(dissenting) :
FRIENDLY, Chief Judge, with whom HAYS and TIMBERS, Circuit Judges, join, dissenting from the denial of reconideration en banc:
Like former Chief Judge Lumbard, I find it impossible to understand how two members of a panel can modify a rule of evidence applied by this Circuit in scores of decisions, approved by all the commentators, see, e.g., 4 Wigmore, Evidence § 1079 (Chadboum Rev. 1972); McCormick, Evidence § 267, at 645-46 (Cleary ed. 1972); ALI, Model Code of Evidence, Rule 508(b); Commissioners’ Uniform Rules of Evidence 63(9) (b); Proposed Federal Rules of Evidence, Rule 801(d)(2), recognized by the Supreme Court in cases as old as United States v. Gooding, 12 Wheat. (25 U.S.) 460, 469-470, 6 L.Ed. 693 (1827), and as recent as Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and expressly preserved by the very decision, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), now claimed to have qualified it.
The expression by the panel majority, unreviewable at the instance of the government since the decision was in its favor, is bound to create chaos in the administration of criminal justice in this circuit. Some judges may decide to disregard it. Others will attempt to apply it, although I am at a loss to know how they can since the panel supplies no guidelines as to what additional “indicia of reliability” will suffice. In some cases where a judge who regards himself as bound by the panel’s expression finds insufficient indicia, exclusion will result in an acquittal, unjustified under the long-standing rule of law, from which the government will be unable to appeal. In others, where the declaration has been admitted and the defendant convicted, panels of this court will be obliged to face the question á majority of the active judges seek to avoid today. There will be many months of uncertainty before the law in this circuit can be put back where the Supreme Court meant to leave it, as it ultimately will be either by this court or by higher authority. I cannot think of a case more clearly demanding en banc consideration.