Can a facilitator of a sale be held constructive possession of a drug?

"Possession," as used in 21 U.S.C.A. 174, even though the statute is a penal one, has not been construed with undue narrowness. The term has been interpreted by the courts to encompass power to control the disposition of drugs as well as mere physical custody. Hernandez v. United States, 300 F.2d 114 (9 Cir. 1962); United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961). Those who exercise dominion and control over narcotics are said to be in "possession" under 174, United States v. Malfi, 264 F.2d 147 (3 Cir. 1959), cert. denied, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959); United States v. Mills, 293 F.2d 609 (3 Cir. 1961), and physical custody by an agent may be attributed to the principal. United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961). We have said, moreover, in United States v. Hernandez, supra, that one having a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer as a matter of course may be held to have constructive possession.² But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug delivered and cannot be said to have possession of it. Ibid.; United States v. Santore, 290 F.2d 51, 76 (2 Cir. 1960); United States v. Moses, 220 F.2d 166 (3 Cir. 1955).