(concurring) .
Recognizing the importance of an unambiguous statement of the rule to be applied in this circuit in the future, I concur in the clear, straight-forward opinion which Judge Sprecher has writ*886ten. Candor, however, compels me to add two brief comments.
1. In view of the references to United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973), in both the majority and dissenting opinions, it may be of significance to record the fact that I cast one of the four votes in favor of granting the petition for rehearing en banc in that case. The reason for my vote was my concern that the panel opinion had incorrectly decided that the failure of the district court to subpoena an occurrence witness violated the defendant’s right to compulsory process. Id. at 329-331.1
2. I have not yet been able satisfactorily to explain to myself how this circuit can lawfully announce that an instruction to a jury which the Supreme Court has specifically and squarely held is not reversible error in federal criminal trials shall in the future constitute reversible error when given in such trials conducted in the Seventh Circuit. Possibly the answer is confidence that Supreme Court review of a decision such as this would lead to an overruling of Allen. That confidence may well be misplaced, cf. Johnson v. Louisiana, 406 U.S.356, 92 S.Ct. 1620, 32 L.Ed.2d 152; even if warranted, it does not provide a completely satisfactory answer to a difficult question.
. That case, incidentally, suggests a difference between a mandate directing the trial court to take action “consistent with” as opposed to “not inconsistent with” a given standard. In both DeStefano and Silvern instructions which were consistent with the ABA standards were given, as expressly required by Brown. The issue was whether additional instructions, not required by Brown but permitted by Allen, were inconsistent with a lawfully required standard, and if so, whether that inconsistency was reversible error.