concurring:
We heard the instant case en banc on the sufficiency of the indictment issue to see if we could obtain a majority on issues similar, but not identical, to the issue on which we split 5-5 in United States v. Rivera, 874 F.2d 754 (10th Cir.1989) (en banc). As one of the five votes that found the CCE indictment in Rivera insufficient, I take this opportunity to explain why I join others to produce a majority upholding the CCE indictment how before us.
Generally indictments tracking the words of the underlying criminal statute are valid. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). The other circuits cited in Judge Baldock’s opinion have applied that rule to uphold CCE indictments, often with little or no analytical discussion. The indictment before us does state the elements of the CCE offense — the contested element here being participation in “a continuing series of violations of this title [II] or title III.” 21 U.S.C. § 848 (before 1986 amendment).
Charging a CCE violation only in the language of the statute, however, presents two problems not usually present in the charging of other crimes. One is how can the court know that enough violations were presented to the grand jury to satisfy the “continuing series” element, permitting the reviewing court to monitor the defendant’s Fifth Amendment right to an “indictment of a Grand Jury.” In Rivera only two violations were mentioned in all counts of the indictment and no proof was offered that the grand jury had considered and found evidence of a third violation. Thus, I was not able to satisfy myself that the grand jury indeed identified the defendant with three violations, the minimum the courts have required for a “continuing series of violations,” under § 848. See United States v. Apodaca, 843 F.2d 421, 427 (10th Cir.), cert. denied, — U.S. -, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).
In the case before us, I am sure that the grand jury did identify defendants Teafatil-ler and Staggs with at least three violations, because it so charged them in other counts returned in the same indictment containing the CCE count. Thus, my concern in Rivera, that the grand jury had not performed its Fifth Amendment function, is satisfied here.
Relying upon Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), the dissent would find a Fifth Amendment “indictment of a Grand Jury” violation unless the exact offenses presented to the grand jury and used to convict are set out in the indictment. They rely upon the words of the Supreme Court in Russell that a defendant should not “be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.” Id. at 770, 82 S.Ct. at 1050 (emphasis added). I think the dissenters take the words of Russell too literally. Nowhere in the criminal law do we require all evidence presented at trial to be presented to the grand jury; it is custom and practice to present just enough to get the indictment. In a bank robbery case one teller witness may give testimony to the grand jury, but a different or additional teller may testify at trial. Facts and witnesses uncovered after the indictment, and therefore not presented to the grand jury, may be presented at trial, so long as the offense proved is the same.
Is proof that defendant committed an additional or different violation of Title II or III than those presented to the grand jury the same as using a teller who did not appear before the grand jury to identify a bank robber at trial? The dissenters would answer no, because they view the precise violations presented to the grand jury, which they would require to be set out in the CCE count, to be “elements” of the crime. To me the element is “a continuing series of violations,” and the specific violations the prosecutor presents are merely the evidence used to prove that element. The dissenters’ reasoning would require that the five individuals with whom the defendant allegedly has acted in concert, see 21 U.S.C. § 848(c)(2), be identified by name in the indictment: their identities would be “elements” of the CCE crime. Because I believe the three violations are evidence of the CCE element, I believe it is *1536permissible to prove any three violations at trial. It is little different from utilizing eyewitness B instead of eyewitness A, who went before the grand jury, to prove a bank robbery.
This raises, however, the second problem in CCE indictments not present in many other federal criminal indictments. That is the defendant’s Sixth Amendment right “to be informed of the nature and cause of the accusation,” sufficiently to prepare a defense: the notice problem.1
Unlike civil cases, in which full discovery and disclosure is the norm, the federal criminal law contemplates only partial disclosure of the government’s case. See Fed. R.Crim.P. 16, Conf.Comm.Notes, H.R.Rep. No. 94-414 (In rejecting an amendment to Rule 16, committee stated that “[a] majority of the [House and Senate] Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial.”). Thus, the courts must perform a balancing act between requiring enough disclosure to fairly treat the defendant and enable him to prepare a defense and preserving the government’s right to shield witnesses and evidence not required to be disclosed by the criminal procedure rules. Important in this balance is the bill of particulars. See Fed. R.Crim.P. 7(f). The availability of the bill of particulars, I believe, provides adequate protection for the defendant’s Sixth Amendment rights by giving him the means in a CCE case like that at bar to learn the specific violations the government intends to use at trial. See United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953); Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680 (1942). Use of the bill of particulars is more desirable than requiring the government to reconvene the grand jury for a superceding indictment should the prosecutor want to present some different evidence on the “continuing series of violations” element than was originally presented. Although we review the grant or denial of a bill of particulars by an abuse of discretion standard, e.g., United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988), the trial court’s discretion would be abused, in my view, if the district court refused to grant a bill requiring the government to reveal the violations it intended to prove to establish the “continuing series” element.
In the instant case I see no constitutional violations in this indictment, and, therefore, I concur in Judge Baldock’s opinion.
. I agree with the majority opinion that the indictment's CCE count in the instant case has sufficient time, place and offense specificity that, with the record, the defendants can avoid any double jeopardy problems.