Statement of Circuit Judge Danaher As To Why He Votes To Grant Rehearing En Banc
DANAHER, Circuit Judge:Here the Government has asked for en banc consideration of the January 23, 1967 opinion of a division of this court. We know, as a practical fact, that the Solicitor General, deeming the issue of importance, must have approved the Government’s petition. He can not be unaware that there is now and that for the last few years there has been substantial disagreement among the judges of this court on the matter of “discovery” in preliminary hearings. In this area as in yet others where close questions have arisen with resulting controversy, resolution of the conflicting viewpoints of the judges of this court should be attempted.
Sometimes only two judges, again as in the instant case, three, undertake to promulgate as law their own particular conclusions no matter what other judges of the court may take to be the proper rule. Guided by pronouncements of the Supreme Court and by the views particularly of other United States Courts of Appeals in analogous situations, some of the non-sitting judges, perhaps not unreasonably, think they should have the benefit of oral argument respecting novel, significant and important positions when urged upon the court. If for example, in the instant case, the three sitting judges are convinced of the rectitude of their position that “discovery” should by command of the court be made available at preliminary hearings, I would have supposed they should be the first to seek majority concurrence. Of course I realize at once that by the mere exercise of power and by the denial of opportunity to the non-sitting judges to learn the nature and the scope and the extent of a particular ruling, compliance with the literal language of 28 U.S.C. § 46(c) has been had. Obviously, unless a majority of the Circuit Judges in regular active service shall so vote, the non-sitting judges will not have heard the arguments of the Government nor will they have had an opportunity, as at an oral presentation, for appropriate questioning to ascertain the impact of the rule pronounced by the sitting division in a given case.
The President’s Commission on Crime in the District of Columbia recently observed in its report released December 15, 1966, pages 324, 325:
“[T]he Commission is concerned by the widespread community feeling that the outcome in a particular case too often depends on the choice of judges.
We believe that the court should be sensitive to the effects of judicial dissension on the public, those convicted of crime, and attorneys who argue before the court. The nature of the court’s peculiar jurisdiction in the District makes an appearance of uniformity more critical than in courts concerned exclusively with Federal crimes. Increased use of the en banc procedure may contribute to this salutary result.” 1
The Commission went on to point out
“that appellate rulings have a vital impact on the total law enforcement process, both in terms of the substance of particular judicial restrictions and the certainty with which they can be relied upon by police, prosecutors and trial courts. In deciding particular cases, the court bears the heavy responsibility for weighing these consid*567erations in an effort to reach a result fair to the community as well as to the defendant.”
No amount of sophistry can obscure the ultimate fact that the sitting division had hoped to engraft upon our courts their own theory of discovery, notwithstanding that the Rules promulgated by the Supreme Court and approved by Congress, make no provision for any such result. Suppose a single eyewitness to a murder shall at preliminary hearing identify the accused as the culprit, may not the magistrate find probable cause to hold him? Must every other of many witnesses likewise be produced? There can be no question that in furtherance of the concept of a search for truth, many learned judges and commentators have sought an extension of pretrial discovery in criminal cases. 8 Moore’s Federal Practice-Cipes ft 1.07 Committee Note [2] (1966), relating to proposed amendments to Rule 16, points out that here is “a complex and controversial issue.” Cited are various source references and cases which have considered the problem. But the fact remains that the Federal Rules of Criminal Procedure, despite much urging, have never provided for the type of pretrial discovery which the sitting division would here enjoin upon the District Court and the United States Commissioner, especially since an indictment had been returned.
It has long been settled law, both in this Circuit and elsewhere that there is not even a constitutional right to a preliminary hearing prior to indictment or prior to trial. Clarke v. Huff, 73 App.D.C. 351, 119 F.2d 204 (1941). Jurists like Chief Justice Vinson and Associate Justice Rutledge, when members of this court, and the late Chief Judges Groner and Stephens (to mention only noted Chief Judges now deceased) never had the slightest doubt that Goldsby v. United States, 160 U.S. 70, 73, 16 S.Ct. 216, 218, 40 L.Ed. 343 (1895) had stated the law when the Court said:
“The contention at bar that because there had been no preliminary examination of the accused, he was thereby deprived of his constitutional guaranty to be confronted by the witnesses, by mere statement demonstrates its error.”
The rights of the accused, said the Supreme Court, were to be determined and protected at trial. Ex Parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283 (1932). Mindful, obviously, that such was the law, the Supreme Court has recognized that probable cause for the detention of an accused to stand trial might be established by a valid indictment by a grand jury. So wrote Mr. Justice Black in Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956), and so thought Mr. Justice Holmes writing for the Court in Holt v. United States, 218 U.S. 245, 247, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). And see Jaben v. United States, 381 U.S. 214, 220, 85 S.Ct. 1365, 14 L.Ed. 2d 345 (1965); and Mr. Justice Rutledge writing for this court in Jordon v. Bondy, 72 App.D.C. 360, 114 F.2d 599 (1940). He observed that it had been repeatedly held that the prosecution is under no obligation to call all witnesses subpoenaed by the Government.
If references to such cases and their holdings may suggest a lack of uniformity either in approach or in the decisional process, I suggest that the exhortation of the President’s Commission, supra, should here be regarded. I vote for rehearing en banc that those of us who have not heard the Government’s statement of its position may the more certainly appraise the issue. If mine is not a reasonable position with reference to the exercise of power by this court, it may not be taken amiss if I suggest that Congress in its consideration of problems of law enforcement in the District of Columbia make provision that the return of a valid indictment will, ipso facto, establish probable cause to hold an accused for trial irrespective of any decision or rule of court.
. And see my discussion re en banc hearings in Cafeteria & Restaurant Wkrs. U., Local 473 v. McElroy, 109 U.S.App.D.C. 39, 51, 55 et seq., 284 F.2d 173, 185, 189 et seq. (1960), 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Hansford v. United States, 124 U.S.App.D.C. 387, 398, 365 F.2d 920, 931 (1966).