FRIENDLY, Circuit Judge.
Mack Adams was convicted before Judge Bonsal and a jury in the District Court for the Southern District of New York for selling cocaine to a narcotics agent on June 16, 21, and 28, 1965, without a written order form in violation of 26 U.S.C. § 4705(a). Although the agents' testimony abundantly supported the verdict despite the innocent version of his meetings to which Adams testified, we are constrained to reverse because of the judge's allowing the jury to see incriminating writings by the agent making the purchase which had not been received in evidence.
At the end of the agent's testimony the Government offered three lock-seal envelopes in which he had delivered the purchased cocaine to the examining chemist. The front of the envelope contained a printed form filled out by the agent in handwriting;
After the jury had been deliberating for some time, the judge announced to counsel he had received the following message:
Defense counsel recalled his objection to the writings and the receipt of the envelopes in evidence "with that writing
The Government has commendably called our attention to United States v. Ware, 247 F.2d 698 (7 Cir. 1957), and Sanchez v. United States, 293 F.2d 260 (8 Cir. 1961), in which the courts reversed convictions where similar envelopes were received in evidence over objection and were sent to the jury room. The holdings were that the writings were not admissible under the Business Records Act, 28 U.S.C. § 1732, or the Governments Records Act, 28 U.S.C. § 1733, and that even though they were merely cumulative of the agent's testimony, their receipt and particularly their transmission to the jury room were prejudicial since "[t]he jury thus had before it a neat condensation of the government's whole case against the defendant." 247 F.2d at 700.
We accept the Government's concession that the records did not qualify under 28 U.S.C. §§ 1732 or 1733 without foreclosing the issue if it should arise again. But we reject its attempt to distinguish the Ware and Sanchez decisions for failing to "consider the proper supporting ground — the identification of the narcotic exhibits and the proof of undisturbed custody." This confuses relevancy and competency. The writings were indeed relevant to the narrower issue now suggested as well as the broader one to which the jury doubtless applied them. But if they did not qualify as business or government records, the sole basis for receiving them would have been as past recollection recorded.
We comment briefly on Adams' two other claims of error since the points may arise on a new trial. The agent to whom Adams allegedly sold the cocaine testified about conversations concerning a possible transaction in heroin that never transpired. The Government claims this was proper within such recent decisions as United States v. Bozza, 365 F.2d 206, 214 (2 Cir. 1966) and United States v. Deaton, 381 F.2d 114 (2 Cir. 1967), since it gave the whole story of the agent's dealings with Adams. While these decisions rejected a wooden application of the "other crimes" rule, the Government should not press them too far. Far from being an essential part of the story of his dealings with Adams for cocaine, the agent's testimony as to the proposed heroin transaction had to be specially elicited from him after his recollection of the initial conversation had been temporarily exhausted; moreover there is a rather clear distinction between transactions that occurred, as in Bozza and Deaton, and one that did not. The evidential value of the latter is principally in showing the accused's state of mind; proof of this might better be deferred until the defense case makes it necessary to develop evidence of other crimes for that purpose. See United States v. Byrd, 352 F.2d 570, 575 (2 Cir. 1965). The other point concerns the Government's alleged failure to exert more effort to assist in locating the informer, whose name and local address defense counsel knew. Although we surely would not have reversed on this ground since the informer was present only at the first of several meetings between the agent and Adams, we recommend that the Government make a reasonable examination of its recent files and utilize its contacts with state and local law enforcement officers for any data that might reveal the informer's present whereabouts.
The judgment is reversed and a new trial ordered.