¶1Mr. Chester C. Shore, Washington, D. C., for appellant. Mr. Jack Wasserman, Washington, D. C. (appointed by this Court) was on the brief for appellant.
¶2Mr. William S. Block, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
¶3Before BAZELON, Chief Judge, TAMM, Circuit Judge, and MATTHEWS,* Senior Judge, U. S. District Court for the District of Columbia.
¶6JUDGMENT
¶7This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.
¶8On consideration thereof, It is ordered and adjudged by this Court that the judgment of the District Court appealed from in this cause is hereby affirmed.
¶10(dissenting):
¶11I would reverse this conviction because the trial judge refused to grant appellant a half-day continuance in order to obtain the testimony of an eyewitness.1
¶12Appellant was indicted on four counts: (1) robbery and (2) assault with a dangerous weapon on one Hancock, and (3) robbery and (4) assault with a dangerous weapon on one Hil-liard. The alleged crimes took place one night at a gas station at which Hancock was a customer, and Hilliard an attendant. At the beginning of the trial, the Government’s motion to dismiss counts three and four of the indictment was granted. Only then did appellant and his appointed counsel learn that Hilliard would not be called by the Government.
¶13The first day of the trial Hancock testified that appellant robbed and assaulted him. Appellant took the stand to deny the crime, and to offer an alibi. At the beginning of the second day of trial (a Friday), appellant’s counsel, recognizing that the case would otherwise go to the jury that afternoon, asked the judge to continue the case to Monday so that Hilliard could be brought to court. Counsel explained that he had located Hilliard for the first time the previous evening. The delay, he said, was due to his and appellant’s confusion about the witness’s name and his whereabouts.2 Counsel argued that Hilliard’s testimony was “very important”, but he did not say what he expected the witness to say. The prosecutor did not oppose a continuance. Moreover he advised the court that:
¶14The reason the government didn’t call Wesley Hilliard is because he and the defendant are apparently good friends [. E]ven though Hilliard was standing there beside the robber he claimed he couldn’t identify him[.] I later found out they are apparently cousins or some relatives or something to that effect. From talking to Hil-liard I got the impression he is going to be hostile to the government and doesn’t want to put the finger on a good friend. That is the reason the government didn’t call him.
¶15The trial judge refused the continuance apparently because appellant and his counsel had not been sufficiently diligent in trying to reach Hilliard before trial. *973In Neufield v. United States we said :3 A party seeking a continuance must make a showing that the same is reasonably necessary for a just determination of the cause. If the continuance is sought for the purpose of securing the attendance of witnesses, it must be shown [1] who they are, [2] what their testimony will be, that it will be relevant under the issues in the case and competent, [3] that the witnesses can probably be obtained if the continuance is granted, and [4] that due diligence has been used to obtain their attendance for the trial as set.
¶16Here defendant’s counsel advised the court of the witness’ name and his availability ([l]-[3]). Counsel did not describe the testimony he expected to elicit but the court had already been advised by the Government that Hilliard, an eyewitness who knew appellant before the hold-up, would say that he could not identify appellant as the robber ([2]). Finally, the defense exercised “due diligence”: before trial the defendant did not or could not tell his counsel where to find Hilliard, and, in any event, counsel could reasonably have expected the Government to call Hilliard ([4]). At all events, the obvious importance of the testimony and the short delay involved required a continuance as a matter of elemental fairness. “ … [A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” 4
¶17Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
¶18ORDER
¶19On consideration of appellant’s suggestion for rehearing en banc, it is
¶20Ordered by the Court en banc that appellant’s aforesaid suggestion is denied. Statement of Circuit Judge LEVEN-THAL as to why he denied rehearing en banc.
¶21LEVENTHAL, Circuit Judge:
¶22Since the court acted by order without opinion, and there is a dissenting opinion, I think it appropriate to explain that I have voted to deny rehearing en banc on the basis of the colloquy at Tr. 40, set forth in the Government’s brief on the merits (p. 6) indicating that the District Judge who refused to grant a continuance in the middle of trial pointed out to defense counsel “You had two months.” That is, there had been a period of two months after he learned of the whereabouts of Hilliard, the gas station attendant, before trial began. This does not completely dispose of the problems in the case, but identifies it as one involving discretion of the trial judge not meriting en banc review. Statement of Chief Judge BAZELON as to why he would grant rehearing en banc.
¶23BAZELON, Chief Judge:
¶24I would grant rehearing en banc for the reasons stated in my dissent from the court’s decision. As to the point mentioned by Judge Leventhal, it seems to me that defense counsel’s statement at page 40 of the transcript meant only that he had known for two months that Hilliard, the eye witness, was in the army. But it was not until after the first day of the trial that defense counsel knew exactly where Hilliard was. See the colloquy quoted in footnote 2 of my dissenting opinion. And in any event, defense counsel had every reason to expect that Hilliard would be called as a Government witness, and did not learn until just before the trial that the counts involving Hilliard would be dropped. *974This point was not even contested by the Government in this court. To expect more diligence of appointed counsel in this situation is as unreasonable as it is unrealistic.
¶25In addition, I am disturbed by another aspect of this case. So far as the record before us reveals, it would appear that the Government withheld the information in its possession that Hilliard could not identify appellant as the robber. See generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 96-102, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring). If this should prove to be so, relief may be available on collateral attack, see, e. g., Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964), even though the point was not urged in the present proceeding, Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).