(dissenting) :
I dissent.
The panel should grant the government’s petition for rehearing to make clear that we adhere to the well established law of this Circuit concerning the admissibility of statements made by co-conspirators in furtherance of the conspiracy. Until now the generally accepted rule, not only in the Second Circuit but elsewhere, has been that where the judge is satisfied by independent evidence that the defendant was a party to a conspiracy, what another member said during the course of the conspiracy in order to carry it out is admissible against him. This time-honored rule is sound, sensible, and workable, and there is nothing in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), or in policy which should cause us to abandon or qualify it now.
The testimony at issue here concerned what Gonzalez said to Agent Ellin when they saw Puco emerge from his TV repair shop. Ellin had previously arranged with Gonzalez to purchase cocaine which Gonzalez was to secure through his contact, “Al.” For this purpose Ellin met Gonzalez and they drove to White Plains Road near Wood Avenue. Gonzalez pointed out the building where the delivery would be made at 8 o’clock. He had told Ellin that his connection owned a store in the area and used a nearby building for deliveries. At 8:00 P.M. Ellin and Gonzalez saw Puco leave his TV repair shop carrying a bag. Ellin testified that at this point Gonzalez said to him: “There’s my man now, the individual with the bag. He carries the merchandise in the bag.” Puco then entered the building which Gonzalez had earlier pointed out. Gonzalez followed Puco into the building and came out almost immediately thereafter with a brown paper bag which contained one-half kilo of cocaine.
What Gonzalez said to Ellin, about Puco was the statement of a co-conspirator made during the course of the conpiracy and in furtherance of it. As such it was admissible under the traditional co-conspirator hearsay exception which has been the law of this Circuit from time immemorial. Out of a host of cases, some before and some after Dutton v. Evans, supra, it suffices to cite United States v. Renda, 56 F.2d 601 (2d Cir. 1932); United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, sub nom. Lynch v. United States, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); and United States v. Projansky, 465 F.2d 123 (2d Cir. 1972). Nothing in the plurality opinion of Mr. Justice Stewart in Dutton v. Evans, supra, undermined this long standing doctrine. The statement at issue in Dutton was not made during the course of the conspiracy but after the conspiracy was at an end, while one of the conspirators was in prison. This evidence would not have been admissible in a federal prosecution, but was permitted in a Georgia state court murder trial under a Georgia rule which allowed proof of statements made during the concealment phase of the conspiracy.
Mr. Justice Stewart made it unmistakably clear that the Court was dealing only with the situation presented in the Georgia trial. Thus at 400 U.S. page 80, 91 S.Ct. page 215, he stated:
“Appellee does not challenge and we do not question the validity of the *1109eoconspirator exception applied in the federal courts” ,
and he went on, at page 81, 91 S.Ct. at page 215 to define that exception as being one “that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators ... if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than the concealment of the criminal enterprise.” If the Court had meant to upset a doctrine that had prevailed in the federal courts for years with specific Supreme Court approval, e. g., Wong Sun v. United States, 371 U.S. 471, 490-91, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), it would not have left the matter to inference.
Despite the fact that the statement admitted against Evans did not fall within the well-recognized federal hearsay exception, the Court proceeded to analyze the Georgia rule in the context of the Sixth Amendment. Finding that the statement was not “crucial” or “devastating” and that there were sufficient “indicia of reliability,” the Court concluded that the use of the evidence did not violate the Sixth Amendment and that it was therefore admissible. Thus, nothing in Dutton v. Evans, supra, cast doubt on the settled federal rule.
I see no reason for casting doubt upon the rule regarding the admission of co-conspirator’s statements. Before the declaration of a co-conspirator can be admitted, the judge must be satisfied “by a fair preponderance of the evidence independent of the hearsay utterances,” see United States v. Geaney, supra, 417 F.2d at 1120, that the conspiracy existed and that the defendant was a member; and the statement itself must have been made in the course of the conspiracy and in furtherance of it. These requirements protect against the use of unreliable evidence, since the circumstances in which the statement is made— prior to detection and for the purpose of implementing the illegal scheme of which the defendant has been shown to be a part — tend to assure the reliability of the declarant and the accuracy of the statement. To the contrary, the statements received by the Georgia court in Dutton were made after the conspiracy had ended and were therefore subject to a host of reliability problems, including the possibility of improper motive or bias on the part of the declarant.
As regards statements within the traditional co-conspirator rule, it is of no moment in determining admissibility that these may be “crucial” or “devastating.” Prejudice and relevance are inseparable in such cases, and if the statement is made during the course and in furtherance of the conspiracy, its obvious relevance must carry the day.
Whenever a criminal offense has been carried out by more than one person, and this is charged in a large percentage of federal criminal prosecutions, statements made by those who are the leaders, or by their confederates, in an effort to carry it out, are necessarily the heart of the offense. When taken together with the other evidence in the ease, these statements, without any further proof, necessarily constitute reliable evidence of the kind which judge and jury are well equipped to evaluate. There is no logical reason to impede unnecessarily the use of this evidence as the panel opinion seeks to do.
It may be that panels of the Third and Ninth Circuits have regarded Dutton as a justification for changing the law in their respective circuits, see United States v. Weber, 437 F.2d 327, 335-40 (3rd Cir. 1970) cert. denied 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). and United States v. Adams, 446 F.2d 681 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971), although in both cases, as here, the decision was in the government’s favor and it was thus precluded from seeking certiorari. But a contrary result was reached by the First Circuit in United States v. Clayton, 450 F.2d 16 (1st Cir. 1971), where the defendant’s petition for certiorari was denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). I think my *1110colleagues are unjustified in unsettling the law of this Circuit without positive en banc approval of a majority of the active judges of the Circuit. The fact that only Chief Judge Friendly and Judges Hays and Timbers voted to en banc this case by no means implies that a majority of the active judges approve the panel opinion; I know from experience how difficult it is to persuade a majority of the active judges of a busy court to agree to en banc consideration where they believe the panel has reached the right result simply because they disagree with the opinion. In my view the panel committed serious error in an opinion, which should now be corrected.
I note that the panel has since filed a supplemental opinion on petition for rehearing. Although the panel has retreated somewhat from its original position, it has not gone nearly far enough. While the deletion of the “crucial” or “devastating” test is most welcome — although hard to understand if Dutton were really applicable — the panel still takes the position that the district judge must determine if a declaration by one of the co-conspirators in furtherance of the conspiracy sought to be admitted against a defendant presents “sufficient indica of reliability” — without offering any guidance as to what indicia will suffice. The supplemental opinion states that the determination that a declaration is in furtherance of the conspiracy will generally supply the needed “indicia of reliability.” However, since the majority would give the defendant a chance to question this, it seems clear that, as a practical matter, the necessity of ascertaining whether statements made by co-conspirators during the course of the conspiracy are “reliable” will needlessly delay the trial of many federal cases. If trial judges should follow the lead of the dicta of the panel in this matter — and I hope they will not — they must either hold a pre-trial hearing, or, more likely suspend the taking of evidence before the jury in order to go into this collateral question.1 It now takes at least twice as long to try the average criminal case as it did ten years ago due in large part to the fact that before or during trial, hearings may now be required to determine the legality and admissibility of a search and seizure, a confession, or an identification. To this list my panel colleagues now would add a further test for statements by co-conspirators. Rather than further complicating and lengthening criminal conspiracy, trials in this manner, I submit there is every reason for keeping the trial procedures as simple as possible, and for adhering to long accepted principles unless and until the Supreme Court should clearly instruct otherwise.
For these reasons, I would grant the government’s motion for rehearing. I would strike from the panel opinion the seven pages of discussion under the section marked “II,” pages 1102 to 1105 and substitute in its place the following:
“The objection to Ellin’s testimony regarding what Gonzalez said to him about Puco when they saw Puco emerge from his TV repair shop carrying a bag and then enter the building next door is entirely without merit. Gonzalez’s statement was the statement of a conspirator made in the course of the conspiracy to further the success of the conspiracy. Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] is not in point. That case did not involve a statement made in the course of the conspiracy and in furtherance of it. In Dutton the Georgia state court had admitted a statement made by a co-conspirator after he had been committed to prison and arraigned on a charge of committing the same murders with which the defendant was charged. Thus the need for showing additional characteritics of reliability which Mr. Justice Stewart’s opinion considered needed to *1111save the conviction in that case are not required here.”
ORDER DENYING REHEARING AND REHEARING EN BANC.
A petition for a rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the appellee, a poll of the judges in regular active service having been taken at the request of such a judge, and there being no majority in favor thereof,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is denied.
Chief Judge FRIENDLY dissents in an opinion in which Circuit Judge HAYS and TIMBERS concur.
Circuit Judge MANSFIELD also dissents.
. If the judge should rule erroneously against the government on this issue, he may well produce an unjustified acquittal, from which the prosecution has no recourse.