 1967, the United States Attorney filed an information charging appellant with the sale of heroin not in, or from, the original taxstamped package on July 17, 1964 in violation of 26 U.S.C.A. § 4704(a). The conviction appealed from is based on that information. Appellant had earlier waived indictment on the § 4704(a) charge. On February 27, 1967, the indictment charging the § 4705(a) violation was dismissed as to appellant on the Government's motion.
Trial on the information was to a jury, the Honorable Bernard M. Decker, presiding. The Government's evidence showed the following. On July 17, Agent Carl Jackson of the Federal Bureau of Narcotics called appellant and said he was "ready to get another spoon of stuff."*fn5 Appellant responded, "Yeah, we have been waiting on you. Why don't you do this: Come on out, and I will be waiting." Jackson went to appellant's residence and rang the door buzzer, but no one answered. As he was leaving, Burke walked around the corner and approached him. Burke said, "We have been waiting on you to come back." Jackson told Burke he had just talked with appellant and appellant instructed him to come out and get the other spoon. Burke replied, "Yes, he told me." Burke told Jackson that appellant had to leave and asked Jackson to come with him. Jackson accompanied Burke, who subsequently sold Jackson a spoon of heroin. Appellant was not present during any of these occurrences and had no conversations with Jackson after the telephone call.
Appellant was arrested by narcotics agents on October 24, 1964. When informed that he was being arrested for selling narcotics to Jackson, he replied that he had not given Jackson any money and had not handed him any narcotics. When asked who helped him procure the heroin, he replied that it was Burke and Gougis.
The Government concedes that this evidence was not sufficient to prove the offense charged in the information, since it did not establish a relationship between appellant and Burke, who transacted the illegal sale. It concedes that Burke's extrajudicial declarations were admissible only if other evidence established an agency relationship between appellant and Burke.
To prove the charge against appellant the Government had to establish either that he and Burke were acting in concert, making him liable as a principal,*fn6 United States v. Dillard, 7 Cir., 376 F.2d 365 (1967); United States v. Jones, 2 Cir., 308 F.2d 26 (1962); Walker v. United States, 5 Cir., 301 F.2d 94 (1962), or that he associated himself with the criminal venture and participated in it in a purposeful way, making him liable as an aider and abettor,*fn7 Nye & Nissen v. United States, 336 U.S. 613, 69 S. Ct. 766, 93 L. Ed. 919 (1949); United States v. Dillard, supra; United States v. Alexander, 7 Cir., 219 F.2d 225 (1955).
There is no direct evidence connecting appellant with Burke's sale of heroin to Jackson on July 17. To support the inference that Burke and appellant were acting together on July 17 the Government introduced, over appellant's objection, evidence of the July 14 heroin transaction involving appellant, Burke, Gougis, and Agent Jackson. That evidence consisted of the testimony of Jackson and was substantially identical to his testimony at the earlier trial on the indictment. The substance of his testimony was that he asked appellant for heroin, that appellant took him to Burke, describing Burke as his "source", that Burke sold him heroin in appellant's presence, and that Burke approved his suggestion that he call appellant if he wanted more heroin.
The trial court refused to inform the jury that appellant had been tried and acquitted on charges rising from the July 14 heroin sale. Appellant adequately raised the question at trial and we may therefore consider it on appeal.
It is well-established that the doctrines of res judicata and collateral estoppel operate in criminal cases to conclusively establish, as between the parties, those facts necessarily litigated and finally determined in valid proceedings. Hoag v. State of New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958); Sealfon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L. Ed. 180 (1948); United States v. Kramer, 2 Cir., 289 F.2d 909 (1961).
As noted, appellant's trial on the July 14 charges was a bench trial. The trial judge gave as his reasons for acquitting appellant that he was not convinced appellant was aware of "what was going on" on July 14 and, alternatively, that appellant's activities "did not constitute active transfer or the aiding, abetting, counselling or procuring such act of transfer." That proceeding thus determined that appellant's state of knowledge and level of ...