MULLIGAN, Circuit Judge:
These are appeals from judgments of conviction entered after a five day joint jury trial in the Eastern District of New York before the Honorable Anthony J. Travia in March, 1971. Each appellant was convicted of facilitating the transportation of heroin (21 U.S.C. §§ 173 and 174); sale of heroin (21 U.S.C. [1205]*1205§§ 173 and 174), or aiding and abetting these offenses (18 U.S.C. § 2); conspiracy to sell and facilitate the transportation (21 U.S.C. § 174); and using a gun to facilitate the transportation of heroin (18 U.S.C. § 924(c)).
Mahlon Joseph Steward and Arthur Sands who had known each other before, met in a florist shop in Queens on the afternoon of October 28, 1970. Sands drove Steward to a tavern on Farmers Boulevard where they met Mabel and Steven Wooden. Sands then drove Steward to the Skyway Motel near La-Guardia Airport. The Woodens followed in their own car. Joseph McMillan, a federal undercover agent and Detective Kenneth Bernhardt, a New York Police Department undercover agent, were waiting in a room at the Skyway Motel prepared to make a heroin purchase. McMillan had purchased heroin from Wooden and Steward in September and earlier in the month of October, 1970. McMillan met Wooden in the lobby of the motel and brought him to a room where Bernhardt showed $15,000 to Wooden. Wooden told them that he didn’t want any funny business and that his people downstairs had their “ros-coes” (guns). Wooden and McMillan then proceeded to the parking lot where Steward was standing alone at the rear of Sands’ parked vehicle. Wooden told Steward that he had checked out the room and Steward said he would bring the stuff up to the room, including a shortage from a previous sale. After McMillan and Wooden had returned to the room, Steward came up, entered the room and removed from his waist a package containing 466 grams of heroin which he placed on the bed. On a prearranged signal other task force officers, who had been in the adjoining room, came in and made the arrests. A loaded revolver was found in Steward’s possession. Later other agents, stationed near the parking lot, approached the Wood-ens’ car where Sands was sitting with Mabel Wooden. Sands attempted to pull out a loaded gun from his waist but surrendered it to the police on request.
We affirm the conviction of Steward in all respects but reverse the conviction of Sands on all counts.
On appeal Steward argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Steward did testify on his own behalf. He claimed that he went to the florist to send a bouquet to a sick sister and there met by chance an acquaintance, Sands, who was on a comparable errand of mercy. Sands offered to drive Steward and they stopped for a drink at a tavern where Steward again by chance met another acquaintance, Wooden, who along with Mabel Wooden, wanted directions to the Skyway Motel. Sands drove Steward in the lead car to the motel, and Steward went upstairs only to use the bathroom. He claims he was pounced upon by the police as soon as he entered the room and that he did not have any drugs or gun. In view of the evidence that Wooden and Steward had sold drugs to McMillan twice before, that both Steward and Sands were armed and that Steward had brought the drugs to the room, the jury properly disbelieved his story. The evidence was certainly ample to sustain the conviction of Steward on all counts.
Steward’s other contention on appeal is that the trial court’s charge to the jury was defective since they were not advised that they could acquit him even if they found that he had possession of the drugs. The Narcotic Drugs Import and Export Act
While we have found the evidence was sufficient to sustain the conviction of Steward, we find it inadequate in the case of Sands. The government argues that the evidence was sufficient to establish that Sands had possession of the heroin or alternatively that such proof is not necessary where the aider and abettor or conspirator knows that a principal (Steward) had possession and where he was an active participant in the planned transaction. The government’s alternative position that possession by Sands is not necessary is based upon what it urges to be the “better” view reflected in the evenly split en banc court in United States v. Santore, 290 F.2d 51, 74 (2d Cir. 1960), cert. denied, D’Aria v. United States, 365 U.S. [1207]*1207834, 835, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961) . This overlooks the holding of a majority of this court in a later en banc case, United States v. Jones, 308 F.2d 26, 31 (2d Cir. 1962), where we held that, with respect to an aider or abettor who had no physical possession, his constructive possession must be established to warrant the inference of knowledge of illegal importation. That this rule is applicable to a conspirator, who must have the same mens rea as the aider and abettor, is established by United States v. Hysohion, 448 F.2d 343, at 347 (2d Cir. 1971) and by United States v.
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MULLIGAN, Circuit Judge:
These are appeals from judgments of conviction entered after a five day joint jury trial in the Eastern District of New York before the Honorable Anthony J. Travia in March, 1971. Each appellant was convicted of facilitating the transportation of heroin (21 U.S.C. §§ 173 and 174); sale of heroin (21 U.S.C. [1205]*1205§§ 173 and 174), or aiding and abetting these offenses (18 U.S.C. § 2); conspiracy to sell and facilitate the transportation (21 U.S.C. § 174); and using a gun to facilitate the transportation of heroin (18 U.S.C. § 924(c)).
Mahlon Joseph Steward and Arthur Sands who had known each other before, met in a florist shop in Queens on the afternoon of October 28, 1970. Sands drove Steward to a tavern on Farmers Boulevard where they met Mabel and Steven Wooden. Sands then drove Steward to the Skyway Motel near La-Guardia Airport. The Woodens followed in their own car. Joseph McMillan, a federal undercover agent and Detective Kenneth Bernhardt, a New York Police Department undercover agent, were waiting in a room at the Skyway Motel prepared to make a heroin purchase. McMillan had purchased heroin from Wooden and Steward in September and earlier in the month of October, 1970. McMillan met Wooden in the lobby of the motel and brought him to a room where Bernhardt showed $15,000 to Wooden. Wooden told them that he didn’t want any funny business and that his people downstairs had their “ros-coes” (guns). Wooden and McMillan then proceeded to the parking lot where Steward was standing alone at the rear of Sands’ parked vehicle. Wooden told Steward that he had checked out the room and Steward said he would bring the stuff up to the room, including a shortage from a previous sale. After McMillan and Wooden had returned to the room, Steward came up, entered the room and removed from his waist a package containing 466 grams of heroin which he placed on the bed. On a prearranged signal other task force officers, who had been in the adjoining room, came in and made the arrests. A loaded revolver was found in Steward’s possession. Later other agents, stationed near the parking lot, approached the Wood-ens’ car where Sands was sitting with Mabel Wooden. Sands attempted to pull out a loaded gun from his waist but surrendered it to the police on request.
We affirm the conviction of Steward in all respects but reverse the conviction of Sands on all counts.
On appeal Steward argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Steward did testify on his own behalf. He claimed that he went to the florist to send a bouquet to a sick sister and there met by chance an acquaintance, Sands, who was on a comparable errand of mercy. Sands offered to drive Steward and they stopped for a drink at a tavern where Steward again by chance met another acquaintance, Wooden, who along with Mabel Wooden, wanted directions to the Skyway Motel. Sands drove Steward in the lead car to the motel, and Steward went upstairs only to use the bathroom. He claims he was pounced upon by the police as soon as he entered the room and that he did not have any drugs or gun. In view of the evidence that Wooden and Steward had sold drugs to McMillan twice before, that both Steward and Sands were armed and that Steward had brought the drugs to the room, the jury properly disbelieved his story. The evidence was certainly ample to sustain the conviction of Steward on all counts.
Steward’s other contention on appeal is that the trial court’s charge to the jury was defective since they were not advised that they could acquit him even if they found that he had possession of the drugs. The Narcotic Drugs Import and Export Act
While we have found the evidence was sufficient to sustain the conviction of Steward, we find it inadequate in the case of Sands. The government argues that the evidence was sufficient to establish that Sands had possession of the heroin or alternatively that such proof is not necessary where the aider and abettor or conspirator knows that a principal (Steward) had possession and where he was an active participant in the planned transaction. The government’s alternative position that possession by Sands is not necessary is based upon what it urges to be the “better” view reflected in the evenly split en banc court in United States v. Santore, 290 F.2d 51, 74 (2d Cir. 1960), cert. denied, D’Aria v. United States, 365 U.S. [1207]*1207834, 835, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961) . This overlooks the holding of a majority of this court in a later en banc case, United States v. Jones, 308 F.2d 26, 31 (2d Cir. 1962), where we held that, with respect to an aider or abettor who had no physical possession, his constructive possession must be established to warrant the inference of knowledge of illegal importation. That this rule is applicable to a conspirator, who must have the same mens rea as the aider and abettor, is established by United States v. Hysohion, 448 F.2d 343, at 347 (2d Cir. 1971) and by United States v. Hernandez, 290 F.2d 86, 90 (2d Cir. 1961): “Possession, actual or constructive, must be shown with respect to each individual conspirator, facilitator, or aider and abettor.” The government cannot attribute Steward’s possession to Sands and thereby establish the latter’s knowledge of illegal importation — a necessary element of his conviction as a principal, conspirator or aider and abettor. Mack v. United States, 326 F.2d 481, 485 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964).
We cannot agree with the argument that Sands’ possession of the heroin can be inferred from the fact that he was the armed chauffeur of the car which brought Steward to the motel. Looking at the facts in the light most favorable to the government, there is nothing to establish that Sands exercised any dominion or control over the drugs. The cases relied upon by the government are distinguishable. They involve situations where the defendant had exclusive dominion and control over a vehicle in which the drugs were found hidden, Arellanes v. United States, 302 F.2d 603 (9th Cir.), cert. denied, 371 U. S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962) or where defendants had joint dominion and control over a vehicle wherein drugs were found secreted, Ea-son v. United States, 281 F.2d 818 (9th Cir. 1960). The drugs here were not found hidden in Sands’ car, they were in the possession of Steward. In United States v. Chiarelli, 192 F.2d 528 (7th Cir. 1951), cert. denied, 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683 (1952) the defendant’s fingerprints were found on the envelopes containing the heroin which had been carried in his car. In both Mack v. United States, 326 F.2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964) and Teasley v. United States, 292 F.2d 460 (9th Cir. 1961) there was ample evidence to establish that the defendants were knowingly participating in and facilitating drug sales which were transacted in their presence. A recent case noted that constructive possession is found only where the defendant has set the price for the sale, or was able to assure delivery or had the final say as to the means of transfer. “[I]n all of the cases in which we have upheld a finding of constructive possession at least one of these indicia has been present.” United States v. Febre, 425 F.2d 107, 111 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970).
Here there is ample evidence that Wooden and Steward were deeply involved in a criminal venture to sell drugs. They had done so before and were caught in flagrante delicto here. But Sands was never observed in any of the prior dealings and was not in the room when the arrest was made. McMillan testified that he never saw him until the day of the trial. There is no evidence at all to show that Sands knew that illegally imported drugs were involved. He was never observed handling the drugs, setting the price or in any way exercising the degree of control which has heretofore been required in these cases. In short, we find that the evidence was insufficient to establish the mens rea required for a conviction.
In view of this disposition of the case, it is unnecessary to consider the other arguments raised by appellant Sands. Since we reverse Sands’ narcotics convictions, his conviction for the use of a gun during the commission of these felonies must also be reversed.
[1208]*1208Steward’s convictions are affirmed in all respects; Sands’ convictions are reversed.
Law of Feb. 9, 1909, ch. 100, § 2, 35 Stat. 614, as amended. This Act was repealed and replaced by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236. For the sake of convenience reference will be made to the pertinent sections as they appeared in the 1964 edition of the United States Code.
21 U.S.C. § 173 (1964) provided in pertinent part:
“It is unlawful to import or bring any narcotic drug into the United States or any territory under its control or juris[1206]*1206diction; except that such amounts of crude opium and coca leaves as the Commissioner of Narcotics finds to be necessary to provide for medical and legitimate uses only may be imported and brought into the United States or such territory under such regulations as the Commissioner of Narcotics shall prescribe, but no crude opium may be imported or brought in for the purpose of manufacturing heroin. All narcotic drugs imported under such regulations shall be subject to the duties which are now or may hereafter be imposed upon such drugs when imported.
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21 U.S.C. § 174 (1964) provided:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any, such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237 (c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.
“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”