Appellants went to trial before a jury on November 9, 1965, on a thirteen-count indictment. All counts except Count Eight charged violations of Title 21, section 174 of the United States Code. Count Eight alleged a violation of Title 21, section 176a of the United States Code.

Appellant Javor was charged on Counts Ten and Eleven only. He was convicted on both counts. Javor was sentenced to serve seven years on Count Ten and seven years on Count Eleven, the sentences to run concurrently.

Appellant Rice was charged in all thirteen counts. However, before the jury was impaneled, Counts Six and Seven, which named only Rice, were dismissed. Rice was found guilty as charged in the remaining eleven counts.

Appellant Toroker was charged in Counts One, Two, Five, Eight, Nine, Ten, Eleven, Twelve, and Thirteen and convicted on all of the said counts.

Both Rice and Toroker were committed for study pursuant to Title 18, section 4208(b) and (c) of the United States Code. After study, each of them was sentenced to serve five years for each count of which they were convicted, all sentences to run concurrently.

We have carefully considered appellants’ several assignments of error. Just three contentions of appellants merit discussion.

QUESTION I

Appellants Rice and Toroker contend that the trial court committed prejudicial error in the manner in which it instructed the jury on entrapment. The government concedes that the trial court committed error.

However, we note that Toroker denied the commission of the offenses charged against him in Counts One, Two, Five, Twelve, and Thirteen. Rice denied the commission of the offenses charged against him in Counts One, Two, Three, Four, Twelve, and Thirteen. Toroker interposed the defense of entrapment and was entitled to an instruction on entrapment as to Counts Eight, Nine, Ten, and Eleven. Rice interposed the defense of entrapment and was entitled to an instruction on entrapment as to Counts Five, Eight, Nine, Ten, and Eleven.

Toroker was not entitled to an entrapment instruction as to Counts One, Two, Five, Twelve, and Thirteen. Rice was not entitled to an entrapment instruction as to Counts One, Two, Three, Four, Twelve, and Thirteen. Ortiz v. United States, 358 F.2d 107 (9th Cir. 1966); Ortega v. United States, 348 F.2d 874 (9th Cir. 1965).

Since Rice and Toroker were sentenced to serve five years on each of the several counts of which they were convicted, all sentences to run concurrently, the error in the entrapment instruction does not affect a number of counts of which they were convicted and therefore will not be considered on appeal. Chavez v. United States, 387 F.2d 937 (9th Cir. 1967); Jack v. United States, 387 F.2d 471 (9th Cir. 1967); Ayala v. United States, 371 F.2d 515 (9th Cir. 1967) ; Mathis v. United States, 354 F.2d 653 (9th Cir. 1965); Stein v. United States, 263 F.2d 579 (9th Cir. 1959).

QUESTION II

Appellants Rice and Toroker urge that they were denied due process of law in that they did not have a proper determination outside of the presence of the jury that their confessions were voluntary.

Under Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964), a defendant who objects to the admission of his confession is entitled to have the issue of voluntariness determined by a tribunal other than the convicting jury ( 378 U.S. at 391 , 84 S.Ct. 1774, note 19 ); in this case, by the trial judge. The trial judge’s resolution of the issue is “preliminary” in the sense that it precedes the submission of the same issue to the jury, but it is in no sense a partial, limited or tentative determination. On the contrary, it is the primary determination of the issue of voluntariness; it is the determination required by the Constitution. It is the only determination of the issue in jurisdictions following the “orthodox” rule. 378 U.S. at 378 , 84 S.Ct. 1774 . The trial judge’s determination must therefore involve a full resolution of the constitutional issue “including the resolution of disputed facts upon which the voluntariness issue may depend.” 378 U.S. at 391 , 84 S.Ct. at 1788 .

The trial court’s obligation is not satisfied by a determination that the government has made out a prima facie case that the confession was voluntary, leaving it to the jury to determine on conflicting evidence whether the confession was freely and voluntarily made; it is “for the trial judge to first decide these conflicts and discrepancies.” See also Jackson v. Denno, 378 U.S. at 377-378 , 84 S.Ct. 1774 ; Burns v. Beto, 371 F.2d 598, 603-604 (5th Cir. 1966). Cf. Mullins v. United States, 382 F.2d 258, 261-262 (4th Cir. 1967); Fisher v. United States, 382 F.2d 31, 34 (5th Cir. 1967); Kear v. United States, 369 F.2d 78, 84 (9th Cir. 1966); Butterwood v. United States, 365 F.2d 380 (10th Cir. 1966); United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965).

And it is also settled that although express findings are not required, the fact that the trial court has made such a full and independent determination of the voluntariness of the confession must be ascertainable from the record as a whole. Jackson v. Denno, supra.

Appellants Rice and Toroker objected to the introduction of their confessions on the ground that they were not freely and voluntarily made, principally because they were given while appellants were under the influence of the drug LSD. The trial judge excused the jury and heard the testimony of the government agent who had taken the confessions. The agent testified that both appellants denied they were under the influence of LSD, and that they appeared to be normal and rational. Pursuant to stipulation, the court considered as appellants’ presentation in support of their claim the contents of the reports of two physicians who had examined appellants. These reports are not in the record, but it appears that they recited a history of heavy and prolonged use of LSD by appellants and statements of opinion by the physicians, based on this history, that appellants were incapable of rational judgment at the time the confessions were taken.

The trial judge overruled appellants’ objection to the admission of the confessions. Appellants contend that the court did not make the determination required by Jackson v. Denno.

In our opinion, appellants’ contention must be sustained on the record as a whole. It is true that the trial judge indicated on several occasions that the issue before him was the voluntariness of the confessions. But other statements by the judge suggest that he regarded his function to be only that of determining whether the government had made out a prima facie ease, leaving it to the jury to resolve the conflicts between the government’s evidence and that offered by the appellants. All that the judge said on the subject is set out below, with certain portions emphasized.

The court first stated its view in these words:

On the other hand, in opening the hearing, the court said:

And later, referring to the doctors’ reports, the court said:

But shortly thereafter the court returned to its earlier theme:

And in announcing its decision, the court said:

Finally, after instructing the jury that it must determine whether the confessions were voluntary, the court said:

It cannot be said that it is ascertainable from the record as a whole that the trial court discharged its duty to resolve the evidentiary conflicts as to whether the confessions were given under the influence of LSD, and appellants therefore were not accorded the rights announced in Jackson v. Denno.

The case must, therefore, be remanded to permit the trial court to make an independent determination of the facts and the voluntariness of the confessions either upon the record as it now stands or upon the present record supplemented by additional evidence should the court deem it appropriate to receive such additional evidence.

QUESTION III

The written confessions of both Rice and Toroker identified Javor as the source of the contraband. The trial judge proposed that counsel stipulate before the jury that Rice and Toroker had, at a prior time, admitted committing all of the offenses set forth in the counts of the indictment, under which each was charged. Counsel so stipulated, and no reference was made to the source of the narcotics in the government’s ease-in-chief.

During the presentation of the defense, Rice and Toroker testified under examination by defense counsel that one “Nick” and not Javor was the source of the contraband and, further, that Javor was present on critical dates at the residence of Rice and Toroker for legitimate business purposes only.

On cross-examination the government was permitted, over objection, to confront both Rice and Toroker with certain portions of their written confessions, wherein each had named Javor as the supplier of the narcotics, and had stated that Javor’s presence at their residence on the critical dates was in connection with this activity. Both Rice and Toroker eventually admitted that they had made these statements in their written confessions. The court carefully and fully instructed the jury that such evidence was received solely for impeachment and only against Rice and Toroker, and that it was not to be considered against Javor for any purpose.

In the opinion originally filed in this appeal, we held that on this record Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), applied retroactively under Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 (1968) (both decided after the appeal in the present ease had been submitted), required reversal as to Javor. The government filed a petition for rehearing, urging that we had misread Bruton . Whether our original ruling was right or wrong, we are satisfied that it was premature.

If, after determining the facts, the trial court decides that the confessions were involuntary, all three appellants will be entitled to a new trial. Javor was not prejudiced when the admissions of Rice and Toroker were submitted to the jury in the government’s case-in-chief because the trial court took steps which effectively precluded any reference to Javor. However, if the confessions were inadmissible, their use to impeach Rice and Toroker was also improper (Groshart v. United States, 392 F.2d 172 , (9th Cir. 1968)), and this improper use unquestionably prejudiced Javor.

To decide now whether, assuming the confessions were admissible in evidence, their use for impeachment would be proper or improper in the circumstances of this ease, would require the resolution of substantial constitutional issues which it may become unnecessary to decide.

The case is remanded for further proceedings. If the confessions are found to be involuntary, all three appellants shall be given a new trial. Should the confessions be found voluntary, appellant Javor’s appeal may be resubmitted on a supplemental record, briefs, and oral argument.

. Language in pre-Jackson v. Denno opinions (see, e. g., Dyson v. United States, 283 F.2d 636, 639-640 (1960); Leonard v. United States, 278 F.2d 418, 421 (1960); Smith v. United States, 268 F.2d 416, 420 (1959), which might be read as permitting the trial court to submit a confession to the jury without first independently determining the issue of voluntariness on a full evaluation of the evidence, including a resolution of conflicts and questions of credibility, must be treated as superseded by that decision. . After the instant case was tried, the Supreme Court, in Sims v. Georgia, 385 U.S. 538 , at page 543, 87 S.Ct. 639 , at page 643, 17 L.Ed.2d 593 (1967), applied the rule of Jackson v. Denno, saying: A constitutional rule was laid down in that case [Jackson v. Denno] that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. * * * Although the judge need not malee formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record loith unmistakable clarity. (Emphasis added.) The requirements of Jackson v. Denno are applicable to federal courts under the due process clause of the Fifth Amendment. United States v. Feinberg, 383 F.2d 60, 69 (2d Cir. 1967). Cf. Kear v. United States, 369 F.2d 78, 84 (9th Cir. 1966). . Rice and Toroker also testified that the confessions were rendered involuntary by incommunicado in-custody interrogation, threats of imprisonment for “a long time,” possibly “180 years,” if they did not cooperate, and various promises of lenient treatment if they confessed. . Compare Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968), wherein the trial court, in admitting a confession, stated: “The Court feels that this is a jury question.” We remanded for compliance with Jackson v. Denno.