with whom DYER, Circuit Judge, joins, dissenting as to Part II:
I concur in Judge Dyer’s dissent, and fully associate myself with his views as to the constitutionally impermissible nature of the warrantless search and seizure involved in this appeal.
Additionally, I dissent from Part II of the majority opinion for the en banc court, which adopts Part II of the panel opinion, 497 F.2d at 932 — 935. I disagree with Part II as to each of the two postulates it advances: (a) that a federal offense under Title 18, Section 657, was charged by any or either of the ten counts under which Mrs. Hand was in-dieted,1 and (b) that there was proof of the commission of a federal offense under any or either of the indictment counts.2
As to (a) I am content to rest my position upon the statement of the panel opinion, 497 F.2d at 934, that
A skimpier assertion of jurisdiction can scarcely be imagined than we find here. The element is, moreover, one' which can in no sense be waived or cured by verdict, being of the type whose absence is available for consideration even on motion in arrest of judgment,
as well as the additional statements, 497 F.2d at 933:
The question of the existence vel non of insurance was not submitted to the jury as an element of the offense charged, and appellant contends that consequently the jury failed to find a crucial and jurisdictional element of the alleged crimes. As to the accusation of having embezzled from a federally insured institution, appellant is entirely correct: it was neither proved nor found.
The argument advanced by the panel opinion that Mrs. Hand knew what she was charged with, “ * * * embezzling funds from her named employer * * * ” — and hence the “plain and concise statement” requirement of Rule 7(c), F.R.Crim.P. was satisfied — is wide of the mark.
Mrs. Hand was not on trial in a state court, where general allegations of embezzlement from a specified employer *480might suffice. Instead, she was on trial in a court whose jurisdiction was limited to trying violations of federal laws, here specifically Title 18, U.S.C., Section 657. Jurisdiction, not affirmatively appearing from the face of the indictment, was simply never present.
As to the second proposition, that regardless of the shortcomings of the charge, as laid in the indictment, somehow a case was made out: in addition to the quotations, supra, from Part II of the panel opinion, I turn to an additional, statement in that opinion, 497 F.2d at 933:
It is undisputed that the United States offered no proof that the deposits of the Union were insured in the manner charged.
That was enough to end the matter.
As to the search point covered by Judge Dyer’s dissent, the majority labors mightily to salvage a patently unconstitutional search and seizure. This ad hoc approach serves the purpose, in addition to preserving Mrs. Hand’s conviction, of approving unbelievably sloppy police work.
As to Part II, to which this dissent is directed, incredibly inefficient and insufficient pleading and proof by a United States Attorney, or perhaps his assistant, while certainly not approved, is not condemned either. I do not perceive a valid reason for this court to rescue this gentleman.
That Mrs. Hand may escape from punishment is overshadowed here by more important considerations. Poor performance by investigators and prosecutors should not pass muster unscathed and uncensured on the basis of an ad hominem approach that guilt of some offense is clear from the record. This misconceives our prime function of reviewing errors of law. I suggest also that occasional merited criticism of police and prosecutors is beneficial to the advancement of good order and discipline.
Efficient crime detection and punishment is not advanced but is retarded when we place precedents such as today’s in the books. It will return to vex us on another day.
With deference, I dissent from the majority opinion on the basis of these views as to Part II, as well as with respect to the unconstitutional search and seizure, so convincingly explicated by Judge Dyer.
. The indictment contained ten counts, each identical to the other nine except for dates and amounts. A sample count, Count I, is copied in the text of the panel opinion, (5th Cir.) 497 F.2d 933.
. See the language of Mr. Justice Black in Cole v. Arkansas, 1948, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed.2d 644, 647:
“It is as much a violation of due process to send an accused to prison following conviction of a charge upon which he was never tried as it would be to convict him upon a charge that was never made”.
Both sides of the coin appear here.