(dissenting).
I agree with the answers given by the majority to questions I and III. I too believe that appellant raised his objections to the scope of the District Court’s subpoena power in a timely fashion, and that the District Judge improperly addressed himself to the question whether appellant was in fact physically able to comply with the subpoena rather than the question whether he, in good faith, believed that his health would be seriously endangered by so complying. I would remand for further findings on this question- of fact. I cannot, however, join,,; with the majority in holding that the District Court was powerless under 28 U.S.C. § 1783 to issue a subpoena beyond the territorial limits of the United States for the purpose of securing the presence of the appellant as a witness before the grand jury, for I find their conclusion to be a tortured one.
My brothers go astray, I believe, when they resort to an ambiguous legislative history. This they do after determining that two words in section 1783, “criminal proceeding”, have no settled meaning. They err when they search for the “definition” of these words without the anterior appreciation of their context which can be derived from the face of the statute itself. Even the simplest of words may become ambiguous when viewed in isolation and out of context. Thus, as an illustration, “the word ‘bill’ may refer to an evidence of indebtedness, to currency, to a petition, to a person’s name, to the anatomy of a bird, a portion of a cap and a host of other objects * * * ” 2 Sutherland, Statutory Construction § 4505, at 319-20 (1943). So too with the phrase “criminal proceedings.” As the Supreme Court has noted, “The word ‘proceeding’ is not a technical one, and is aptly used by courts to designate an inquiry before a grand jury.” Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 50 L.Ed. 652 (1906).
Since the language of 28 U.S.C. § 1783 is not “technical”, it is necessary, before determining whether that language is ambiguous, to consider what the modern-day purpose of the statute must be. It seems clear beyond question that this section is designed to facilitate the compulsory disclosure of information so as best to further the enforcement of the criminal law. I am at a loss to see why this purpose is served any the less by testimony given upon compulsory attendance incident to a grand jury investigation than upon attendance at a criminal trial already under way. Indeed, the cause of justice might well be impeded under the strict construction of section 1783 adopted by the majority. Surely we should be hesitant to attribute to Congress an intention to promulgate a statute so designed that federal law-enforcement agencies can be frustrated by the mere withdrawal beyond our territorial limits of individuals whose testimony is, indispensable to the securing of a crim-' inal indictment.
*672The use of the phrase “criminal proceeding” in contexts quite similar to that before us lends further support to the •conclusion that section 1783 was meant to empower the federal courts to issue •extraterritorial subpoenas in aid of the .•grand jury as well as of an actual criminal trial. Thus, the Federal Rules of 'Criminal Procedure, by their own terms •expressly designed “to provide for the just determination of every criminal proceeding * * * to secure simplicity in' procedure, fairness in administration .and the elimination of unjustifiable expense and delay” (emphasis added)— purposes which in many respects parallel those of section 1783 — include rules governing proceedings before the grand .jury (Rule 6), thereby indicating that Congress, without hesitation, viewed the •grand jury as an integral element of the •criminal process. Moreover, Rule 17 of the Federal Rules of Criminal Procedure deals with the use of the subpoena in •criminal proceedings, and there is no doubt but that the court’s subpoena power under this rule was meant to extend not only to the criminal trial but to the ■grand jury proceeding as well. See the Revisers’ Notes to proposed Rule 20 (the •forerunner of the present Rule 17), 1943 Preliminary Draft of the Fed.R.Crim.P., .at 107. A comparison between the Federal Civil Rule dealing with the subpoena, Rule 45, and Federal Criminal Rule 17 •reveals the interesting fact that the language of the relevant subsections is identical in almost every respect, except that the former employs the term “action” •while the latter uses the word “proceeding”. It is fair to conclude that “proceeding” was purposefully selected in • order to render the criminal subpoena •■available at stages in the criminal process other than the trial. The specific •cross-reference to 28 U.S.C. § 1783 in ■Criminal Rule 17(e) (2) warrants the 'inference that the term “criminal pro- • ceedings” in both contexts was meant 'to be construed in pari materia.
It is thus undisputed that if appellant were within the geographical boundaries <of the United States, Rule 17(e) (1), he would be punishable for contempt for failure to comply with the court’s order, whether employed as an incident to a grand jury proceeding or a criminal trial. Indeed, there has apparently never been any special provision of statute or rule for the issuance of grand jury process ; grand jury process and court process have always been viewed as synonymous, cf. Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), well before the adoption of the Federal Rules. See Act of February 26, 1853, § 3,10 Stat. 169; Rev.Stat. § 877, 28 U.S.C. ^former section 655. If the subpoena power within national boundaries extends without distinction to use before the grand jury as well as in criminal trials, I should think that, if Congress intended to depart from this long-standing unity of process and to limit the extraterritorial subpoena power solely to the latter, it would have expressly so stated in the language of 28 U.S.C. §
Moreover, in addition to the Federal Rules, there is another area of the law, presenting policy considerations quite similar to those before us today, in which the grand jury proceeding has been deemed by the Supreme Court to be a criminal proceeding. In determining the propriety of immediate appeal from court orders issued prior to a criminal indictment, the Court recently held that “Presentations before a United States Commissioner * * * as well as before a grand jury * * * are parts of the federal prosecutorial system leading to a criminal trial. Orders granting or denying suppression in the wake of such proceedings are truly interlocutory, for the criminal trial is then fairly in train.” Di Bella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The reasons for so holding were earlier stated in detail in Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940), in language which might apply just as readily to the instant case:
“It is no less important to safeguard against undue interruption *673the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the ‘orderly progress’ of investigation should no more be encouraged in one case than in the other. That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue.”
I find the absence of a formal prosecutorial or adversarial proceeding to be just as irrelevant in this case as the Supreme Court found it to be in Cobble-dick, and for precisely the same reasons. See also, In re Grand Jury Investigation, 2d Cir., 318 F.2d 533.
I am impelled to conclude that the meaning of the phrase “criminal proceeding” in 28 U.S.C. § 1783 is thus , manifest, see United States v. Leff, Docket 143/309 (S.D.N.Y.1954); United States v. Stern, Docket M11-188 (S.D.N.Y.) appeal dismissed, 249 F.2d 720 (2d Cir. 1957), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1958), and that resort to the statutory history is not' only inappropriate, see United States v. Missouri Pac. R. R., 278 U.S. 269, 277, 49 S.Ct. 133, 73 L.Ed. 322 (1929); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917), but in this case is positively misleading;,; the majority pays tribute to congressional intention which is ambiguous and resort to which serves only to make clear language cloudy.1 It seems to me that the Federal Grand Jury, empowered to inquire only into the possible commission of crime, has been dealt a heavy blow by this court’s restricted and unwarranted holding. Those citizens who seek to avoid the searching eye of the grand jury need simply seek a safe haven beyond our territorial limits. To reach this result by the device of ignoring the commonly accepted meaning of statutory language is an act in which I can not join.
I would reverse and remand for further findings of fact.
. Perhaps one word about the legislative history of section 1783 is in order. The majority rests largely upon the words of the Reviser of title 28, to the effect that “Mere changes in phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised.” If the change in language from “trial of any criminal action” to “criminal proceeding” (the latter phrase being indisputably of broader connotation) was meant to be a “clear and simpler” means of limiting the subpoena power to criminal trials, then the ways of words are far ■ more perverse than I had ever imagined! If the present purport of section 1783 is as found by the majority, then the language of the former Walsh Act seems an ideal form of expression. The revision, therefore, can hardly be brushed aside as merely clarificatory.