(Dissenting):

I respectfully dissent. The appellant, charged with two counts of knowing and unlawful transfer of cocaine, was acquitted on the first count and convicted on the second count. The only evidence sufficient to sustain her conviction on the second count consisted of hearsay statements made by her alleged accomplice,- Diana Jean Edmond, to a government agent. Those statements were offered at trial, not by Edmond, but by a government agent to whom the statements were made.

On appeal the appellant argues: (1) There was insufficient independent evidence of her participation as an agent or co-conspirator to justify admitting the statements as an exception to the hearsay rule; (2) the court gave no cautionary jury instruction regarding the testimony of an accomplice; and, (3) there was improper comment by the prosecutor which deprived the appellant of a fair trial.

The majority, in my view, has misapplied the law in deciding appellant’s first contention. The rule in our Circuit, as recently stated in United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972) requires that the independent evidence of conspiracy be sufficient to constitute a prima facie case. In other words, a case presenting sufficient uncontradicted evidence to support a judge’s finding that a conspiracy existed and that the defendant was a participant. Accord, Carbo v. United States, 314 F.2d 718 (9th Cir. 1963). The standard set forth in Spanos, supra, does not conflict with United States v. Ragland, 375 F.2d 471 (2d Cir. 1967) relied on by the majority. Ragland , which was cited in Spanos, supra, requires that there be independent evidence of conspiracy sufficient to support a finding of a joint undertaking. United States v. Ragland, supra, 375 F.2d at 476 . The evidence must show that the accused has associated himself with the venture as a participant desirous of furthering its goals. United States v. Ragland, supra, citing United States v. Peoni, 100 F.2d 401 , ,403 (2d Cir. 1938). Accord, United States v. Spanos, supra.

The independent evidence of conspiracy in the instant case consisted merely of the appellant’s presence at the scene of the first transaction, and her delivery of a Christmas present for her ex-husband to her alleged accomplice, Diana Jean Edmond, just prior to the second transaction. Before the appellant’s arrival with the Christmas package, Edmond made a telephone call to an unknown person, and a few minutes later received a telephone call from an unknown person. It was shortly thereafter that the appellant arrived outside the apartment building and delivered the Christmas package to Edmond. Edmond was out of the agent’s sight from the time she entered the building until she went into the apartment, opened a Christmas package, and delivered the cocaine inside to the agent. The independent evidence against the appellant, while it may give rise to a suspicion that she was involved, falls far short of establishing a prima facie ease that she was acting in concert with Edmond or that she was a participant in a conspiracy to violate the narcotics laws. A prima facie case requires that there be evidence tending to show the existence of all the elements involved—i. e., substantial evidence that the accused knowingly associated himself with others in the commission of a particular crime. Ong Way Jong v. United States, 245 F.2d 392, 394, 396 (9th Cir. 1957); United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972); Krulewitch v. *1322 United States, 336 U.S. 440, 453 , 69 S.Ct. 716 , 93 L.Ed. 790 (1948). See Mayola v. United States, 71 F.2d 65 (9th Cir. 1934); United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). See also, Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159, 1168 (1954).

The first evidence offered against the appellant consisted of her presence at the apartment wherein the first transaction occurred. Ong Way Jong, supra, holds that mere presence or association with other guilty parties is not enough to show concert of action or conspiracy to commit criminal acts. Furthermore, the appellant was acquitted of complicity in the first transaction, which involved Charles Randall and Diana Edmond. There is nothing to show that the second transaction was in any way connected with the first, as part of a common plan or scheme, and only Edmond was involved in the second transaction. The conspiracy which must be shown by independent evidence before hearsay statements of co-conspirators can be admitted against others must be a conspiracy to accomplish a particular objective. Here, wherein the prosecution was attempting to show the appellant’s connection with the second transaction, her mere pressence at the scene of a prior transaction, not shown to be connected with a second transaction, was not even relevant to establish her involvement in the second transaction.

The other evidence offered by the prosecution concerned the appellant’s arrival outside the apartment building shortly after Edmond had placed a call to an unknown person and received a return call from another unknown person a few minutes later. There is no evidence that the telephone call was placed to and returned by defendant other than the hearsay statements themselves. Furthermore, there is no evidence that the box delivered by the appellant either contained narcotics at the time it was delivered to Edmond or that the box opened by Edmond in the apartment was the same box that the appellant had delivered. As previously emphasized, Edmond was out of sight of the agent from the time she entered the apartment building until she entered the apartment itself. Davis v. United States, 382 F.2d 221 (9th Cir. 1967); People v. Blackshear, 261 Cal.App.2d 65 , 67 Cal.Rptr. 662 (1968); People v. Lawrence, 168 Cal.App.2d 510 , 336 P.2d 189 (1959). The agent testified only to the description of the box which she saw the appellant hand to Edmond. There was no testimony describing the box which was opened in the apartment, nor was there testimony that the box in the apartment was similar to the one appellant gave Edmond. Disregarding hearsay statements by Edmond, the only evidence against the appellant was that she was in an apartment where narcotics were surreptitiously delivered to a government agent on one occasion, and that she delivered a Christmas present to Edmond shortly before Edmond delivered narcotics to a government agent on another, later occasion. This evidence does not make out a prima facie case of conspiracy or concerted action on the part of appellant to achieve a criminal objective, and the admission of the hearsay statements against her constituted prejudicial error of the most flagrant nature.

The appellant’s second argument is that she should have been given the benefit of a cautionary instruction to the jury concerning the reliability of statements by alleged accomplices. Such an instruction would, of course, have been unnecessary had the court correctly refused to admit the hearsay statements in the first place. But assuming that the hearsay statements were properly admitted, this is the kind of case demanding that the court should present a cautionary jury instruction on its own motion. When the conviction of the accused rests on incriminating statements made by alleged accomplices who are unavailable at trial, there is a crying need for such an instruction. The out-of-court declarant in this case was a fugitive from justice. The hearsay statements were related to a jury by a gov- *1323 eminent witness. The appellant was unable to confront and cross-examine her accuser, and without the hearsay testimony there would have been no evidence sufficient to convict. Such circumstances should require a court to give the cautionary instruction, regardless of whether or not it is requested by counsel. Our court has previously held that it is prejudicial error to fail to give such an instruction when requested, 1 and we have often noted that the giving of such an instruction is by far the better practice even if not requested. 2 In cases such as this, when the case against the accused rests primarily on the uncorroborated hearsay testimony of an unavailable witness, it is, I think, essential that the “better practice” should become the required practice.

I agree with my Brothers that the appellant’s third contention is without merit, but for the reasons I have set forth, I would reverse.

. United States v. Davis, 439 F.2d 1105 (9th Cir. 1971) ; Sabari v. United States, 333 F.2d 1019 (9th Cir. 1964) ; Toles v. United States, 308 F.2d 590, 592 (9th Cir. 1962) ; Crawford v. United States, 212 U.S. 183 , 29 S.Ct. 260 , 53 L.Ed. 465 (1909).

. Bible v. United States, 314 F.2d 106, 108 (9th Cir. 1963) ; United States v. Davis, 439 F.2d 1105, 1106 (9th Cir. 1971).