Separate Statement on Rehearing En Banc
BURGER,Circuit Judge:
I am satisfied that a majority of the entire court would never have reached the result decided by the majority of the present panel but at the same time less than five judges1 believe the panel has laid down a new rule or doctrine of such scope and importance that it merits en banc review. Viewed in this light, the holding in Levin v. Katzenbach, 124 U.S.App.D.C. 158, 163, 363 F.2d 287, 292 (1966), is therefore confined to its own peculiar facts.
However I cannot refrain from pointing out, again, as I have before,2 that the record before us shows — conclusively and beyond dispute — that the information which the panel majority regards as “newly discovered evidence” which Judges Bazelon and Edgerton held the prosecution should have revealed to the defense was in fact literally in the hands of defense counsel as he sat at counsel table and conducted examination of witnesses in the original trial. This is shown in Judge McGowan’s opinion where he recites what Mr. Jacob Stein testified to at the remand hearing and also in the contents of the deposition which Stein utilized in this cross-examination.
It is not rationally possible to reconcile Mr. Stein’s testimony with the notion that he was not aware of the transaction unless we are to assume that Mr. Stein was asleep or otherwise unaware of what was going on around him. Since Mr. Stein is one of the most experienced and able trial lawyers of our bar, I, of course, reject the idea that he did not grasp the facts. Moreover, Mr. Stein’s appraisal of the situation was a sound one which any competent advocate would reasonably reach.
What is more important is that any tendency for anyone to read a “new rule” into this case is dispelled by what Mr. Justice Fortas said in Giles v. Maryland:
This is not to say that convictions ought to be reversed on the ground that information merely repetitious, cumulative, or embellishing of facts otherwise known to the defense or presented to the court, or without importance to the defense for purposes of the preparation of the case or for trial was not disclosed to defense counsel. It is not to say that the State has an obligation to communicate preliminary, challenged, or speculative information. But this is not that case 386 U.S. 66, 98, 87 S.Ct. 793, 809 (1967) (concurring opinion) (emphasis added).
The highest classification which can fairly be accorded to the “information” which Judges Bazelon and Edgerton said the prosecution should have furnished is that it is “speculative” in an ultimate degree.
Perhaps a “footnote” to this case may not be out of order in relation to the time this court has taken to resolve issues which lead to commanding a new trial:
February, 1959 — date of the alleged criminal acts;
November 1, 1962 — Appellant was indicted ;
May 10, 1963 — conviction by jury for grand larceny;
June 30, 1964 — the conviction was affirmed per Judges Washington and *1230Bastian (Bazelon dissenting), Levin v. United States, 119 U.S.App.D.C. 156, 338 F.2d 265 (1964);
February 1, 1965 — a petition for writ of certiorari was denied by the Supreme Court, 379 U.S. 999, 85 S.Ct. 719, 13 L.Ed.2d 701 (1965);
February 25, 1965 — Appellant filed a petition for a writ of habeas corpus which was denied by the District Court on June 11, 1965, 249 F.Supp. 225 (D.D.C.1965);
December 23, 1965 — this court reversed and remanded the case, Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966), and took the extraordinary step — one never taken before — of releasing him from prison while the habeas corpus claims were being reconsidered;
October 25, 1966 — the District Court resolved the remand question and the case returned here again, Levin v. Katzenbach, 262 F.Supp. 951 (D.C.C. 1966) ;
November 15, 1967 — this court again reversed ordering a new trial and I dissented, Levin v. Clark, 133 U.S.App.D.C. 12, 408 F.2d 1215 (November 15, 1967) .
The action of this court ordering a new trial was — and is — a gross miscarriage of justice which puts on the Government the burden of retrying a case on facts which occurred in February of 1959. Understandably the Government moved for rehearing en banc on January 10, 1968; this court’s action on that petition alone has added approximately one year’s delay.
The prosecution is now confronte'd with trying to reconstruct its case nearly 9 years after the event. The public should be pardoned if it loses confidence in the administration of criminal justice when it takes this long for the judicial process to dispose of a simple criminal case — and then only to order a new trial in circumstances where such trial will take place nearly a decade after the crime.
. During consideration of the Government's motion for rehearing en 6ano this court has had only 8 active judges.
. Levin v. Katzenbach, 124 U.S.App.D.C. 158, 163, 363 F.2d 287, 292 (1966) ; Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209, 1215, (Nov. 15, 1967).