(dissent-
ing) :
Our reports record countless instances where a man has been convicted principally upon the testimony of another at least as guilty, who has received a light *554sentence, has remained unsentenced or, as in this case, has not even been indicted. In all likelihood there is no viable alternative to such prosecutorial discretion, although the contrary has been strongly argued. See Davis, Discretionary Justice, Ch. 7 (1969). However, when the prosecution proceeds in this manner, the defendant must be given full opportunity to bring out just what favors the witness has already received from the government and what further ones he may be expecting. The defendant is not limited to cross-examination in attempting to elicit this information and is neither required to accept the witness’ statement of ignorance of how kind the government had been to him nor bound to submit other direct evidence of knowledge. Proof of what the government has done may convince the jury that the witness must have known of it, thereby casting him as a liar in his denial as well. This is the wise teaching of such cases as Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); United States v. Lester, 248 F.2d 329, 332-335 (2 Cir. 1957); and United States v. Masino, 275 F.2d 129,133 (2 Cir. 1960).
The material in the IRS file would have permitted the jury to conclude they had not heard by any means the full story of the government’s dealings with Matthews and of what he knew them to be. First of all, there is the fact that in the very next month after he had gone with his story to the IRS Inspection Service, the IRS reversed its prior decision and decided to “53” the penalty assessment on the ground of “hardship.” The jury could have concluded that this was no mere coincidence and that Matthews knew it. Second, while Matthews admitted the omission of his house in Pelham Manor from the financial statements he had furnished the Service and claimed he expected to be indicted for this perjury, the jury might have regarded the episode as considerably more sinister had it known the full facts in the IRS file. Agent Batt had made a Potential Fraud Referral Report on March 3, 1967, and, reporting on the conference at which Matthews supplied his fourth perjurious statement on February 27, 1967, noted “Stated he did not own property.” Yet on March 16 the Intelligence Division rejected the referral, saying among other things that there was no indication that the omission of the real estate, which constituted well over 90% of Matthews’ assets, was intentional! Surely a jury might rationally infer that this surprisingly favorable action of the Service had been brought to Matthews’ attention and that he had every reason to expect that, with continued cooperation on his part, he would not be indicted for perjury. Finally, there was a record of unusual leniency with respect to the Pelham Manor house. On March 28, 1967, Matthews was directed to produce a buyer by May 31, 1967, otherwise the house would be seized and sold. On May 29, the target date was adjourned to October 31, 1967, because “The corporate accounts and other individual accounts are now under investigation by the Inspection Service,” the division to which Matthews had gone with the story of the bribery in September 1966. On October 9, 1967, a new plan of action was adopted, “Case is still under investigation action is temporarily suspended— pending disposition of any criminal aspects in the case,” and the target date was adjourned to March 31, 1968. Possible criminal charges against Matthews would afford no reason for not realizing on a salable house for part of the large amounts owed, especially since the Matthews’s did not live in the house. The jury could infer that the “criminal aspects” were those concerning Campbell and that Matthews knew he was receiving consideration with respect to the house because of his expected testimony in the instant case.
Beyond all this is the point that what we have here is not a case where the trial judge exercised his discretion after reviewing the documents but one where he declined even to examine them once defense counsel had conceded that the file did not “contain Matthews’ signa*555ture asking for this treatment and promising to cooperate if he received it” or “show that these decisions were arrived at after a conference with Matthews.” Despite counsel’s concessions his offer of proof sufficiently demonstrated the relevancy of the files, and he was entitled to admission at least of the parts I have summarized unless the trial judge, in the exercise of his discretion, determined to exclude them as unduly time consuming even under the stringent standards of Gordon v. United States, supra, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447. I do not believe that, applying the proper legal standard, he would — or even could — have done so.
It may well be that giving the defense the fullest latitude with respect to the IRS file would not have helped Campbell ; indeed I doubt that it would. But an occasional reversal may be the only means to ensure the defense full opportunity to bring out the interest of an accomplice and convince the prosecution that no efforts should be made to obstruct this.