Separate State re Rehearing En Banc
DANAHER,Circuit Judge:
I had no idea of writing anything in this case despite my very real view that the Government should have been permitted to press its contentions before, and to explain its position to, the full court.
However, as various of my colleagues now have submitted separate statements in exposition of their denial of rehearing en banc, one, in particular, would impart a gloss respecting “discovery” which impels my comment. I would not have silence taken as acquiescence in this area.
In the first place, writing separately in Ross v. Sirica,1I observed:
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.
When Ross v. Sirica was cited to the Court of Appeals in the Second Circuit in Sciortino v. Zampano,2 Judge Hays pointed out that the views of our court had not found favor in any other circuit. Indeed, he continued, the reasoning on'which the Ross panel had relied even lacked the support of a majority of the judges of this Circuit. Judge Hays with appropriate citations quite correctly observed, as I had noted in Ross, that the subject of discovery in criminal cases had received a great deal of attention at the hands of those responsible for the original preparation of the Federal Rules and their recent amendment. Only a very limited discovery is available, and the principles agreed upon by the rule makers fall far short of the sweeping enlargement here asserted by one of our colleagues.
Again, and respecting another aspect of discovery, the Supreme Court in Brady v: Maryland 3 has stated its own holding thus:
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Emphasis added.) 4
*1229This is not to say.that the rule makers may not some day go the full way seemingly desired by some of my colleagues. I say only that the Supreme Court and the Advisory Committee have not yet done so.5
. 127 U.S.App.D.C. 10 at 19-20, 380 F.2d 557 at 566-567 (1967).
. 385 F.2d 132, 134 (1967).
. 373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963).
. The “focus” mentioned by my colleague seems to have omitted “upon request.”
One Justice speaking only for himself in Giles v. Maryland, 386 U.S. 66, 102, 87 S.Ct. 793, 811, 17 L.Ed.2d 737 (1967), noted that the Court had “included in its statement of the controlling principle” in Brady v. Maryland a reference to counsel’s request but added that he saw no reason to make the result turn upon a “request.” Four Justices deemed the limitations of the Rules to fall far short of the standard urged by their colleague. 386 U.S. at 116-119, 87 S.Ct. 793.
. Judges McGowan and Leventhal noted as much in Ross v. Sirica, supra note 1, 127 U.S.App.D.C. at 17, 380 F.2d at 562.