(concurring):
I
I concur in the result reached by Judge Winter in part II of his opinion and in much of that part of the opinion, but in some respects my reasoning differs.
I decline to base reversal on the already overworked due process clause but rather would base it solely on the too great departure of the trial judge from his historic dispassionate role. After all, the burden of the production of evidence is on the United States, not upon the defendant,1 and certainly not upon the court. I would classify the error solely as one of federal criminal procedure.2
The dissent of Judge Russell accentuates my thoughts on this mátter as he recites that it is no more the duty of a trial judge to permit a guilty defendant to escape because of the reluctance of a prosecutor to call a material and available witness than to stand idly by and let an innocent defendant be convicted because of the hesitancy of defendant’s counsel to call a witness. If I thought for even one second that, should a defendant’s attorney move the court to call an available witness, explaining that he would not call the witness because the witness had made conflicting statements and he could not vouch for the witness’ credibility, and should the motion be denied, this court would hold it reversible error, I would vote to affirm on this point. But I cannot imagine such a result and accordingly vote to reverse, because evenhanded justice is equally or more important than the substance of an applicable rule.
II
Since we do not decide the question as to the absent document examiner mentioned in part III of the opinion, such expressions as are there made are not precedent unless an inference be taken from the statement in the second paragraph of the opinion that defendant’s other contentions are without merit. Despite, or on account of, this, as the case may be, I do not want anything said to intimate that I would hold other than the admission of the previous testimony to be reversible error, or that the witness was legally available, or that no effort, good faith or otherwise, was made to secure his attendance. And this is emphasized by the fact that the absent witness was an employee of the United States, and FBI agent, and subpoena power is nationwide in criminal cases. I see nothing in Barber or Mancusi which would make the evidence admissible here, and if there is a suggestion that a clearly shown good faith effort to obtain an absent witness may be all that is required, I do not think it compatible with the confrontation clause or inferable from those cases as a general rule to be followed. Admittedly overly simplified here, Barber set aside a conviction because “absolutely no effort” was made to obtain a witness (other than to ascertain his whereabouts) who was a federal prisoner in another state; while Mancusi sustained a conviction when *219the witness was a permanent resident of Sweden and admittedly unavailable.
Ill
I do not share the apparent apprehension of Judge Russell that we have departed from precedent or that our opinion should in any way inhibit the calling of a witness by the court in the ordinary case. My view of this case is predicated in no small part on the fact that, in this criminal trial, the court called the witness at the instance of the United States having previously been advised that the government would not call him.
IY
I agree there is no merit in defendant’s contentions listed as (c) and (d) in Judge Winter’s opinion.
. McCormick on Evidence, 2nd Ed., p. 806. See also, e. g. United States v. Goodling, 12 Wheat 460, 471, 6 L.Ed. 693 (1827); Davis v. United States, 160 U.S. 469, 485, 487, 16 S.Ct. 353, 40 L.Ed. 499 (1895).
. Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Mr. Justice Brandéis concurring).