dissenting:

Appellant was found not guilty of Count I of the indictment which charged that he “did knowingly and intentionally import into the United States of American from Mexico approximately 1,833 pounds of . . . marijuana.” This verdict is consistent with the findings of the Drug Enforcement Administration agent who testified that he found horse tracks to the Mexican side of the fence and four sets of footprints on the American side of the boundary and leading up to the stash. Ferguson’s footprints were not among those. (R.T. at 54). The “import” was made by throwing the bags of marijuana over the fence and then transporting them to the point where they were found. There is not the slightest evidence that appellant had anything to do with that handling of the marijuana. Possession in the sense of actual physical custody and control over the marijuana was therefore in the persons who left those tracks and made the stash. Ferguson, was not one of those four. These are the same footprints observed between the marijuana cache and the van. (R.T. at 51). If the marijuana was ever transferred from the stash into the van, which is speculative, it must have been retransferred back to the original cache because it was not in the van when the van was stopped the following morning on its way back from whence it came and was diverted to Nogales.

A fair reading of the indictment on Count II makes it clear that the appellant was not charged with possession with intent to distribute some debris in the van. He was charged with “possession with intent to distribute approximately 1,833 pounds of marijuana.” The debris in the van could not support a charge to “distribute” the 1,833 pounds of marijuana which was left on the ground. I consider, then, what kind of possession, if any, appellant had of the 1,833 pounds of marijuana. All of that marijuana consisted of bricks wrapped in heavy butcher paper and then placed in white nylon sugar bags. 1 I find it completely unlikely that the marijuana debris would have come from the marijuana so packaged with the packages put in nylon bags and loaded in the van in an operation that consumed such a short time before it was reversed. I find, therefore, that the *1375 government’s own conjectures are insufficient to establish such a far-fetched actual possession. 2 Appellant did not have actual possession or custody of the 1,833 pounds of marijuana at any time. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942), I find that the majority’s position is too frail to support a conviction on Count II even against a defense based only upon the insufficiency of the evidence.

The play within a play which concerned the ownership of the van and the relationship vel non between Ferguson and the Dabneys brought out testimony that was impossible to reconcile and undoubtedly proved that Ferguson or Mrs. Dabney was badly mistaken, to take a charitable view of this entire melange. But it helps very little in the solution of the basic problem as to the possession or constructive possession of appellant to support a conviction under the statute and the decided cases.

It is clear that possession under the statute may also be constructive possession rather than actual possession. 3

See also Williams v. United States, 290 F.2d 451 (9th Cir. 1961).

In United States v. Cepelis, 426 F.2d 134, 135 (9th Cir. 1970), cert, denied, 404 U.S. 846 , 92 S.Ct. 149 , 30 L.Ed.2d 83 (1971), we found constructive possession because the defendant actually directed a government agent posing as a narcotics purchaser to a cache (apparently located in a deserted area) containing the contraband. Similarly, in Brothers v. United States, 328 F.2d 151, 155-56 (9th Cir.), cert, denied, 377 U.S. 1001 , 84 S.Ct. 1934 , 12 L.Ed.2d 1050 (1964), and White v. United States, 315 F.2d 113, 114-15 (9th Cir.), cert, denied, 375 U.S. 821 , 84 S.Ct. 58 , 11 L.Ed.2d 55 (1963), we found constructive possession because the defendants directed federal agents or informers to the public areas (i. e., a sidewalk curb and a service station) where they had hidden the contraband. In the present ease, however, there was no such direct evidence of appellant’s control over the cache near the border.

Appellant testified that he drove down toward the border and was met before he reached the border by four Mexicans, one of whom spoke English. They led him to the place where the cache was located or nearby. Obviously he had no constructive possession before that time because he did not know where the marijuana was located or how to get to it. He could not have had any dominion or control over it. When he arrived at the place to which he was led, he stopped the van and stated that he would not haul the contraband back to his employers.

There was some evidence of a defective radiator and the need for repairs to it as a reason for returning without the load. There was no evidence to support this theory and I find it unpersuasive.

*1376 There was no other evidence as to possession. The four Mexicans who were apparently guarding the stash were not witnesses because they went over the fence and back to Mexico. The officers did not stop the appellant until the next morning. He was on his way back to the place from which he started. When stopped, the 1,833 pounds of marijuana were not in his van nor any part thereof. All that was discovered were some marijuana seeds and debris, some under the floor carpet and some at the door. Upon this thin foundation the government contends that the debris is part of the 1,833 pounds of marijuana. No explanation is made as to how debris could escape to the carpet and under it from blocks wrapped in heavy butcher paper and then packed in large sacks. Moreover, no witness took the stand to testify that he had examined the debris and found it to be a part of the 1,833 pounds. I find the evidence of the government entirely inadequate to prove guilt beyond a reasonable doubt and would therefore reverse.

. Agent George L. Miller testified:

. On cross-examination, Agent George H. Sar-geant testified:

. The government in submitting the case to the jury did not contend that there was actual possession, but argued only that there was constructive possession.