*568Statement of Circuit Judges Burger and Tamm On Votes To Grant Rehearing En Banc
BURGER, Circuit Judge, (with whom TAMM, Circuit Judge joins):Despite the fact that a Grand Jury has returned an indictment, the opinion of the sitting division which four judges voted to review1 directs the District Court to order another preliminary hearing before the accused is tried. The opinion of the sitting division does not tell us what can be accomplished by such a remand or whether a United States Commissioner can conduct some sort of “appellate” review of the action of a Grand Jury. The sitting division’s opinion, therefore, presents a very important and recurring question as to the relationship between a preliminary hearing and an indictment; it intensifies the confusion surrounding the role of the preliminary hearing which began with a misconception of what the Blue opinion really meant. For these reasons we voted to grant the government’s petition for rehearing en banc.
Judges McGowan and Leventhal seem to say that if the case were heard by the full court it might be decided on a narrow factual basis outside the framework of issues posed by the Government and that such a narrow aspect does not warrant en banc consideration. This overlooks the fact that we can, as we often do in granting an en banc hearing, define the issues to be considered. The question presented by the Government’s petition is not what disposition may be made of this particular case if it is heard en banc; rather the question before us now is whether the sitting division’s opinion will create confusion in the day-to-day administration of justice if it is left standing without an examination by the full Court. It may be that the Court en banc would decide the case on the narrow factual element referred to, although we seriously doubt it, but the failure of the sitting division to decide the case on that ground should not insulate from examination by the rest of us of what six members of the Court — Judges McGowan and Leventhal included — seem to consider a confusing holding in an important area of the law.
Judges McGowan and Leventhal also suggest, if we read them correctly, that while it is difficult to draw a line for ordering a “supplemental” preliminary hearing where the petitioner has been diligent, it is both difficult and unsound to do so where he was not diligent. This anticipates what an en banc court would consider, i. e., whether a preliminary hearing can have any purpose or function after an indictment.2
*569Judges McGowan and Leventhal emphasize that a preliminary hearing’s purpose is the determination of probable cause for detention and that, while “discovery” may sometimes be a consequence of a preliminary hearing, it is not the purpose but a by-product. This statement assumes special significance coming from Judge McGowan as the author of Blue. We would have thought it more orderly and efficient judicial administration if Judges McGowan and Leventhal would have permitted the four judges who want an en banc hearing to participate in the usual way in any pronouncement on this important question — after full hearing. However, since we are not to have a full-scale hearing we are left to indicating our general acceptance of the long standing precedents on this subject, and to that extent we agree with Judges McGowan and Leventhal that a preliminary hearing is an examination to determine probable cause for continued detention.
It should be clear from all that has been said by or on behalf of the six non-sitting judges, that a majority of the Court does not agree with the three judges of the sitting division in their effort to re-write the procedure authorized by Congress for a preliminary hearing so as to convert it into a discovery mechanism. We have no doubt that District Judges and others who deal with these hearings will take an accurate “head count.”
We join in expressing our agreement with the statements of Judges Danaher and Robinson.
. The Department of Justice so rarely asks us to rehear a case en banc that we ought to give great weight to those few requests it makes, as the Supreme Court does to petitions for a writ of certiorari authorized by the Solicitor General.
. Judges McGowan and Leventhal express a desire for a reserved power of “sanction” against prosecutors and United States Commissioners but it is interesting to note that the sitting division did not order the hearing as a sanction. Judges McGowan and Leventhal pose, in their “sanction” point, a very important question which has not been briefed or argued and we are not in a position to pass on it. We note, however, that they reserve this “sanction” power on the basis of a statement attributed to a Senator that “in at least one important district” (unnamed) the Government is receiving continuances of preliminary hearings until the Grand Jury acts and mootness can be claimed.
In this case, of course, Appellant had a preliminary hearing long before he was indicted. Thus Judges McGowan and Leventhal are talking about “sanctions” simply on the basis of a statement in Congress about the Government’s practice in one of the 90 United States Districts and without regard to the facts of this case or inquiry into whether there is any such practice in this district. If, on evidence, we should ever find that a United States Commissioner is acting improperly this Court and the District Court can summarily direct him to alter his practices. We have no evidence whatever on this score.
If we assume the extraordinarily remote possibility that the United States *569Commissioner after hearing the alleged “critical witnesses” concludes no probable cause is shown, would anyone suggest he could reverse the Grand Jury! The heart of the “sanction” therefore is that the Commissioner and the United States Attorney will have been made to “stand in the corner” because subpoenas were not issued. We ought not suggest the use of judicial power so casually and with so little purpose.
In any event, our colleagues’ discussion of “sanctions” is irrelevant to the en banc petition.