(concurring) :
I concur in the decision and in the opinion written for the court by Judge Browning. I express no opinion on any of the issues discussed in Judge Browning’s separate opinion for the reason that, as his opinion for the court indicates, it is unnecessary to do so in this case.
BROWNING, Circuit Judge(separate opinion):
Some additional comment seems to me appropriate on two of the subjects dealt with in the majority opinion.
I
Although it is unnecessary to decide in this case whether it would be reversible error to deny defendant’s counsel access to factual assertions in a presentence report upon which the sentence was based, it should now be said that due process may require some form of disclosure of the presentence report to the defense.
In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the Court held that a sentence based upon an “extensively and materially false” factual foundation “which the prisoner had no opportunity to correct by the services which counsel would provide * * * renders the proceedings lacking in due process.” 334 U.S. at 741, 68 S.Ct. at 1255. Since counsel is powerless to correct errors of which he is unaware, nondisclosure would appear to be equivalent, in practical effect, to lack of counsel. It would seem anomalous to hold that although a sentence based upon erroneous information which counsel could correct violates due process, counsel need not be given access to that information.1
*614The Advisory Committee on Sentencing and Review of the American Bar Association Project on Minimum Standards for Criminal Justice reached the same conclusion from similar premises underlying Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), which involved disclosure to a child’s attorney of the contents of a “Special Service” file which would be available to a juvenile court judge in determining whether to waive jurisdiction and remit the child to the district court for criminal prosecution.2 The committee stated, “the language of the Kent opinion strongly supports the conclusion that disclosure was necessary in order to provide the effective assistance of counsel to which the child was entitled at the waiver hearing. No less is a defendant at sentencing entitled to the assistance of counsel, and no less should that assistance be provided in a context where it can be effective. Sentencing on the basis of undisclosed factual information is inconsistent with this objective.” ABA Institute of Judicial Administration, Sentencing Alternatives and Procedures 223 (Tent.Draft 1967).3
Disclosure would serve other important affirmative purposes, in addition to protecting the defendant’s constitutional rights. Convicted persons, the courts and other agencies concerned with their proper handling,4 and society as a whole, have the strongest interest in assuring the completeness and accuracy of presentence reports. “Despite the competency and high ideals of the probation service, which no one challenges, erroneous information can and does find its way into the reports. As Judge George L. Hart, Jr., has said in an address to the District of Columbia Sentencing Institute, ‘We all recognize that errors may creep into presentence reports and that these errors may be relied on by the judge in determining sentence.’ ” Higgins, Confidentiality of Presentence Reports, 28 Albany L.Rev. 12, 27 (1964) (footnotes omitted).5 “As a practical *615matter,” such errors may be detected and corrected “only by some provision for disclosure or partial disclosure of the report to the defense.” 8 Moore, Federal Practice ¶ 32.03[3], at 32-17 (1968).
For the reasons summarized here, and others, the ABA Advisory Committee on Sentencing and Review unanimously adopted the following standard: “Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.” Id. at 213. All but one member of the committee further agreed that “[T]he simplest and fairest method of implementing this principle is to permit the parties to inspect the report.” Id. at 219. The committee concluded: “This principle should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.” Id. at 213-14. The same general conclusion was reached by The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 20-21 (1967). Granted a power in the sentencing judge to withhold information in exceptional cases, no policy would appear to be served by a blanket rule permitting nondisclosure in all cases.
It is true that recently amended Rule 32(a), Federal Rules of Criminal Procedure, permits rather than requires the sentencing court to disclose all or part of the material contained in the presentence report to defendant or his counsel. 383 U.S. 1108 (1966). The amendment, however, was clearly intended to encourage disclosure. As the Advisory Committee stated, “It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences.” Advisory Committee Note to Proposed Rule 32(c) (2), Federal Rules of Criminal Procedure, 39 F.R.D. 193, 194 (1966).6
The grant of discretion “contemplates a deliberate judgment in the circumstances of the particular case * * Barron & Holtzoff, Federal Practice & Procedure 143 (1967 Supp.). It does not follow from the existence of discretion that denial of disclosure may not be reversible error, without regard to the contents of the report and its impact upon the accused. Williams v. *616People of State of New York, 337 U.S. at 252, n. 18, 69 S.Ct. 1079; Marano v. United States, 374 F.2d 583, 585, n. 3, 586 (1st Cir. 1967).
Moreover, as Justice Black has said, it is “reasonably certain” that the Court’s transmittal of the Amended Rules to Congress “does not carry with it a decision that the amended rules are all constitutional.” 383 U.S. 1032 (1966). Recent history makes this clear.7
II
As the majority opinion states, the deterrence rationale of the exclusionary rule required the court to refrain from considering the illegally seized evidence in sentencing Verdugo. It should be noted that this result would be compelled by other considerations underlying the exclusionary rule, even if it were not clearly required for the purpose of deterring illegal searches.
Language in Mapp and earlier cases cited in that opinion (particularly Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)), indicates that the exclusionary rule is part of the constitutional right because subsequent use of illegally seized evidence constitutes, in itself, a further violation of the victim’s right of privacy, which cannot be regarded as encompassing only the right to be free of the initial unlawful intrusion. 367 U.S. at 647, 648, 655-656, 81 S.Ct. 1684. In Justice Holmes’ words, “If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used.” Dodge v. United States, 272 U.S. 530, 532, 47 S.Ct. 191, 192, 71 L.Ed. 392 (1926).8
The exclusionary rule has also been traced to the intent of the Framers, for “Surely those who drafted the constitutional provisions did not anticipate that the community should be permitted to reap an advantage that could be secured only by violating them.” Allen, Federalism and the Fourth Amendment, The Supreme Court Review 34 (1961).9 This rationale, too, would require the unyielding rejection of illegally seized evidence without regard to deterrent effect.
Mapp suggests that the exclusionary rule rests upon the privilege against compelled self-incrimination. 367 U.S. at 646, 647, 656, 81 S.Ct. 1684; see also 367 U.S. at 661-666, 81 S.Ct. 1684 (Black, J., concurring).10 On this premise, exclusion without regard to deterrent effect would seem required whenever, as in this ease, the unlawfully seized evidence inculpates the accused in an offense other than that for which he stands convicted.11 If the court were free to consider the suppressed evidence for the purpose of sentencing, suppression for the purpose of trial might be worse than useless to the accused, serving only to deny him the benefit of a trial for the separate offense.
This is illustrated by the record in the present case, for Verdugo was sentenced as if he had been convicted of the *617count in the indictment which rested upon the suppressed evidence, and which had therefore been dismissed.12
It is no answer to this Fifth Amendment argument to say that sentencing, unlike trial, is concerned with rehabilitation of the accused, rather than with guilt. Whatever hope we may have for the future, retribution persists as an accepted element of sentencing as we now know it.13
Exclusion is also indicated, without reference to deterrence, for the preservation “of judicial integrity,” a rationale mentioned in Mapp (367 U.S. at 659, 81 S.Ct. 1684), and emphasized in other cases.14 This reasoning postulates that use by the court of illegally seized evidence would make the court party to the offense against the Constitution. It is difficult to see how judicial use of such material for sentencing would be any less lawless than judicial use to obtain a conviction.
. United States v. Maroney, 355 F.2d 302, 310 n. 10 (3d Cir. 1966) ; Smith v. United States, 223 F.2d 750, 754 (5th Cir. 1955), rev’d on other grounds 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1958) ; 8 Moore, Federal Practice ¶ 32.03 (1968). Cf. Marano v. United States, 374 F.2d 583, 585 n. 3 (1st Cir. 1967) [but see United States v. White, 382 F.2d 445, 449-450 (7th Cir. 1967)].
The Court held in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), that the sentencing judge is not confined to consideration of only such evidence as would be admissible in determining guilt, and that the defendant is not entitled to confront and cross-examine the source of the court’s information. But the trial court had disclosed the facts upon which the sentence was based (337 U.S. at 244, 69 S.Ct. 1079), and the consequences of a refusal to disclose were therefore not presented, as the Court specifically noted in Williams v. State of Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) ; and Specht v. Patterson, 386 U.S. 605, 606, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). See Rubin, Sentences Must Be Rationally Explained, 42 F.R.D. 203, 215-216 (1967) ; Higgins, Confidentiality of Presentence Reports, 28 Albany L.Rev. 12, 19-20 (1964) ; Note, 58 Colum.L.Rev. 702, 712-13 (1958). As the two author-
*614ed articles note, several courts have misread the Williams opinion in this respect. See, e. g., Powers v. United States, 325 F.2d 666, 667 (1st Cir. 1963) ; Hoover v. United States, 268 F.2d 787, 790 (10th Cir. 1959) ; Friedman v. United States, 200 F.2d 690, 697 (8th Cir. 1952). Cf. United States v. Fischer, 381 F.2d 509, 511 (2d Cir. 1967). See ABA Institute of Judicial Administration, Sentencing Alternatives and Procedures 224 (Tent.Draft 1967).
In Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the Court held that failure to ask a defendant represented by counsel if he had anything to say before sentencing was not a jurisdictional or constitutional error cognizable on collateral attack. The Court was careful to note, however, that it was not suggested “that in imposing sentence the District Judge was either misinformed or uninformed as to any relevant circumstances.” 368 U.S. at 429, 82 S.Ct. at 472. And plainly it does not follow that, because defendant’s right to make a personal statement at the time he is sentenced is not constitutional in source, due process does not require that he have an opportunity to contest — and implicitly to know — the factual allegations on which his sentence is based. But cf. United States v. Fischer, 381 F.2d 509, 511 (2d Cir. 1967).
. It should be noted, however, that the Court expressly confined its holding to cases arising under the District of Columbia Juvenile Court Act. 383 U.S. at 556, 86 S.Ct. 1045.
. See also United States v. Myers, 374 F.2d 707 (3d Cir. 1967) ; Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 Harv.L.Rev. 904, 917 (1962) ; Pye, The Administration of Criminal Justice, 66 Colum.L.Kev. 286, 296 (1966). The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 20 (1967), states: “A serious obstacle to the full participation by defense counsel in the sentencing process is that in many jurisdictions he does not have access to the presentence report.”
. See note 14, majority opinion.
. The quoted source continues, “A survey of seventeen defense attorneys in the District of Columbia disclosed, inter alia, that serious mistakes often appear in these reports. Two lawyers cited cases in which the offender’s sentence was in part based on an alleged criminal record when, in fact, the offender had no such *615record. Another counsel cited a case where an unusually severe sentence was imposed for a robbery conviction. Three post-sentencing motions for the reduction of sentence were denied and then, inexplicably, probation was granted. Others of the defense counsel surveyed cited erroneous statements made by judges on the basis of faulty reports.” See also examples and authorities cited, ABA Institute of Judicial Administration, Sentencing Alternatives and Procedures 218-19 (Tent.Draft 1967). In Townsend v. Burke, The Supreme Court also alluded to the danger — which could be irremediable without disclosure — that the sentencing judge himself could seriously misconstrue the facts on which the sentence was based. 334 U.S. at 740, 68 S.Ct. 1252.
. See also United States v. Fischer, 381 F.2d 509, 512 (2d Cir. 1967) ; Bannister v. United States, 379 F.2d 750, 753-754 (5th Cir. 1967).
. See, e. g., 1966 Amendments to Rule 44, Federal Rules of Criminal Procedure, necessitated by intervening Supreme Court decisions. 8 Moore, Federal Practice ¶ 44.01 — 44.02, at 44-2 — 44-7 (1968).
. See also Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ; Cunningham v. Heinze, 352 F.2d 1, 4 (9th Cir. 1965) ; Cipres v. United States, 343 F.2d 95, 98 (9th Cir. 1965). Cf. Burgett v. State of Texas, 389 U.S. 109, 114-115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
. Cf. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 914 n. 9, 50 A.L.R.2d 513 (1955) ; Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319; Schwartz, Excluding Evidence Illegally Obtained: American Idiosyncracy and Rational Response to Social Conditions, 29 Modern L.Rev. 635, 636 (1966).
. See also One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 703-705, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (Justice Black concurring) ; Ker v. State of California, 374 U.S. 23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
. Arguably, a different result could be reached if the offense involved were the same. But cf. Thomas v. United States, 368 F.2d 941 (5th Cir. 1966).
. When Verdugo was sentenced, the following proceedings occurred:
THE COURT: Remanded to custody of the Attorney General or his authorized representative for the term of 15 years on the first count, 15 years on the second count, the sentence is to run concurrently with each other.
U.S. ATTORNEY: It is my impression that there was only one count outstanding.
THE COURT: Did we only go to trial on one count?
U.S. ATTORNEY : Yes, Your Honor. I think the defendant should be recalled.
THE COURT: Mr. Murphy’ [Verdugo’s counsel]
MR. MURPHY: Yes, Your Honor?
THE COURT: The original indictment shows two counts.
The original indictment in this case was framed in two counts in which the defendant was named in both counts. At the time of sentencing, the Court inadvertently based sentence on the two counts rather than the single first count of which the defendant was convicted by the jury, so the sentence is corrected at this time to show imposition of a single sentence of 15 years on the first count, the offense of which the defendant was convicted by the jury at the time of trial.
MR. MURPHY: Do you understand that, Mr. Verdugo? Only one count?
THE DEFENDANT: Yes.
U.S. ATTORNEY: May the record show the second count was dismissed prior to trial?
. “Retribution or social retaliation, though persistently criticized by modern advocates of a progressive penology, continues to be a major ingredient of our penal law and of our correctional system.” Tappan, Crime, Justice and Correction 241 (1960). See also The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 2 (1967) ; ABA Institute of Judicial Administration, Sentencing Alternatives and Procedures 62 (Tent.Draft 1967).
. See, e. g., Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ; Weeks v. United States, 232 U.S. 383, 391, 394, 34 S.Ct. 341 (1914). As Justice Stewart stated in Harrison v. United States, 392 U.S. 219, 224, n. 10, 88 S.Ct. 2008, 2011, 20 L.Ed.2d 1047 (1968) : “But it is not deterrence alone that warrants the exclusion of evidence illegally obtained — it is ‘the imperative of judicial integrity.’ [Elkins v. United States, 364 U.S. 206, at 222, 80 S.Ct. 1437.] The exclusion of an illegally procurred confession and of any testimony obtained in its wake deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government’s illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law.” See also Lee v. State of Florida, 392 U.S. 378, 384-386, 88 S.Ct. 2096, 2100-2101, 20 L.Ed.2d 1166 (1968).