(concurring and dissenting):

I agree that the judgment of conviction must be reversed, but I disagree with the directed future course. While the majority opinion reveals the sensitive feel of my Brothers for the cause of justice, their reasoning leads to a point just one step short of the determination which, under the strange facts of this case, I would view as the desired ideal. I would not impose upon the trial court the obligation to conduct a hearing which, in my opinion, can serve no useful purpose. The record clearly indicates that no effort whatsoever was undertaken by the Government to locate the crucial witness. If it is already established that the Government made no effort at all, then how could it now *14 meet the burden of proving that it had, prior to the trial, made the “reasonable” effort which is required ?

I have referred to the facts as “strange”. They are so unique and so disturbing to me that I am compelled respectfully to suggest that the District Court, following remand, should consider another direction.

The appellant was not addicted to the use of narcotics. He had not, as far as the record shows, been previously involved in significant criminal activity. 1 This fact would seem to be relevant when it is contended that one has been entrapped into the commission of crime. See Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958). Here, the sole defense was that of entrapment. The appellant was a dishwasher and sausage maker, unemployed and ill at the time of his offense. He testified that the Government’s agent, Margarito, repeatedly importuned him to participate in the illegal importation of the contraband, emphasizing the financial gain to be made and the consequent benefits to appellant’s family. At long last, contended the appellant, he yielded to Margarito’s importunities and participated in the crime. If these were the true facts, the crime was “manufactured” by the Government, and conviction of the victim is inconsistent with rudimentary principles of decency. 2

It is impossible for me to see that the District Court, in the absence of Margarito, had been fairly and adequately ■equipped to determine the only factual issue in dispute. Only two persons were in positions to know whether or not the appellant was truly the victim of illegal intrigue. One was the appellant, and the other was Margarito, the government agent. Appellant’s credibility was, of course, subject to attack because his own liberty was at stake; however, if Margarito had been available, he may have admitted that the facts presented by appellant were true. On the other hand, had he, being present, disputed the facts, the District Court would have been enabled to weigh the comparative credibilities of the disputants, taking into consideration the possible bias of Margarito because of his previous receipt of money from the Government for his activities in the Government’s behalf. Margarito was not available as a witness. He accompanied appellant across the international frontier and to room 15 of the Flamingto Motel in San Ysidro, California. In the room were only three people, namely, appellant, Margarito, and the second government agent, Eyman. The latter corroborates appellant’s testimony that it was Margarito, and not appellant, who had possession of the contraband. Margarito removed the drug from his pocket and handed it to appellant, who in turn passed it to Eyman. It is thus uncontradicted that appellant had possession of the drug in this country for only an instant, acting as a mere conduit for the exchange of possession. Margarito was then directed to return to Mexico. The direction was admittedly given by one Gates, another government agent, who, until the moment of arrest, had been waiting in a room adjoining that in which the transfer of the drug occurred.

It is established that the Government is not required to reveal to an accused *15 the identity of one who furnishes “information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53, 59 , 77 S.Ct. 623, 627 , 1 L.Ed.2d 639 (1957). 3 It is equally well established that, when one whose identity is sought has been a direct participant in the crime his identity must be supplied upon request. Roviaro v. United States, supra.

The only logical reason for the rule is that the revelation of identity will enable the production as a witness of one whose testimony is deemed essential to the fair determination of the truth. Here, the identity of Margarito was known to appellant, but this knowledge was obviously useless if appellant, truly and justifiably, remained unable to compel his presence. It seems logical to me that if the prosecution is required to convey information as to the identity of its employee who is a criminal participant, then it should also be required to supply information as to the location of the participant if that information is essential to the production of the agent as a witness.

Here, the government witnesses testified that they were ignorant of the whereabouts of Margarito. They say that their previous contacts with him had come only when he communicated with them by telephone and when government money was delivered to him. Under the extreme circumstances of this case, this answer is not acceptably satisfactory to me. In Williams v. United States, 273 F.2d 781, 796 (9th Cir. 1959), cert. denied, 362 U.S. 951 , 80 S.Ct. 862 , 4 L.Ed. 2d 868 (1960), our court repeated, from Eberhart v. United States, 262 F.2d 421, 422 (9th Cir. 1958), “[T]he failure of the Government to produce an informer or other person as a witness does not violate the defendant’s rights. The Government has no duty to place on the witness stand every person with some knowledge of the circumstances.” (Emphasis added.) But Judge Jertberg, the author of the opinion in Williams, proceeded the quoted language by emphasizing that the informer was not a participant in any of the offenses charged against the appellants in that case and by pointedly stating that “the rationale of the Roviaro case is that the government should identify the informer in order to insure that a defendant can have a full and fair chance to defend himself against the offenses charged by having knowledge of who the informer is.” Our court emphasized that “this is especially a requirement of fairness when the informant has been an active participant in the crime charged.” 273 F.2d at 796 . (Emphasis added.) To me this clearly indicates a belief that when the Government chooses to involve one of its agents in the direct participation of crime, considerations of common fairness demand that the Government assume obligations which may vary with the extent of its involvement. Here, it should have been clear to the Government that appellant would probably invoke the defense of entrapment. All would know that Margarito’s testimony would be essential to a full and fair determination of the issue. I read Roviaro as requiring not only identification, but also possible accessibility of the needed witness when his presence is necessary to fulfill the fundamental requirements of fairness. We ignore the spirit of Roviaro if we limit its application to its narrow holding even when the facts of an extreme case demand that more is required than the mere disclosure of the informer’s identity.

Under all the unusual circumstances of the case at bar, I would hold that the Government, upon the request of the defendant, which here was timely made, was obliged either to produce its agent Mar *16 garito as a witness or to obtain and supply to the appellant such information as would enable appellant to bring him before the court. 4 In no other way, do I believe, could it have been possible for the District Court fairly to resolve the crucial question and to fit appellant’s trial to the ideal traditions of American justice.

. Defendant had never been in jail for any ci’iminal activity prior to the present charge. His only other difficulty with United States authorities was that of twice entering this country illegally in 1948 and 1953. He was sent back to Mexico each time.

. “[T]f a government agent by improper means or over-bearing persuasion or wrongful conduct induces a person of ordinary firmness to commit a crime which he would not otherwise commit, then under those circumstances the defendant is to be acquitted, not because he did not do something wrongful but because he was induced to do a wrongful act which he would not otherwise have done.” Lopez v. United States, 373 U.S. 427 , 433 n. 4, 83 S.Ct. 1381, 1385 , 10 L.Ed.2d 462 (1963), quoting the trial court’s instruction on entrapment to the jury. See also Sherman v. United States, 356 U.S. 369, 372 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U. S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932).

. Citing Scher v. United States, 305 U.S. 251, 254 , 59 S.Ct. 174 , 83 L.Ed. 151 (1938) (“unless essential to the defense, . ”) ; In re Quarles & Butler, 158 U.S. 532, 535-536 , 15 S.Ct. 959 , 39 L.Ed. 1080 (1895) (informing is a right or privilege secured by the Constitution or laws of the United States); Vogel v. Grauz, 110 U.S. 311, 316 , 4 S.Ct. 12 , 28 L.Ed. 158 (1884) (communication by informer to state’s attorney held privileged in defamation suit).

. See Judge Waterman’s opinion in United States v. Cimino, 321 F.2d 509, 512 (2d Cir. 1963) (concurring in part, dissenting in part). Although entrapment is not discussed, the failure of the Government to produce an informer as a witness is fully considered. Judge Waterman considers such failure, not only in the light of Roviaro, but also under the evidentiary rule that failure to produce a witness is indicative that his testimony would be unfavorable to the party having the power to produce him. Wigmore, Evidence §§ 285, 286 (1940 ed.). Judge Waterman concludes that if an informer is not produced when such informer is better able to testify to the facts in issue than are alternative government witnesses, then “unless his production is prevented by believable circumstance superior to governmental power, or prevented by proven deliberate interferences by defendant [the defendant] should be acquitted.” 321 F. 2d at 517 .