(concurring).
I agree with the decision and opinion herein, but believe it desirable to point out what seems to me an even more basic failure of proof than the two so fully delineated by Chief Judge Lumbard. Perhaps the most curious feature of this strange case is the fact that after all these years there is not a shred of legal evidence that the Apalachin gathering was illegal or even improper in either purpose or fact. For thirteen years prior to the meeting as a modern Inspector Javert State Trooper Croswell pursued Barbara, Sr., in all ways possible (including tapping of his telephone) and got no evidence of illegality, although he did get wind of the meeting if not of its purpose. After it occurred on November 14, 1957, there were no less than 133 examinations of those present (as the government reports in its brief) by various state and federal officials, including 27 instances before federal grand juries and 29 by the FBI. The results were fruitless, as is highlighted by the government’s frank admission at the outset of the trial that it would not be able to show what was going on at the meeting. The only suggestion, outside of an innuendo not here provable that the defendants were evil,1 is the bizarre nature of the gathering itself. But that gets us nowhere; common experience does not suggest that plotting to commit crime *420is done in convention assembled, or even the converse, also suggested here, namely, plotting to desist from crime. It must be taken, therefore, that for aught we can know the gathering was innocent.
On this basis the defendants would appear to be under no duty to explain their actions, and this the prosecution freely admits, saying in its brief that “the government has never taken the position that the defendants were guilty of wrongdoing by merely failing to reveal what occurred at the Apalachin meeting.” This being admitted it is difficult to see how a defendant commits a wrong if he endeavors to preserve his privacy and individual freedom by misleading answers not perjurious in character.2 True, there might arise circumstances where a defendant’s concealment would raise questions of propriety, as where he was concealing an actual crime. But under the circumstances here present, where no crime is indicated, some proof of illegality in the actions concealed would seem an essential to any conviction on either a substantive or a conspiracy count. For otherwise it would seem that a citizen’s privacy is subject to invasion at any time on the mere suspicion of any police officer, federal, state, or local, and the presumption of innocence has no potency at the police level.3
From its inception this case was given unusual and disturbing publicity in newspapers, journals, and magazines; and this unfortunate feature has persisted up to this date, with even the prosecutors indulging in highly colored accounts while the case has been pending on appeal. Much of this has been in terms of a crisis in law administration seemingly demonstrated by an unexplained gathering of arch criminals and of a general satisfaction that somehow they have now met their just deserts of long imprisonment. This is vastly unfortunate; not only does it go beyond the judicial record necessary for its support, but it suggests that the administration of the criminal law is in such dire straits that crash methods have become a necessity. But it seems we should have known better, and a prosecution framed on such a doubtful basis should never have been initiated or allowed to proceed so far. For in America we still respect the dignity of the individual, and even an unsavory character is not to be imprisoned except on definite proof of specific crime. And nothing in present criminal law administration suggests or justifies sharp relaxation of traditional standards.
Chief Judge LUMBARD and Judge FRIENDLY authorize me to state that they agree with the writer that the publication by former special prosecutors of accounts and comments regarding this case and the appellants, while this appeal was pending, was improper.
. As obviously not within the present indictment. In a state charge of contempt against the two Valentis, alleged coconspirators here, for refusing to testify before a state commission, the court described the Apalachin gathering as “an all-male meeting, in a rural private home, toith am, unusually large attendance of persons with criminal records.” (Emphasis added.) People ex rel. Valenti v. McCloskey, 8 A.D.2d 74, 185 N.Y.S.2d 952, 964, 965, affirmed as to one defendant and reversed as to the other by a sharply divided court, 6 N.Y.2d 390, 189 N.Y.S.2d 898, 160 N.E.2d 647. But the fact there stressed was not before the present jury, except in most indirect and limited instances.
. The absence of prosecutions for perjury — noted in Chief Judge Lumbard’s opinion — is striking. As lie further notes, there have been state attempts to produce evidence by the contempt process, but -without substantial results. After the release of the one Valenti, as noted in note 1 supra, the other secured absolution by testifying in so contrived a way as — in the words of the dissenting judges — “to leave the Commission of Investigation without any useful or material information not already known concerning the so-called Apalachin meeting.” People ex rel. Valenti v. Mc-Closkey, 8 N.Y.2d 959, 204 N.Y.S.2d 188, 189, 168 N.E.2d 853, affirming People of the State of New York ex rel. Valenti v. Sheriff of City of New York, 10 A.D. 2d 684, 197 N.Y.S.2d 742. The government’s concession is therefore justified on practical as well as legal grounds.
. Thus the detention, transportation to the distant Vestal police station, and search there of most of the defendants on the afternoon of November 14, 1957, seems highly dubious, and the admission of their statements in evidence of doubtful validity. So the court’s ruling supporting admissibility in United States v. Bonanno, D.C.S.D.N.Y., 180 F.Supp. 71, would seem at variance with Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, and the rationale there set forth. (This is one of several additional problems which is not explored in detail because of the reversal here ordered; others include the venue as laid in the Southern District, and not the Western, where Apalachin is located, the sufficiency of the indictment, the scope of the charge, and the possibility of prejudice from the pre-trial publicity.)