(dissenting in part).
Our order entered October 23, 1957 granting the government’s petition for rehearing en banc, delineated the issue for reconsideration. But our opinion handed down July 16, 1957 (U. S. v. Gordon) has been rewritten and for that reason I must report my position on the total case. While joining in the second reversal and remandment, I disapprove-all that part of the opinion on rehearing *189discussing the “Handbook For Jurors” and through which all views expressed by the initial panel, of which I was a member, regarding that now troublesome pamphlet, have been deleted. It is singular to note how late in the day my brothers would unearth a flimsy archaic technicality as their warrant for glossing over what three judges of our Court originally thought was, an impingement “upon the right of a defendant to a fair and impartial trial as guaranteed by the Constitution and the law, as we think it does * * *” It must be remembered that Judge Major, speaking for a unanimous panel, also said in the first Gordon opinion: “The challenge to the venire, admittedly sufficient to preserve the question for review, was based upon the distribution to the jurors of a 14-page pamphlet * * * ” (Emphasis added.) If it is necessary to play with the common law concepts of the defense motion, despite the Government’s waiver and second thought plea, then I would invoke Rule 52(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., and notice the plain “errors or defects affecting substantial rights” stimulated by indoctrinating jurors by means of the Handbook.
The present divergence of views expressed by my brothers ought to be examined against the following passages authored by Judge Major as part of his appraisal of the Handbook:
“Defendant criticizes either as erroneous or misleading many of the statements contained in the handbook, a detailed discussion of which would unduly prolong this opinion. In our view, the most serious criticism of the pamphlet as a means of conveying information is that which is omitted rather than that which is stated. The pamphlet purports to inform the juror as to the procedure and rights of the parties in a civil case and, distinct therefrom, the procedure and rights of the parties in a criminal case. Referring to a civil case, a juror is informed that ‘Defendant calls witnesses and produces evidence, to disprove the plaintiff’s case and to prove the defendant’s claims.’ That is an inaccurate statement as applied to a civil case where a defendant is accorded the privilege but not required to produce evidence. The damaging effect which this misinformation is likely to produce is amplified by the statement, ‘The procedure in a criminal case in a United States District Court is very similar in many respects to that in a civil case except that the United States government always begins the case.’ And again, ‘What has been said in this handbook about the procedure in civil cases applies in a general way to criminal trials.’ We think this anemic distinction between a criminal and a civil case was likely to implant in the mind of a juror an erroneous impression, particularly so when the pamphlet makes no reference to the numerous safeguards provided by the Constitution and otherwise for the protection of a defendant in a criminal case. In no manner was a juror informed that a defendant charged with crime is entitled to the presumption of innocence and that the burden of proving his guilt beyond a reasonable doubt is upon the government. The pamphlet states, ‘The defendant has a right to present his evidence at the trial in open court before the judge and the petit jury.’ The juror was not informed that a defendant is not required to present any evidence, or that a defendant may, at his option, become a witness and that no inference is to be indulged against him for his failure so to do.
“The pamphlet states, ‘What sentence may be given the defendant must be of no concern to the jury. Sentencing is the function of the judge alone.’ We assume that is substantially a correct statement of law; in fact, the court in the instant case instructed the jury to that effect. However, following the last *190quotation the pamphlet proceeds: ‘A verdict of guilty does not necessarily mean that the defendant will receive a long sentence or that he will be required to serve any sentence at all. The judge may impose such sentence as appears to him to be just with the limits fixed by law or in a proper case he may suspend sentence and place the defendant on probation.’
“We think an instruction in the language of this last quotation would have constituted reversible error. It amounts to a plain invitation to the jury to return a verdict of guilty and leave the consequences to the court. The information thus possessed by a juror could form the basis for a potent argument to win over a doubtful or wavering juror. It could prejudice the right of a defendant to a fair trial on the issue of his guilt or innocence.
“While there are other matters contained in the handbook which are of doubtful propriety, we think what we have shown is sufficient for our present purpose.
“We are not impressed with the government’s argument that any misinformation imparted to the jury by means of the handbook is immaterial because, in any event, the jury was obliged to accept and apply the law as given to it by the court in its instructions. At any rate, it strikes us as a strange philosophy that-a juror after he has been called for service can be officially indoctrinated with misleading and inaccurate information on the premise that in the end he will by the court’s instructions be properly informed. Neither do we think there is any similarity between the situation where a citizen after he has been selected for jury service is furnished official information with judicial sanction, and a situation where a citizen receives information available to all from a nonofficial source. After a juror has been selected it is too late to tutor him so that he will become more competent.
“While, as noted, we think the distribution of the handbook was prejudicial to defendant, a more important objection is that its use constituted an impingement upon the jury system, as well as an invasion of the prerogatives of the legislative branch of the government charged with the responsibility of providing qualifications for jurors. This Congress has done. See Title 28 U.S.C.A. § 1861 et seq.
“ * * * jn instant situation the distribution of the handbook was a departure from the statutory scheme, and the question for consideration is its effect on the jury system rather than a showing of prejudice in an individual case. * *
“With reluctance we reach the conclusion that the challenge to the venire should have been sustained. We say with reluctance because of our recognition of the able and distinguished members of the Federal judiciary who authored the handbook, whose good purpose and laudable motive is not open to question. If its use impinges upon the right of a defendant to a fair and impartial trial as guaranteed by the Constitution and the law, as we think it does, it cannot be judicially sanctioned because of the noble purpose of its sponsors.”
One embarks on an utterly futile pursuit when searching for any Act of Congress authorizing publication and distribution of the Handbook by the Judicial Conference of the United States. Certainly the precatory words found in 28 U.S.C.A. § 331 are unavailing, yet on the cover of the book under the great seal of the United States appears the wording: “Handbook For Jurors serving in the United States District Courts —Published by Authorization of the Judicial Conference of the United States.” (Italics added.) Only recently, January 14, 1958, the Administrative Director of *191the United States Courts transmitted bills, since sent Congress, asking legislative action to empower the Judicial Conference “to study and recommend changes in and additions to the rules of practice and procedure in the federal courts.” I would think it pretty clear that at this moment the Conference cannot go beyond issuing recommendations and suggestions. See 28 U.S.C.A. § 331, as amended, 62 Stat. 902, 70 Stat. 497, 71 Stat. 476. I am well aware that some of my respected colleagues participated in the preparation of the Handbook, and yet, regretfully, I must express my views as a fellow judge. For we are living in times when signs, symbols and tokens are the order of the day and “hidden persuaders” exert desired responses among the unthinking and uneducated laymen. Jurors so ill-equipped that they need this Handbook will be prey to the errors in it. Judge Major saw the Handbook’s pitfalls and described its incomplete statements in his opinion, now emasculated.
All of this goes even deeper for I think any process utilized for educating, orientating, and informing jurors of their duties requires Congressional authorization and manifestation of policy. An accused has a constitutional right to trial by jury and this does not mean by jurors especially and incompletely conditioned for duty as such. The inescapable presence of the actual issue of the handbook brought those of us on the first panel to grips with the problem. Examination of the first brief filed for Gordon shows his point: “IV Distribution of the handbook impinged upon the defendant’s right to trial by jury. The challenge to the panel should have been sustained.” Indeed, when responding the Government, without mentioning the defense motion, proceeded to a bland explanation of the handbook’s admirable attributes. To now read out of Judge Major’s opinion all unpleasant passages bearing on this handbook by attributing to him the inconsistency of first labeling his own efforts as dicta while he calmly and diligently expanded such material, is undeserved. Implicit in all of this, of course, is the notion that we who joined him, followed him in that tangential excursion. Obviously the holding was not dicta, nor can an isolated sentence extirpated from context produce such conversion, for Judge Major simply treated with an alternative ground of decision. See e. g. Woods v. Interstate Realty Co., 1949, 337 U.S. 535, 537, 69 S.Ct. 1235, 93 L.Ed. 1524; State ex rel. Foster v. Naftalin, 1946, 246 Minn. 181, 74 N.W.2d 249, 266; State ex rel. Lemon v. Langlie, 1954, 45 Wash.2d 82, 273 P.2d 464, 468. The point was before the court in the beginning and found firm basis in the record. That the handbook material was not dicta is also substantiated by the manifest urgency, evident in the second opinion, for undercutting the defense motion. That motion had to be devitalized in order to hurdle the government’s failure to raise the point which led, not to dicta, but an alternate ground of decision.