(dissenting in part).
I regret that I cannot fully agree with my brothers of the majority. I do not express a view that a new trial should be granted, but would remand the case to the District Judge for a hearing upon the issues raised by the affidavits supporting, and those opposing, the motion for new trial.1
Defendants file numerous affidavits describing conduct of jurors and United States Marshals which, if true, denied defendants their constitutional right to trial by jury. If the identified jurors and the marshals did half of what is charged to them, the Hoffa trial was, as far as they were concerned, an idle and frivolous ceremony; guilt of Hoffa and his co-defendants was assumed by some of them, and for nearly all of the male jurors the period of their sequestration provided the occasion and opportunity for revelry and illicit sexual indulgence. Neither the District Judge’s opinion nor the government’s address to us suggests that such conduct, if it actually took place, could be viewed otherwise than as depriving the defendants of a fair trial.
If the accusing affidavits are untrue, the filing of them constitutes brazen criminal activity — -false swearing by the affiants (some eleven different deponents make up the company of possible false swearers) and the deliberate subordination of perjury by others. Their execution and the procuring of them, in such circumstances, would constitute as vicious and despicable an attempt to undermine the integrity of our entire court system as the original charges of jury tampering. But even though we may entertain personal belief that the mentioned affidavits of the prostitutes and others were perjured, we may not, in my view, approve a disposition of such serious charges solely upon the affidavit denials of the accused jurors and marshals. The very gravity of the situation forbids its easy dispatch.
While the District Judge discussed the question of the delay in making the involved motions and whether the allega*867tions contained in the affidavits could properly be regarded as “newly discovered evidence,” he went on to dispose of the motion as follows:
“ * * * the Court can and will however decide the factual issues raised by the present motion for new trial on the basis of the affidavits and counter-affidavits filed herein. The law is well settled that a motion for new trial based upon newly discovered evidence may be decided by the Court upon the affidavits and counter-affidavits filed in support and opposition to the motion.” (Emphasis supplied.)
In affirming him, my colleagues say,
“It has long been settled that a Court may hear a motion for a new trial based on newly discovered evidence and decide it on affidavits. Where affidavits and counter-affidavits are filed, the Court may adopt findings of fact.” (Emphasis supplied.)
I must respectfully disagree that there is such a broad rule properly applicable to the type of situation we deal with here. The opinions recited as supporting the rule relied upon, United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946); United States v. Astore, 309 F.2d 144 (CA 2, 1962); Lyles v. United States, 272 F.2d 910 (CA 5, 1959); Stern v. United States, 260 F.2d 365 (CA 6, 1958); United States v. Troche, 213 F.2d 401 (CA 2, 1954); Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633 (1942), cert. den. 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145; Hillman v. United States, 192 F. 264 (CA 9, 1911), cert. den. 225 U.S. 699, 32 S.Ct. 834, 56 L.Ed. 1263; United States v. Crowder, 351 F. 2d 101 (CA 6, 1965), are not apposite in the context of this case. In the main, they are decisions where the newly discovered evidence consisted of post-trial declarations by individuals that testimony given by prosecution witnesses was perjured, evidence that would add to or corroborate defense testimony, or evidence by a prosecution witness recanting his trial testimony. Generally, the judge hearing the motion had seen and heard the witness whose trial testimony was challenged by the newly discovered evidence.
The opinion most cited for the claimed permissibility of resolving factual issues presented by a motion for new trial upon affidavits is United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, supra, in which the factual issue presented was whether a prosecution witness had testified falsely. The charges of false swearing were made in affidavits supporting motions for new trial; opposing affidavits were filed by the government. The trial judge denied a first motion and his conduct was described by the Supreme Court as follows:
“The trial judge in a carefully prepared opinion covering fifty-six pages of the record, gave thoughtful consideration to each affidavit, reached the conclusion that none of them showed that Goldstein had perjured himself, and found both from the new affidavits and his own knowledge of the original six-weeks trial, that Gold-stein’s testimony was true. The motion for a new trial was consequently denied.” 327 U.S. at 109, 66 S.Ct. at 465. (Emphasis supplied.)
A second motion for new trial, based upon further newly discovered evidence, was also denied by the trial judge. In approving this conduct, the Supreme Court said,
“The trial judge’s findings were supported by evidence. He had conducted-the original trial and had watched the case against Johnson and the other respondents unfold from day to day. Consequently the trial judge was exceptionally qualified to pass on the affidavits. The record of both the original trial and the proceedings on the-motions for a new trial shows clearly that the trial judge gave the numerous, elements of the controversy careful and honest consideration.” 327 U.S. at 112, 66 S.Ct. at 466. (Emphasis supplied.)
The critical difference between Johnson and the case before us lies, as it does *868in the other cases relied upon by the majority, in the fact that the charged misconduct there involved — false testimony —occurred within the immediate view and attentive hearing of the trial judge. The judge had also seen and heard the testimony of all of the witnesses sworn at the trial. This evidence was part of the material available to the trial judge in resolving the question of whether the accused witness had testified falsely. I do not read Johnson as holding that an issue of fact such as is presented by the competing affidavits filed in this case can be resolved solely by consideration of the affidavits.
In United States v. Crowder, supra, and in Gordon v. United States, 178 F.2d 896 (CA 6, 1949), cert. den. 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353, we were presented with situations analogous to the Johnson case — situations in which witnesses had testified at trial in the presence of the District Judge, and later gave recanting affidavits — situations not involved in the case before us. We said in Crowder:
“In this case the district judge heard Tucker’s testimony before the jury * * *. This same witness now has undertaken by affidavit to change his story * * * ” 351 F.2d at 104.
And we quoted from Lyles v. United States, supra, that:
“Ordinarily the district court may in its discretion determine a motion for new trial upon affidavits without more. Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 135 F.2d 633, 638. There are, however, exceptional cases in which an oral hearing should be granted. * * *” Id. at 104, 105. (Emphasis supplied.)
But notwithstanding the above language, the Fifth Circuit in Lyles reversed the district judge, who had denied a motion for new trial solely on the basis of the affidavits, and remanded the matter for an evidentiary hearing. A reading of Ewing v. United States, 135 F.2d 633 (CA D.C., 1942), cert. den. 318 U.S. 776, 63 S.Ct. 829, cited in Lyles leaves uncertain the contents of the affidavits there, but again they dealt with conduct observed in open court. Without further analysis of the other opinions relied on for the assertion that in this case it was proper to dispose of the motion solely upon the conflicting affidavits, my own study of them and their special facts persuades me that they do not support or announce the broad proposition of law relied on by the District Judge.
It should be noted that in disposing of an earlier motion for new trial charging misconduct by the jury, the District Judge took occasion to emphasize his own observations of the good conduct of the jury while in his presence, and his inquiries of the deputy marshals as to their proper care of the jurors. These observations were not included in his memorandum denying the motion here involved. But even had they been, that would not suffice: all of the misconduct now charged, if true, occurred outside of the courtroom and outside of the presence of the judge; the affidavits include statements that contrary to their responsibilities while they were sequestered, the jurors and marshals were in contact and communication with strangers to the case on trial. Prejudice to the defendants would be presumed if these events actually occurred. See Mattox v. United States, 146 U.S. 140, 148-50, 13 S.Ct. 50, 36 L.Ed. 917, 920, 921 (1892); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654, 656 (1954); Ryan v. United States, 89 U.S.App.D.C. 328, 191 F.2d 779, 780, 781 (1951).
I find no decision which provides clear precedent for the stand I take. However, in Wheaton v. United States, 133 F.2d 522 (CA 8, 1943) and in Richardson v. United States, 360 F.2d 366 (CA 5, 1966), the respective courts of appeals remanded for evidentiary hearing, charges of improper communication with a juror, made in motions for new trial. I concede that their facts provide some distinctions from the matters before us. They do, though, emphasize the importance of taking testimony to resolve issues arising from claims of extraneous *869interference with a jury’s consideration of a case. In remanding in Richardson, the Court said:
“The allegation of fact in the third ground of the motion that the witness Treherne engaged in a private conversation with one of the jurors must stand as confessed since no hearing was conducted. Prejudice will be assumed in the form of a rebuttable presumption. [citations omitted] In failing to conduct ‘a thorough inquiry * * * to determine exactly what * * * occurred’ before overruling the motion, the trial court abused its discretion.” 360 F.2d at 369.
Moreover, in numerous post-conviction applications for relief in habeas corpus and § 2255 matters, the United States Supreme Court has admonished repeatedly against disposing of factual assertions regarding constitutional wrongs without an evidentiary hearing. In Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941), the Court, dealing with a factual issue presented in a habeas corpus petition, said:
“On a hearing he [the defendant] would have the burden of sustaining his allegations by a preponderance of evidence. It is true that they are denied in the affidavits filed with the return to the rule, but the denials only serve to make the issues which must be resolved by evidence taken in the usual way. They can have no other office. The witnesses who made them must be subjected to examination ore tenus or by deposition as are all other witnesses. Not by the pleadings and the affidavits, but by the whole of the testimony, must it be determined whether the petitioner has carried his burden of proof and shown his right to a discharge. The Government’s contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence. On this record it is his right to be heard.” 312 U.S. at 286-287, 61 S.Ct. at 579. (Emphasis supplied.)
Such also is the rule of Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), which we followed in Scott v. United States, 349 F.2d 641, 643 (CA 6,1965). To the same effect, see Doyle v. United States, 336 F.2d 640, 641 (CA 9, 1964); Wright v. Dickson, 336 F.2d 878, 882, 883 (CA 9, 1964); Romero v. United States, 327 F. 2d 711, 712 (CA 5, 1964); Evans v. Eyman, 363 F.2d 540, 542 (CA 9, 1966); Del Piano v. United States, 362 F.2d 931, 933 (CA 3, 1966). While these cases do not involve motions for new trial on newly discovered evidence, they expose the law’s current and especial concern that claims of deprivation of constitutional rights be not summarily disposed of. In my view, it would be anomalous to have required an evidentiary hearing had the defendants chosen to present the identical charges now before us in a § 2255 petition, filed after they had been taken into custody, but to deny such a hearing on the present motion.2 3
Trial judges are not permitted to resolve issues of fact presented by opposing affidavits in summary judgment proceedings (6 Moore’s Federal Practice, § 56.11[3], p. 2163), and I am not aware of any other procedure which permits a trial judge to adjudicate essential and critical issues of fact solely upon his reading, and his own weighing of the relative probative worth, of conflicting affidavits.
Were my view to prevail, I would indeed share the regret of my colleagues and the District Judge that jurors be subjected to the annoyance, publicity and *870inconvenience that would be visited upon them by an evidentiary hearing. And I would regret the burden on the judiciary from repetitive efforts of one convicted of crime to escape the law’s punishment.3 But the law is patient and does not tire of examining into the question of fair trial. The now landmark case of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) involved the claim of unfair trial by one convicted of murder in the first degree. Townsend was convicted in 1955 and in the ensuing 12 years his charges of constitutional deprivation have been considered and reconsidered approximately 18 times by various levels of state and federal judicial authorities.4 As of the last of the appellate decisions set out in footnote 4, Townsend’s 1955 conviction was found to be without fault, but it is my understanding that application has since been made for further judicial scrutiny.
That I may entertain a personal belief that the spectacular story told by the affidavits produced by Hoffa and his co-defendants is pure fabrication and perjurious does not permit me to deny an evidentiary hearing. Such a hearing may indeed provide the best means of exposing and punishing a deliberate and sinister attempt to vitiate a jury’s verdict or, however unlikely, reveal a shocking disregard by the accused jurors and marshals assigned to safeguard them, of the solemn oaths they made and the responsibilities they accepted.
I will feel better if, when our processes have run their full course, it can be said that James Hoffa and his co-defendants were given no more, but no less, than the concern which today’s courts exhibit for the constitutional rights of even the most vicious and obviously guilty felons. In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the United States Supreme Court took occasion to say,
“Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.” 373 U.S. at p. 8, 83 S.Ct. at p. 1073.
In my opinion, a remand for an evidentiary hearing would not call for admission of the defendants to bail pending its completion. The initial impression of implausibility made by these extreme charges should preclude such action.
I would remand this matter to the District Court for an evidentiary hearing, limited, of course, to consideration of the charge of jury misconduct.
. I would not require any hearing on the charges made against the trial judge — one of our distinguished and able District Judges. The falsity of the charges made against him is, of course, within his personal knowledge.
. Were charges of the kind here involved made in habeas corpus or in a Section 2255 petition, the subject of diligence, so emphasized by my brothers of the majority, would be irrelevant in determining whether a hearing should be had. I do not think that the form of presenting such type of charges gives reality to the distinction relied upon by the majority opinion; we are dealing here not with the traditional type of motion for new trial, but one which in all pertinent respects fits more closely into the context of a habeas corpus proceeding.
. The United States Courts, however, are not without potent weapons to discourage these impositions. Their awesome power to punish for contempt or perjury, if courageously employed, will provide needed deterrents.
. Townsend’s conviction has been reviewed as follows: conviction affirmed, People v. Townsend, 11 Ill.2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (1956), cert. den., Townsend v. People of State of Illinois, 355 U.S. 850, 78 S.Ct. 76, 2 L.Ed.2d 60 (1957) ; post-conviction relief denied in Illinois state trial and Supreme Courts, cert, den., Townsend v. People of State of Illinois, 358 U.S. 887, 79 S.Ct. 128, 3 L. Ed.2d 115 (1958) ; post-conviction relief in federal District Court denied, appeal dismissed, United States ex rel. Townsend v. Sain, 265 F.2d 660 (CA 7, 1958), rev’d. and remanded, Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634 (1959) ; petition dismissed in District Court, aff’d. United States ex rel. Townsend v. Sain, 276 F.2d 324 (CA 7, 1960), cert. granted, Townsend v. Sain, 365 U.S. 866, 81 S.Ct. 907, 5 L.Ed.2d 859 (1961), rev’d. and remanded, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 945, 9 L.Ed.2d 770 (1963) ; decision of District Court ordering new trial rev’d., United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (CA 7, 1964), cert. den. Townsend v. Ogilvie, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965) ; motion to allow amendment of petition denied in District Court, aff’d., United States ex rel. Townsend v. Ogilvie, 360 F.2d 925 (CA 7, 1966), cert. den., Townsend v. Ogilvie, 385 U.S. 938, 87 S.Ct. 304, 17 L.Ed.2d 218 (1966).