joined by Circuit Judge ENGEL, dissenting.
The Court has embarked upon a novel and unchartered venture which is fraught with dire and far-reaching consequences. The decision is unsupported by precedent or authority. It conflicts with the prior decisions not only of this Court but also of the Supreme Court of the United States.1 As shown below, it undermines the broad investigatory powers which historically have been possessed by grand juries. In the present case it allows a convicted perjurer with a long criminal record to go free on two perjury charges. I respectfully dissent. I would affirm the judgment of conviction entered by the District Court on Counts III and IV of the indictment.
On October 10, 1972 appellant Vincent Moran Doss was charged in two sealed indictments by a federal grand jury in the Western District of Tennessee. One indictment charged Doss with causing Paul Patterson and Nolan Ray Williamson to possess, with intent to distribute, approximately 20,000 amphetamines in November, 1971, in violation of 21 U.S.C. § 841(a). The other sealed indictment charged Doss with causing Paul Patterson to possess fifty counterfeit twenty dollar bills in January, 1972, in violation of 18 U.S.C. § 472.
Patterson had been cooperating with federal authorities since April or May, 1972, and he subsequently assisted the Government in its investigation of Doss. Patterson learned that Doss was involved in other criminal activities involving additional counterfeit currency, a stolen agricultural chemical Treflan, 300 stolen Browning automatic weapons, and other stolen property. None of these matters was included in the two sealed indictments, because they took place subsequent to the offenses charged therein.
On October 4,1972 Patterson and Doss, in a telephone conversation, spoke about counterfeit money and Browning automatic weapons. On October 9, 1972 Patterson and Doss discussed trading the Browning guns for the chemical Treflan. A similar telephone conversation took place on October 12, 1972.
On October 13, 1972 Patterson, Doss, and a Government agent discussed a possible exchange of the chemical Treflan to Doss for a truckload of 300 stolen Browning automatic weapons.
On October 16, 1972 Patterson told Doss that he (Patterson) could sell some counterfeit money to Doss.
On November 7, 1972 a Government agent overheard Patterson and Doss discuss Browning automatic weapons and counterfeit money.
On November 13, 1972 Doss appeared before the same grand jury, which one month earlier had returned the sealed indictments against him, to answer questions concerning his subsequent criminal activities. Doss was given comprehensive warnings; he was *283informed that he was a “target” defendant of a criminal investigation; he was told that he had a right to confer with his own attorney outside the grand jury room, and was advised of his right to remain silent; however, he was not told of the existence of the two sealed indictments which related to his past activities.
During his testimony before the grand jury Doss was excused nine times to consult with his retained attorney. After eight of his nine consultations Doss invoked his Fifth Amendment right against self-incrimination. The Assistant United States Attorney, Larry Parrish, asked Doss the following pertinent questions before the grand jury:
Q Has anybody ever attempted or offered to you for sale a large amount, a large number of Browning shotguns which were stolen?
A No, sir.
Q Including two or three hundred guns?
A No, sir, offer to me for sale, no.
Q Has anybody in any way, ever informed you about any guns like that?
A That quantity of guns?
Q Yes.
A I don’t think so, no.
Q Guns that were taken from a Navaho [sic] truck?
A No.
Q You know nothing about anything like that?
A No, sir.
Q You wouldn’t know who has possession of them right now?
A No, sir.
Mr. Parrish later asked Doss:
Q Has Paul E. Patterson ever tried to sell you any counterfeit money?
A No, sir, or if he did, I don’t know anything about it.
This testimony before the grand jury formed the basis for Counts III and IV of a four-count perjury indictment returned against Doss on December 11, 1972. Count III related to Doss’ answers during the grand jury proceeding concerning stolen guns, and Count IV charged Doss with testifying falsely with respect to his answers about counterfeit money.2
On March 26, 1973 Doss’ attorney filed a motion to suppress grand jury testimony and to dismiss the perjury indictment. The District Court dismissed Count I of the indictment but overruled the motion to dismiss on Counts II, III, and IV.
On February 11, 1974 a jury trial was held on the remaining three counts of the perjury indictment. After the conclusion of all the evidence District Court Judge Robert M. McRae made the following comments from the bench with respect to Count IV and with respect to Counts II and III:
Now, he had already been indicted on one counterfeit charge, but that was not pertaining to any sale of counterfeit money, it was counterfeit — a charge based on counterfeit money Mr. Doss had allegedly given to Mr. Patterson and caused him to transport it through this district.
With regard to the two counts pertaining to those guns stolen from the Navajo *284Freight Line, that was an on-going investigation that the Grand Jury in this district had not returned any indictments, and was an appropriate matter for investigation.
The jury acquitted Doss on Count II, but returned a verdict of guilty as to Counts III and IV.
Doss was sentenced on February 15, 1974 to three years’ confinement on each count. The sentences ran concurrent with each other and with other longer sentences imposed on Doss stemming from other convictions.3 He appealed his conviction on the perjury counts to this Court, which appeal was heard by a three-Judge panel of this Court on October 13, 1975.
On November 18, 1976 a two-Judge panel of this Court, consisting of Judges Edwards and McCree,4 in United States v. Doss, 545 F.2d 548 (6th Cir. 1976), in an opinion written for the panel by Judge Edwards, reversed Doss’ conviction on both perjury counts but left open the question as to “what result would flow from calling a defendant indicted for one crime to appear and give evidence before a grand jury upon a wholly different and separable offense.” Id. at 552 n. 1.
On December 16, 1976 the Government filed a petition for rehearing with suggestion for rehearing en banc. On December 27, 1976 the suggestion was granted.
On April 12, 1976 the petition for rehearing was considered en banc on the briefs but without oral argument.
I
The Court, in its majority opinion en banc, written by Judge Edwards, holds that where a substantial purpose of calling an indicted defendant before a grand jury is to question him secretly and without counsel and without informing him that he is the subject of a sealed indictment, such grand jury proceeding is in violation of the Fifth and Sixth Amendments. The Court further holds that where the accused is substantially questioned about the subject matter of the sealed indictments, any subsequent indictments for perjurious answers given in such proceeding must be quashed because the proceeding itself is absolutely void for lack of jurisdiction, relying on Brown v. United States, 245 F.2d 549 (8th Cir. 1957).
The Court, however, adds a crucial caveat:
No such result, of course, would flow (absent facts not presented here) from calling a defendant indicted for one crime to appear and give evidence before a grand jury upon a wholly different and separable offense.
In light of the above caveat, the incongruity between the reasoning in the majority opinion and its end result is self-evident. The Court reverses the convictions on both of the perjury counts, Counts III and IV. By the two-Judge panel’s own concession in its opinion reported in 545 F.2d at 550, Count III involved testimony before the grand jury on an entirely different and unrelated offense from that for which Doss *285had been secretly indicted. The panel so stated:
[T]he question addressed to Doss which the jury found he answered falsely under Count III of the indictment was totally unrelated to the offenses for which he had been indicted[5] (Footnote added)
The incongruous effect of this Court’s decision is manifest in light of the facts of *286this case, i. e., where a defendant is questioned at any time in a grand jury proceeding about an offense for which he stands indicted, all subsequent indictments for per-jurious answers given in such proceeding must be quashed even if any or all of the perjury indictments concern testimony about a wholly different, unrelated and separable offense, and even if the main or substantial purpose of the grand jury proceeding, as here, is to question the defendant about matters unrelated to the subjects of the sealed indictments.
The incongruity does not end here, however. The majority also holds:
Where a substantial purpose of calling an indicted defendant before a grand jury is to question him secretly and without counsel present without his being informed of the nature and cause of the accusation about a crime for which he stands already indicted, the proceeding is an abuse of process which violates both the right to counsel provision of the Sixth Amendment and the due process clause of the Fifth Amendment. Indictments for perjurious answers given in such a proceeding must be quashed because the proceeding itself is void.
The effect of this holding is that where an indicted defendant is brought before the grand jury without counsel present with him in the grand jury room,6 and he is not informed of the nature of the offenses for which he has been secretly indicted, the grand jury proceeding is ipso facto void; and, given a literal reading of the above holding, the majority apparently holds that even where the defendant is questioned solely on matters wholly unrelated to the sealed indictment, the defendant must nevertheless first be informed that he is the subject of a sealed indictment; otherwise the defendant is free to perjure himself.
Finally, the Court’s reasoning with respect to Count IV of the perjury indictment is wholly without basis in fact. The Court actually concedes that the counterfeit offense about which Doss was questioned in the grand jury proceeding, and which formed the basis of Count IV of the perjury indictment, “might be regarded as a totally different transaction” from the counterfeit offense in the sealed indictment. In fact the opinion of the two-Judge panel in United States v. Doss, 545 F.2d 548, 549 (6th Cir. 1976), contains the following:
The question pertaining to counterfeit and the answer which- appellant gave is as follows:
Q. Has Paul E. Patterson ever tried to sell you any counterfeit money?
A. No, sir, or if he did, I don’t know anything about it.
Analysis of the details of this case shows that the counterfeit offense as to which appellant was previously indicted pertained to appellant’s furnishing Patterson with $1,000 of counterfeit in January of 1972. On the other hand, the question and answer now alleged to be perjurious *287appear to pertain to Patterson’s testimony that he offered appellant counterfeit in October of 1972. The discrepancy in dates and the reversal of roles of the parties might create doubt that any answer to the question posed to appellant could have been used in any way in the government’s ease under the then pending indictment.
These were two completely different and separate offenses, involving different and separate acts, i. e. one which occurred in January, 1972 and another which occurred some ten months later, in October, 1972. Moreover, in January, 1972 it was Doss who furnished Patterson with counterfeit money, whereas in October, 1972 it was Patterson who offered counterfeit money to Doss.
In fact, District Judge McRae in his comments from the bench quoted above, and the Government in its briefs to this Court, recognized these very distinctions. Counsel for the Government was clearly within his rights, in fact it was his duty, to question Doss about any counterfeiting incidents which took place subsequent to the initial counterfeiting offense that was the subject of one of the secret indictments.
Furthermore, from my examination of the record on this appeal, there was no evidence, contrary to the majority’s assertion, that the counterfeit money which Doss furnished to Patterson in January, 1972 “consisted in part” of the same counterfeit money that Patterson offered to furnish to Doss in October, 1972.
The Court further makes the wholly unwarranted and unsubstantiated statement that “the government was employing the grand jury testimony of the secretly indicted witness [Doss] for the substantial purpose of preparing testimony against him,” whereas in fact nowhere in the grand jury transcript did the Government inquire into the subject matter of the sealed counterfeit indictment, i. e. Doss’ furnishing counterfeit money to Paul Patterson in January, 1972. The 28-page grand jury transcript consisted of approximately 672 lines of questions and answers and approximately 150 questions propounded to Doss. Excluding the one, two-line, question propounded to Doss about Patterson’s offer in October, 1972 to furnish to Doss counterfeit money, there were only three questions, or 2% of all of the questions propounded, (consisting of a total of only four lines) which dealt with counterfeit money; and none of these questions, I submit, can plausibly be characterized as constituting the preparation of testimony against Doss. See United States v. Mandujano, 425 U.S. 564, 609, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), (Stewart, J., concurring). Each of these three questions referred to Doss’ alleged dealings in counterfeit money not with Patterson, but rather, specifically with other named individuals: Gary Lily (p. 10, lines 21-22); Gene Reeves (p. 23, line 15); and Kenny Day and Jim Aaron (p. 26, line 5).
Only one question might even remotely be construed broadly enough to involve the counterfeit indictment. Doss was asked, “Do you have any business dealings with Mr. Patterson, or is it just a personal relationship?” It is doubtful that this query was aimed at the counterfeit transaction in January because of its generality and use of the present tense (p. 9, lines 15-16). In any event, the question was altogether innocuous since in response, Doss raised his Fifth Amendment privilege after consulting his attorney, and did not answer the question.
Thus it is clear that the Government attorney did not undertake “substantial” questioning of Doss relating to Doss’ furnishing Patterson with counterfeit money in January, 1972; rather the facts establish that no question can be reasonably interpreted as concerning the subject matter of that secret indictment.
The majority also states that “the government deliberately and purposely employed the grand jury in questioning” Doss about the narcotics charge upon which he was already secretly indicted. I presume that this observation was intended to support the majority’s conclusion that the prosecutor had undertaken “substantial questioning of appellant . . . about the subject matter of the secret indictments.” As mentioned above, this particular indict*288ment alleged that Doss had furnished Patterson and Nolan Ray Williamson with a large quantity of amphetamines in November, 1971. Contrary to the majority I find no questions which directly concern the supplying of any amphetamines. Rather, at one point Doss was asked if Williamson had attempted to sell him stolen agricultural chemicals. Only one question could have indirectly implicated the 1971 amphetamine deal. Doss was asked, “Did you ever have any business dealings with him (Williamson)?” (p. 21, line 12). Again Doss relied on his Fifth Amendment privilege, after consulting his attorney, and did not answer the question. As the majority correctly noted, Doss’ answers to these inquiries were not made a basis for a perjury count. Even if this broad question was arguably related to the secret narcotics indictment, it does not affect my conclusion that a substantial (much less a predominate) motive of the entire proceedings was not to inquire into the offenses already under indictment.
Also, even if the grand jury questions pertaining to counterfeit money were somehow arguably related to the pending sealed counterfeit indictment (with which proposition I do not agree), the Court’s reversal of the perjury conviction on Count III is completely unsupported by law.
Furthermore, I have been unable to find any case which goes so far as to hold that a grand jury’s jurisdiction to inquire into offenses unrelated to the subject of pending indictments is vitiated ab initio once several questions are propounded which arguably might relate to the pending indictments.
It would seem to me that even if the prosecutor in investigating a number of crimes strays slightly into forbidden territory and asks a few questions of a witness who is appearing before the grand jury, which questions were objectionable because the subject matter was embraced in a pending indictment, an adequate remedy exists to exclude such evidence upon the trial of the pending indictment. It is certainly not necessary to declare the entire grand jury proceeding as null and void for lack of jurisdiction; it certainly does not license a witness to commit perjury.
The Court relies on three cases for its holding: Brown v. United States, 245 F.2d 549 (8th Cir. 1957); United States v. Lawn, 115 F.Supp. 674 (S.D.N.Y.1953); and United States v. Kimball, 117 F. 156 (C.C.S.D.N.Y. 1902).
The Court’s reliance on Brown is misplaced. The facts in Brown were considered in our decision in United States v. Lazaros, 480 F.2d 174, 178 n. 6 (6th Cir. 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1409, 39 L.Ed.2d 468 (1974), as follows:
In that case the defendant was convicted of perjury based on testimony before a grand jury sitting in Nebraska. The testimony was given in regard to activity that occurred in St. Louis, Missouri. There was no connection between any of the alleged criminal activity and Nebraska, other than the fact that the grand jury happened to be sitting there. The Eighth Circuit held that the Nebraska grand jury had no jurisdiction to investigate criminal conduct occurring in Missouri, and consequently, the testimony before the grand jury could not be used to support a perjury conviction.
See also United States v. Mandujano, 425 U.S. 564, 582-3 n. 8, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), (Burger, C. J., plurality opinion).
This Court in Lazaros determined, that Brown was inapposite to the factual situation in Lazaros. This Court stated:
This is obviously not the case here. The grand jury was investigating bribery that had occurred primarily within the jurisdiction in which the grand jury was sitting. The perjurious testimony related to incidents that occurred within that jurisdiction. The grand jury had both subject matter and territorial jurisdiction over the matters to which the perjurious testimony pertains. (Id. at 178 n. 6)
As in Lazaros, the grand jury in the present case was “conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction.” United States v. Chevoor, 526 F.2d 178, 185 (1st Cir. 1975), cert. denied, 425 U.S. 935, 96 *289S.Ct. 1665, 48 L.Ed.2d 176 (1976). See also United States v. Cuevas, 510 F.2d 848, 852 (2d Cir. 1975).
Unlike the Nebraska grand jury in Brown, which was without jurisdiction from the outset of the proceedings, the grand jury in the present case was clearly within its jurisdictional authority to question Doss about matters unrelated to the offenses for which he already stood secretly indicted. Even if certain questions during the proceeding related to the subject matter of the secret indictments (which I deny), that incident did not strip the grand jury of its already-acquired jurisdiction.
Brown is further distinguishable from the present case in that the Nebraska grand jury in that case caused the defendant to be brought before it solely for the purpose of “extracting testimony from him with a view to prosecuting him for perjury . ..”
Masinia v. United States, 296 F.2d 871, 875 (8th Cir. 1961). The Court in Brown stated at 555:
The purpose to get him indicted for perjury and nothing else is manifest beyond all reasonable doubt.
Again, such was not the case here. See LaRocca v. United States, 337 F.2d 39, 42-43 (8th Cir. 1964).
Contrary to the implication in the majority opinion there is no evidence that the main or substantial purpose of the grand jury proceeding was to question Doss about the offenses which were the subject of the sealed indictment, or to get Doss indicted for perjury; nor does the grand jury transcript show that the Government attorney “undertook substantial questioning” of Doss “about the subject matter of the secret indictments.” The record is replete with documentation of the fact that Doss was the subject of numerous criminal investigations substantially unrelated to the charges in the sealed counterfeiting indictment. During the grand jury proceeding Doss was questioned about various illegal activities such as stolen Browning automatic weapons, stolen agricultural chemicals, and other assorted stolen merchandise, such as saddles, tractors, automobiles, handguns, and cameras.
As already noted, the questions propounded to Doss relating to counterfeit money constituted only a minute portion of the entire grand jury proceeding. Moreover, the question concerning counterfeit money, and Doss’ answer thereto, which formed the basis of Count IV of the perjury indictment, was unrelated to the counterfeit offense for which Doss was under sealed indictment. As the Court notes, the grand jury question pertained to Patterson’s offering Doss counterfeit money in October, 1972, whereas the counterfeit offense for which Doss was under sealed indictment pertained to Doss’ furnishing Patterson with counterfeit money in January, 1972.
The fact that the grand jury questions regarding counterfeit money were unrelated to the sealed indictment and the fact that the questions concerning counterfeit money constituted only a very small part of the grand jury proceeding, are further proof that the main or substantial purpose of the grand jury proceeding was not to question Doss about the offenses for which he was secretly indicted, and was not, as in Brown, supra, for the sole “purpose to get him indicted for perjury.”
The Court’s quotations from United States v. Lawn, supra, and United States v. Kimball, supra, are merely accurate for the propositions stated, but they do not support the majority’s ultimate holding reversing Doss’ perjury convictions under Counts III and IV. The Lawn case prohibits the Government from questioning an indicted defendant in a grand jury proceeding about the offense charged in the pending indictment, unless the defendant waives his Fifth Amendment right against self-incrimination. The Kimball case merely refers to a provision in the New York State Code of Criminal Procedure which addressed the issue of compelling a defendant to testify before a grand jury. Neither of these cases held that a grand jury’s jurisdiction was vitiated ab initio once an inquiry (into offenses unrelated to charges for which the defendant already stood indicted) briefly *290touched upon a matter only arguably related to the pending indictment. Rather, a grand jury has jurisdiction to investigate possible criminal violations where an indictment has yet to be returned. The courts cannot limit a legitimate grand jury investigation of alleged criminal violations. Branzburg v. Hayes, 408 U.S. 665, 700-01, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). A presumption of regularity attaches to a grand jury’s proceeding, United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977), and such regularity has not been sufficiently rebutted herein.
II
The effect of the Court’s ruling severely handicaps the grand jury’s function as a body investigating crimes. The investigatory role of the grand jury has been fully developed by the Supreme Court.
As noted by the Court in Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956):
The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.
In the United States “the grand jury has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972). Cf. United States v. Lazaros, 480 F.2d 174, 177-78 (6th Cir. 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1409, 39 L.Ed.2d 468 (1974).
In this manner the grand jury wields the sword of accusation against persons who the grand jurors have probable cause to believe are involved in criminal activity, and shields the innocent against oppressive prosecution. It determines “whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962).
The grand jury conducts “a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919).
Rather, “[t]he grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged.” United States v. Calandra, 414 U.S. 338, 344, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974).
The Court in Calandra quoted at length from Branzburg v. Hayes, supra, on the importance of the grand jury’s role in law enforcement. At 344, 94 S.Ct. at 618 the Court said:
In Branzburg, the Court had occasion to reaffirm the importance of the grand jury’s role:
“[T]he investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen . . ..” 408 U.S., at 700 [92 S.Ct., at 2666.]
“The role of the grand jury as an important instrument of effective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it.
‘When the grand jury is performing its investigatory function into a general problem area . . . society’s interest is best served by a thorough and extensive investigation.’ Wood v. Georgia, 370 U.S. 375, 392 [82 S.Ct. 1364, 1374, 8 L.Ed.2d 569] (1962). A grand jury investigation ‘is not fully *291carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.’ United States v. Stone, 429 F.2d 138, 140 (CA2 1970). Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. Costello v. United States, 350 U.S., at 362 [76 S.Ct. 406 at 408], It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made . . . .” Id., at 701-702, 92 S.Ct., at 2666.7 (Footnote added)
To this end the grand jury must call witnesses in the manner best suited to perform its task, and the witnesses are legally bound to give testimony, as “ ‘the public . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.” Branzburg v. Hayes, supra, 408 U.S. at 688, 701, 92 S.Ct. at 2660; and United States v. Mandujano, 425 U.S. 564, 572, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Cf. United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and Kastigar v. United States, 406 U.S. 441, 443-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
I recognize, however, that the grand jury cannot compel an indicted defendant unknowingly to incriminate himself on charges on which he stands accused. As noted by Mr. Justice Brennan in United States v. Mandujano, 425 U.S. at 594, 96 S.Ct. at 1785 (Brennan, J., concurring in judgment):
It is clear that the government may not in the absence of an intentional and knowing waiver call an indicted defendant before a grand jury and there interrogate him concerning the subject matter of a crime for which he already stands formally charged. Lawn v. United States, 355 U.S. 339 [78 S.Ct. 311, 2 L.Ed.2d 321] (1958); United States v. Calandra, 414 U.S. at 345, 346 [94 S.Ct., at 618, 38 L.Ed.2d, at 569], The Fifth Amendment requires suppression of any statements of the accused that were so obtained.
Professor Moore states:
It is improper for the government to utilize a grand jury for the sole or dominating purpose of obtaining information in preparation for the trial of an already pending indictment. But the grand jury proceeding would not be improper where another purpose is predominant notwithstanding that the government may derive incidental benefit therefrom. (8 Moore’s Federal Practice ¶6.04 at 6-69 (1976))
Thus, this Court in United States v. George, 444 F.2d 310, 314 (6th Cir. 1971), stated:
So long as it is not the sole or dominant purpose of the grand jury to discover facts relating to his pending indictment, *292the Court may not interfere with the grand jury’s investigation.[8] (Footnote added)
(This was quoted approvingly in United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977).)
In United States v. Woods, supra at 249-50, two witnesses were called before a grand jury which had already indicted numerous defendants in a drug conspiracy. The defendants, however, never made a showing that the sole or dominant purpose of the grand jury proceeding was to prepare the pending indictment for trial, and absent such a showing this Court held that such a proceeding was proper, even though the witnesses “did testify before the grand jury regarding some of the matters at issue in [the defendants’] trial.” In fact this Court indicated that the witnesses were “called in order to determine whether other persons not yet indicted were also involved in the conspiracy under investigation.” Id. at 250.
Similarly, the Eighth Circuit in United States v. Sellaro, 514 F.2d 114, 122 (8th Cir. 1973), cert. denied, 421 U.S. 1013, 95 S.Ct. 2419, 44 L.Ed.2d 681 (1975), said:
Where the purpose of the grand jury proceeding is directed to other offenses, its scope cannot be narrowly circumscribed and any collateral fruits from bona fide inquiries may be utilized by the government.
The First Circuit in United States v. Doe (Appl. of Ellsberg), 455 F.2d 1270 (1st Cir. 1972), refused to prohibit a Massachusetts federal grand jury’s investigation into other offenses in the Ellsberg-Pentagon Papers controversy, despite a pending trial in California on charges against Ellsberg for the alleged unlawful possession and conversion of the Pentagon Papers. The Court, at 1274, said:
We recognize, in short, that grand jury proceedings cannot be policed in any detail. It is a price we pay for grand jury independence that sometimes people are indicted on the basis of evidence tainted in party by hearsay, Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) or of illegally obtained evidence, Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Nor is a grand jury narrowly confined in its objectives, Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919).
(This was quoted approvingly in United States v. Woods, supra at 250.)
Necessarily, the Government prosecutors in Doe were discouraged from using the Massachusetts grand jury as a discovery device for the pending California trial by the Court’s order that a transcript of the proceedings of the Massachusetts grand jury be made available to the California trial court.
As noted by the Court in the case of In re Grand Jury Investigation (General Motors Corp.), 32 F.R.D. 175, 183 (S.D.N.Y.), appeal dismissed, 318 F.2d 533 (2d Cir.), petition for cert. dismissed, 375 U.S. 802, 84 S.Ct. 25, 11 L.Ed.2d 37 (1963):
As for criminal proceedings, so long as the motivating purpose of the grand jury investigation is not the accumulation of evidence for a pending criminal case, the Government may use evidence incidentally acquired in the course of a legitimately instituted grand jury in the pending criminal case. Application of Texas Co., supra. [27 F.Supp. 847 (E.D.Ill.1939)]. In the Texas case, the Texas Company sought to restrain the Justice Department from presenting evidence concerning alleged antitrust violations to a Texas grand jury. The basis of the objection was the fact that there were indictments pending in another district in which the Texas Company and others were charged with antitrust violations involving the *293identical facts. In rejecting the proposed, interference with the grand jury, the court stated:
“I have no way of knowing whether the facts developed in this matter may help the Government in its prosecution of other indictments. But even if they should be an aid in ascertaining where lies the truth, the goal of all judicial investigations, whatever the result of that truth may be, it is my duty as a court to allow is to be produced, if it is brought to light in a legitimate investigation, as I am assured this is.”
Application of Texas Co., supra, 27 F.Supp. at 851.
Cf. United States v. Kovaleski, 406 F.Supp. 267, 269 (E.D.Mich.1976); and United States v. Pack, 150 F.Supp. 262, 264 (D.Del. 1957). See also United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964), and Application of Iaconi, 120 F.Supp. 589, 591 (D.Mass.1954). Compare United States v. Braasch, 505 F.2d 139, 147 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975); Beverly v. United States, 468 F.2d 732, 742-44 (5th Cir. 1972); and In re Pilliteri, 420 F.Supp. 913 (W.D.Pa. 1976).
Most recently the Supreme Court in United States v. Wong, 431 U.S. 174 n. 8, 97 S.Ct. 1823,1826, 52 L.Ed.2d 231 (1977), stated:
There is no constitutional prohibition against summoning potential defendants to testify before a grand jury. United States v. Dionisio, 410 U.S. 1, 10 n. 8 [93 S.Ct. 764, 35 L.Ed.2d 67] (1973); United States v. Mandujano, supra, [425 U.S.] at 584 n. 9, 594 [96 S.Ct. 1768, 1780,1785, 48 L.Ed.2d 212] (Brennan, J. concurring in the judgment). The historic availability of the Fifth Amendment privilege in grand jury proceedings, Gounselman v. Hitchcock, 142 U.S. 547 [12 S.Ct. 195, 35 L.Ed. 1110] (1892), attests to the Court’s recognition that potentially incriminating questions will frequently be asked of witnesses subpoenaed to testify before the grand jury; the very purpose of the inquiry is to ferret out criminal conduct, and sometimes potentially guilty persons are prime sources of information.
The thrust of these cases is that a grand jury should not be hampered in its ongoing criminal investigations, i. e., from summoning as witnesses persons already indicted. So long as the grand jury’s dominant motive or substantial purpose in questioning these indicted persons is to determine if criminal activity unrelated to the pending indictments has occurred, rather than to question these persons as a pretrial discovery device on the pending indictments, the summoned witnesses cannot claim an abuse of the grand jury process. As I have already noted, in this case the Government had several investigations going against Doss, including the ongoing investigation on the stolen Browning automatic weapons, in which investigation no indictment had been returned when Doss was questioned by the grand jury on November 13, 1972. Clearly, a grand jury investigation called for these purposes, unrelated to the two sealed indictments, was entirely proper.
The crux of this case narrows down to the question of whether Doss had a right to perjure himself before the grand jury. The answer must be “No,” lest the investigative function of the grand jury and the public responsibility attendant thereto be critically impaired.
In United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), the Supreme Court faced the question of whether, absent the giving of Miranda warnings to a grand jury witness, false statements given by the witness to the grand jury must be suppressed in a prosecution for perjury based on those statements. The Court held that even if Mandujano was a “putative defendant”, he was not entitled to the full Miranda warnings, and that, in any event, he had no right to commit perjury before the grand jury.
Although there was an absence of unanimity with respect to certain parts of the plurality opinion, the entire Court agreed that the Fifth Amendment privilege against self-incrimination does not sanction
*294the commission of perjury. See also United States v. Wong, 431 U.S. 174 n. 1, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977).
Mr. Chief Justice Burger, speaking for the plurality in Mandujano, supra, stated, 425 U.S. at 576-77, 96 S.Ct. at 1776:
In this constitutional process of securing a witness’ testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath— cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.
Similarly, our cases have consistently— indeed without exception — allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry. See, e. g., United States v. Knox, 396 U.S. 77 [90 S.Ct. 363, 24 L.Ed.2d 275] (1969); Bryson v. United States, 396 U.S. 64 [90 S.Ct. 355, 24 L.Ed.2d 264] (1969); Dennis v. United States, 384 U.S. 855 [86 S.Ct. 1840, 16 L.Ed.2d 973] (1966); Kay v. United States, 303 U.S. 1 [58 S.Ct. 468, 82 L.Ed. 607] (1938); United States v. Kapp, 302 U.S. 214 [58 S.Ct. 182, 82 L.Ed. 205] (1937). [Footnote omitted].
Again, at 582-83, 96 S.Ct. at 1779 the plurality continued:
In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury, any more than would be the case with false testimony before a petit jury or other duly constituted tribunal. In another context, this Court has refused to permit a witness to protect perjured testimony by proving a Miranda violation. In Harris v. New York, 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1] (1971), the Court held that notwithstanding a Miranda violation:
“[The Fifth Amendment] privilege cannot be construed to include the right to commit perjury.” Id., at 225 [91 S.Ct., at 645, 28 L.Ed.2d, at 4],
More recently, the Court reaffirmed this salutary principle:
“[T]he shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.” Oregon v. Hass, 420 U.S. 714, [723, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570, 577] (1975).
See also Walder v. United States, 347 U.S. 62 [74 S.Ct. 354, 98 L.Ed. 503] (1954); United States v. DiGiovanni, 397 F.2d 409, 412 (CA7 1968); Cargill v. United States, 381 F.2d 849 (CA10 1967); United States v. DiMichele, 375 F.2d 959, 960 (CA3 1967).
The fact that here the grand jury interrogation had focused on some of respondent’s specific activities does not require that these important principles be jettisoned; nothing remotely akin to “entrapment” or abuse of process is suggested by what occurred here. Cf. Brown v. United States, 245 F.2d 549 (CA8 1957). Assuming, arguendo, that respondent was indeed a “putative defendant,” that fact would have no bearing on the validity of a conviction for testifying falsely. [Footnote omitted]
Mr. Justice Brennan, joined by Mr. Justice Marshall, and Mr. Justice Stewart, joined by Mr. Justice Blackmun, filed concurring opinions. Both Justices Brennan and Stewart quoted with approval from Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969) (footnote omitted):
Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them. (Id. 425 U.S. at 585, 609, 96 S.Ct. at 1781).
*295(Quoted approvingly in United States v. Wong, 431 U.S. 174,180,97 S.Ct. 1823,1827, 52 L.Ed.2d 231 (1977).)
More recently in United States v. Wong, supra, the Supreme Court unanimously held that neither the Fifth Amendment testimonial privilege nor the Fifth Amendment due process requirements protect “a witness who is called to testify before a grand jury while under investigation for possible criminal activity, and who is later indicted for perjury committed before the grand jury,” (id. 431 U.S. at 174, 97 S.Ct. at 1824) even though no effective warning of the constitutional privilege to remain silent was given. See also United States v. Washington, 431 U.S. 181 n. 1, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977).
As noted by the Court in Wong, 431 U.S. at 178, 97 S.Ct. at 1825.
As our holding in Mandujano makes clear . . . the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it “does not endow the person who testifies with a license to commit perjury.” Glickstein v. United States, 222 U.S. 139, 142 [32 S.Ct. 71, 73, 56 L.Ed. 128] (1911).
Again the Court stated at 1827:
But, as the Court has consistently held, perjury is not a permissible way of objecting to the Government’s questions. . Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely. United States v. Knox [396 U.S. 77] at 82-83 [90 S.Ct. 363, at 366-367, 24 L.Ed.2d 275].
With equal force it may also be stated that the Sixth Amendment privilege likewise does not condone perjury.
A reading of the grand jury transcript in the present case reveals that Doss was fully apprised of his right to remain silent and of his right to confer with an attorney during the questioning. Doss indicated that he understood his Fifth Amendment rights and, in fact, he left the grand jury room nine times in order to consult with his attorney. In such a situation it cannot be said that Doss was compelled to testify falsely before the grand jury; rather, the record reflects that he knowingly perjured himself. See generally United States v. Washington, supra.9
The majority’s reference to the revival of the practices of the Star Chamber is an extravagant analogy. Doss was informed of his constitutional rights, and he often conferred with his attorney outside the grand jury room. Moreover, the dominant purpose of the grand jury’s questions was to investigate specific criminal activities outside the scope of the sealed indictments.
The claim that Doss’ Sixth Amendment rights were violated by the fact that his attorney was not invited to come into the grand jury room during the proceedings, is frivolous.
The grand jury’s public responsibility for effective law enforcement requires broad investigative powers which should not be so restricted as to undermine the very integrity of the grand jury process. I am of the opinion that the convictions on Counts III and IV of the perjury indictment should be affirmed.
. United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977); United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977); United States v. Mandu-jano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); United States v. Lazaros, 480 F.2d 174 (6th Cir. 1973); and United States v. George, 444 F.2d 310, 314 (6th Cir. 1971).
. Count III provided as follows:
COUNT THREE
On or about November 13, 1972, in the Western District of Tennessee, Western Division,
-----VINCENT MORAN DOSS------
having been duly administered an oath to tell the truth, knowingly testified falsely before the United States Grand Jury empaneled and sitting in the Western District of Tennessee, that on November 13, 1972, he knew nothing about two or three hundred guns stolen from Navajo Freight Lines, a material declaration when in fact he had discussed those guns with Paul E. Patterson during September and October 1972, in violation of Title 18, United States Code, § 1623.
Count IV provided as follows:
COUNT FOUR
On or about November 13, 1972, in the Western District of Tennessee, Western Division,
-----VINCENT MORAN DOSS------
having been duly administered an oath to tell the truth, knowingly testified falsely before the United States Grand Jury empaneled and sitting in the Western District of Tennessee, that on November 13, 1972, Paul E. Patterson had never offered him any counterfeit money for sale, a material declaration, when in fact in October, 1972, Paul E. Patterson had offered counterfeit money to him for sale in violation of Title 18, United States Code, § 1623.
. Doss had also been indicted by the federal grand jury for the Western District of Tennessee at least twice on other charges.
On November 13, 1972, the same day that Doss had appeared before the grand jury proceeding in which he perjured himself, Doss was indicted for transporting stolen goods in interstate commerce. On January 31, 1974 he was found guilty on this charge.
On October 9, 1973 Doss was indicted on three other counts. One count related to obstruction of justice, another related to an offer to bribe a witness in a federal trial in order to influence her testimony, and the third count related to conspiracy to do the same. On January 17, 1974 Doss was convicted on all three counts.
Doss was sentenced on February 15, 1974, to five years’ imprisonment on his conviction for transporting stolen goods. This sentence ran concurrently with a five year sentence imposed on October 5, 1973 on another unrelated conviction. On the same day he was given concurrent sentences of five years’ imprisonment on each count of his three-count obstruction of justice conviction. These sentences ran consecutively with the transportation of stolen goods conviction and his five year October 5, 1973 sentence.
. Judge William E. Miller had been the third member of this panel, but his death occurred more than six months before the panel’s opinion in this case was announced, and he did not participate in the decision.
. This admission by the two-Judge panel effectively conceded the propriety of Doss’ conviction under Count III; because the sentences on Counts III and IV run concurrently, application of the concurrent sentence rule would obviate the necessity to consider Doss’ arguments on Count IV. Barnes v. United States, 412 U.S. 837, 848 n. 16, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Burkhart, 529 F.2d 168, 169 (6th Cir. 1976); and Ethridge v. United States, 494 F.2d 351 (6th Cir.), cert. denied, 419 U.S. 1025, 95 S.Ct. 504, 42 L.Ed.2d 300 (1974).
The majority opinion, however, by sua sponte resort to evidence not part of the record in the present appeal, indicates that the concession of the panel “may” not be correct. We think the concession was correct and that it may not properly be questioned by resort to evidence dehors the record, in violation of Fed. R.App.P. 10(a), as the Court has done by footnote 2 of the majority opinion, which reads in part as follows:
The two secret indictments, one for causing Nolan Ray Williamson and Paul E. Patterson to possess with intent to distribute 20,000 amphetamine capsules, and the other for causing Paul E. Patterson to possess and transport $1,000 of counterfeit currency, were tried at the same time. We take judicial notice of the Joint Appendix in these cases. It is a part of this court’s record in relation to appeals of guilty verdicts in the joint trials in United States v. Doss, No. 74-1722 and No. 74-1723, affirmed January 9, 1976, by unpublished per curiam.
The majority opinion is replete with many pages of testimony copied from the Joint Appendix in the case of United States v. Doss, which involved the trial of Doss on the two secret indictments and his conviction which was affirmed by this Court on January 9, 1976 in cases Nos. 74-1722 and 74-1723.
The taking of judicial notice sua sponte by an appellate court in its judgment, and without notice to the parties and without giving them an opportunity to be heard, was in violation of Fed.R.Evid. § 201(e). See also 21 Federal Practice and Procedure, Wright & Graham, § 5110 p. 527 (1977); American Law Institute, Model Code of Evidence, Rule 806(4) and Rule 804(1) and Comments.
No pretense has been made that any notice was ever given to the parties or their attorneys that the Court of Appeals was going to take judicial notice, and they have not had any opportunity to be heard. No judicial notice of anything was taken by the two-Judge panel which initially decided the appeal. The appeal had been pending for more than two years before this Court, by its judgment, without hearing or notice, took judicial notice.
Fundamental fairness, as well as due process, requires that such notice should have been given and a hearing provided. United States v. Damato, 554 F.2d 1371, 1373, 1374 fn. 9, 10 (5th Cir. 1977).
None of the cases relied upon by the majority in footnote 2 held that judicial notice could be taken of outside evidence or records without notice to the parties and an opportunity to be heard. In four of the cases, namely, Shuttles-worth v. Birmingham, 394 U.S. 147, 157, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); New York Indians v. United States, 170 U.S. 1, 32, 18 S.Ct. 531, 42 L.Ed. 927 (1893); International Bhd. of Teamsters v. Zantop Air Transport Corp., 394 F.2d 36, 40 (6th Cir. 1968); and Paul v. Dade County, 419 F.2d 10, 12 (5th Cir. 1969), cert. denied, 397 U.S. 1065, 90 S.Ct. 1504, 25 L.Ed.2d 686 (1970), the parties were given the opportunity to and did argue the question whether the court should take judicial notice of certain records outside of the record of their appeal. Where an Appellate Court desires sua sponte, to augment the record by new evidence, not offered in the trial court, the parties should be afforded a hearing on whether judicial notice should be taken, an opportunity to examine the new evidence and comment thereon and to offer any new evidence to rebut the same.
The grand jury proceeding which is the subject of the present appeal took place on November 13, 1972. It was not until September 24, 1973 however, that the trial commenced in the District Court on the two sealed indictments against Doss resulting in his convictions on October 5, 1973.
The majority has taken judicial notice of testimony contained in the Joint Appendix filed in this Court in the appeals from the convictions of Doss under the two sealed indictments and copied many pages therefrom in the majority opinion. No doubt the purpose was an endeav- or to show by extraneous new evidence improper questions propounded to Doss and the use of two grand jury proceedings to obtain evidence to assist the prosecution in the trial of Doss under the two sealed indictments.
*286The Per Curiam opinion of this Court in the appeals from the conviction of Doss on the two sealed indictments reveals however, that no issue was ever raised in those cases over the conduct of or the propriety of the grand jury proceeding.
Other grounds of error were relied upon exclusively and we held in a per curiam opinion, .that no prejudicial error occurred in his trial and convictions, and we affirmed the judgments of conviction. It has become final and constitutes res adjudicata of all issues adjudicated therein. United States v. Doss, Nos. 74-1722-23 6th Cir., decided Jan. 9, 1976. We are therefore at a loss to know the purpose of the majorities’ reliance on the evidence contained in the joint appendix since it had no bearing on either the trial of Doss on the sealed indictments or on his perjury convictions.
If changes are desirable to be made in the historic procedures of grand juries, this should be the function of Congress and not of appellate courts.
We ought not to condone perjury before a Grand Jury.
. Doss did have benefit of counsel, but his counsel was present outside the grand jury room. Therefore, the majority’s reference to “without counsel present” must mean that the majority is now advancing the requirement that counsel must be present in the grand jury room where a substantial purpose of the grand jury proceeding is to question the defendant “secretly” and where he is not informed that he is already under indictment.
. As noted by Justice Brennan in United States v. Mandujano, 425 U.S. 564, 587-88 n. 5, 96 S.Ct. 1768, 1782, 48 L.Ed.2d 212 (1976), (Brennan, J., concurring in judgment):
5 “Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev. 433, 457 — 458, 467-^73 (1935). Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. ‘The law will not suffer a prisoner to be made the deluded instrument of his own conviction.’ 2 Hawkins, Pleas of the Crown, c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands.” Watts v. Indiana, 338 U.S. 49, 54 [69 S.Ct. 1347, 1350, 93 L.Ed. 1801, 1806] (1949).
. The majority’s characterization of this quote as dictum is incorrect. In George the Government was using the grand jury to investigate new matters, not matters under a pending indictment. The above quote was a necessary ingredient to this Court’s holding that the grand jury’s investigation was proper.
. On the same day that Wong was decided, the Supreme Court in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977), held that the testimony given by a grand jury witness, who was a putative or potential defendant and who was given Miranda -like warnings prior to his testimony, “may be used against him in a later prosecution for a substantive criminal offense,” even though “the witness was not informed in advance of his testimony that he is a potential defendant in danger of indictment.” Id. at 1816.