(dissenting):
I agree that appellant’s charge of discriminatory prosecution must be rejected, but dissent from the dismissal of appellant’s claim that, by the surreptitious intrusion of a government agent into the defense camp, he was denied due process and the effective exercise of his right to represent himself.
It is undisputed that Swanson was a paid undercover agent of the government posing as a member of a tax protestors organization. It is admitted that he attended appellant’s trial in that capacity with the knowledge and approval of the IRS agent in Fresno associated with appellant’s case. It is furthermore conceded that during the trial he participated in discussions and meetings among the tax protestors, including appellant, both in the courtroom and, at the close of the trial each day, in the motel where the group stayed. The exact nature of his participation is disputed. Affidavits submitted by appellant assert that Swanson discussed appellant’s defense with appellant and his lay advisors, advised appellant regarding trial strategy, and urged him to take the stand. Swanson, by affidavit, admits that he attended conferences and meetings regarding the trial but asserts that he offered no advice.
Affidavits submitted by appellant also assert that Swanson was seen leaving appellant’s room when no one else was present and that certain defense papers were subsequently missing. Swanson denies breaking into and entering appellant’s room or removing his papers.
The majority correctly holds that appellant’s contention that his rights under the Fourth Amendment were infringed must be rejected in light of Hoffa v. United States, 385 U.S. 293, 300-03, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). The majority errs, however, in dismissing appellant’s Fifth and Sixth Amendment claims.
I.
The majority recognizes that the Fifth Amendment may be violated by introducing a government agent into the defense camp. As the majority states, “government intrusion into the private councils of a pro se defendant, struggling to oppose that government during a trial, for the purpose or with the result of gaining trial advantages offend[s] one’s sense of fair play and subvert[s] the proper administration of justice . . . . [and] may well constitute a denial of due process.” Yet the majority rejects appellant’s Fifth Amendment claim, holding that he was not even entitled to a hearing to inquire into the nature of the intrusion or its consequences.
The majority concludes that appellant did not make a sufficient showing that Swanson did in fact intrude into the councils of appellant’s defense, with the purpose or result indicated. Thus, the majority states that from reading the affidavits it is convinced that the trial court “was simply unimpressed and unpersuaded that any such reprehensible activity was engaged in.” The majority holds that appellant’s affidavits were deficient because they were “ambiguous and conjectural,” were “directly controverted” by affidavits filed by the government, and related to matters that “have little if anything to do with the basic issues of the law suit.”
The affidavits filed by appellant cannot be said to be “ambiguous and conjectural” with respect to the charge that Agent Swanson intruded into the councils of the defense and sought to influence defense strategy. Appellant’s own affidavit states that “the confidentiality *1197and privacy of myself and my counsel-lors was admittedly invaded by” Agent Swanson. The affidavit of Claire Kelley, one of appellant’s supporters, states “I saw and heard [Swanson] talking to [appellant] at the counsel table numerous times throughout the trial, discussing [appellant’s] defense and advising [appellant] on strategy. [Swanson] . . . was persistent and pushy in seeking out and talking to [appellant], I heard [Swanson] urge [appellant] to take the witness stand in his own defense.” The Kelley affidavit continues, “I was in Room 214 of the Golden Key Motel, which was used by the defense for discussing and planning of strategy when [Swanson] was also present and took part in the discussion and was privy to confidential information concerning the defense.” Although not as direct and categorical, the affidavit of William R. Dobslaw, Swanson’s roommate at the Golden Key, corroborates the affidavits of appellant and Kelley.1
The majority concedes that the Kelley affidavit sufficiently raised the specific charge that Swanson advised appellant to take the stand. This charge is disposed of by asserting that appellant was not prejudiced by his appearance as a witness. But it cannot be said with assurance that this violation of appellant’s Fifth Amendment rights was harmless beyond a reasonable doubt. Appellant’s ultimate hope was that the spirit of protest that motivated his actions might elicit a receptive response from one or more of the jurors. His decision to take the stand may well have had a critical effect upon the realization of this hope. It is impossible to know beyond a reasonable doubt that it did not. The reaction of the jurors to appellant as an accused engaged in presenting his own defense may have been quite different from their reaction to appellant as a witness, particularly under the prosecutor’s effective cross-examination.2 Moreover, this court ought not to speculate as to the prejudice that might have resulted from a clandestine government agent’s successful effort to influence the accused in a matter so fundamental to the defense as the decision to waive his privilege against self-incrimination, take the stand, and subject himself to cross-examination.
It is irrelevant that the affidavits submitted by appellant were contradicted by the affidavits filed by the government. The function of the affidavits was to determine whether relevant factual issues existed, not to resolve such issues. Machibroda v. United States, 368 U.S. 487, 493-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Wright v. Dickson, 336 F.2d 878, 882-83 (9th Cir. 1964). See also United States v. Guthrie, 387 F.2d 569, 572 (4th Cir. 1967); 8A Moore’s Federal Practice If 33.03[3], at 33-18. The affidavits filed by appellants made out a prima facie case that a government agent had actively participated in the councils of appellant’s defense and had sought to influence defense strategy. Since such *1198conduct would violate the Fifth Amendment, as the majority itself vigorously asserts, an evidentiary hearing was required to determine the facts. Appellant specifically requested such a hearing both in his motion3 and in argument to the district court. It was denied.
The majority appears to say that nothing is to be gained by remand for an evidentiary hearing on appellant’s due process claim generally because appellant has no valid defense on the merits of the criminal charge against him, and because (aside from the government’s claimed invasion of the defense camp) appellant was afforded a fair and full trial by the trial court.
Whatever one may think of appellant’s defense on the merits, he was and is entitled to a trial that comports with due process. The meticulous fairness of the trial judge is evident from the record, but as the majority so forcefully states, deliberate intrusions by the prosecution upon a pro se defendant’s private councils “offend one’s sense of fair play and subvert the proper administration of justice.” To paraphrase Mr. Chief Justice Burger in his concurring opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 467—68, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), a criminal trial is not a private matter; more is at stake than the interests of the accused. The public interest in the integrity of the judicial process, and in the appearance of justice, as well as its substance, require that sanctions be imposed upon the government for such corrupting conduct. See United States v. Rosner, 485 F.2d 1213, 1227 (2d Cir. 1973); United States v. Rispo, 460 F.2d 965, 977 (3d Cir. 1972).
II
The greater part of the majority opinion deals with appellant’s reliance upon O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (1953); and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), in which new trials were ordered because the government had intruded into the confidential relationship between the accused and his counsel by electronic surveillance or through government agents. The majority rejects appellant’s reliance upon these and similar authorities primarily on the ground that they are based upon interference with the Sixth Amendment right to effective assistance of counsel, and appellant in this case waived that right.
This facile disposition neglects the fact that the accused in a criminal case has a constitutional right to defend himself that is equal in dignity to his constitutional right to counsel. “Implicit in both [the Fifth and Sixth] amendments is the right of the accused personally to manage and conduct his own defense in a criminal case.” United States v. Platt-ner, 330 F.2d 271, 274 (2d Cir. 1964). “The right to counsel and the right to defend pro se in criminal cases form a single, inseparable bundle of rights, two faces of the same coin.” Id. at 276. “A defendant in a criminal case not only has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case.” Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), quoted in United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973).
The vice of government intrusions into the relationship between the accused and his trial lawyer is not simply a corollary of the general principle that the lawyer-client relationship is a confidential one, as the majority suggests. Such intrusions are condemned because they constitute an unwarranted infringement upon the accused’s Sixth Amendment right to *1199the effective assistance of counsel. In much the same way, government intrusions into the councils of an accused acting pro se are an unjustifiable interference with the unfettered exercise by the accused of his constitutional right to conduct his own defense.4
Three of appellant’s supporters — Claire Kelley, Vaughn Ellsworth, and William Drexler — played a particularly active role in presenting appellant’s defense. They were permitted to sit at the counsel table during trial. Appellant consulted with them frequently during the taking of testimony. They participated in hearings on various motions. They argued appellant’s constitutional points and discussed jury instructions with the trial court. They conferred with appellant outside the courtroom, planning strategy, assembling cases and documents, and marshaling arguments for later use in court. In short, they performed functions typically reserved to members of the bar. The impairment of the full and free exercise of appellant’s constitutional right to conduct his own defense resulting from the intrusion of a government agent into the conferences between appellant and these lay advisors cannot be distinguished from the interference with appellant’s Sixth Amendment right that would have been present had these advisors been lawyers.
This is not to say that appellant had a constitutional right to the assistance of his friends in presenting his,defense in the manner permitted by the trial court.5 Having been allowed that assistance, however, the government could not seize the opportunity it presented to interfere with appellant’s exercise of his right to defend himself by interposing a government agent into the relationship.
On the other hand, the right of the accused to be free of government interference in the presentation of his defense does not depend upon the use of lay advisors. The accused’s exercise of his right to defend himself does not grant the government a license to spy, whether the accused acts alone or has the help of others.
The majority asserts that the cases relied upon by appellant do not apply a per se rule requiring remand whenever the government has had access to a communication between an accused and his counsel; and the majority concludes that remand would not be appropriate in this case because there was no prejudice. The majority cannot mean that surreptitious government invasion of the councils of the defense requires reversal only if the defendant can establish specific prejudice. The Supreme Court’s decisions in O’Brien v. United States, supra, 386 U.S. 345, 87 S.Ct. 1158, and Black v. United States, supra, 385 U.S. 26, 87 S.Ct. 190, clearly hold to the contrary, and bind this court.
What is suggested by the cases cited by the majority, and similar cases, is that reversal is not required if there was in fact no intrusion into the councils of the defense at all,6 or no knowing intrusion,7 or the intrusion was minimal and *1200demonstrably involved nothing related to the case in trial,8 or the intrusion was such that it could not have prejudiced the accused.9
Whether an intrusion has occurred and, if so, its nature and extent, are questions of fact. In all of the cases cited the facts had been established by an evidentiary hearing, or the appellate court ordered that such a hearing be held. There has been no evidentiary hearing with respect to Swanson’s activities. It must be assumed that they were as alleged in appellant’s affidavits. The majority has cited no case in which a showing of specific prejudice was required where, as here alleged, a government agent deliberately participated on a continuing basis in conferences and councils concerned with the trial of the criminal case at hand. These allegations present “government intrusion of the grossest kind upon the confidential relationship between the defendant and his counsel,” which the Court in Hoffa v. United States, supra, 385 U.S. at 306-07, 87 S.Ct. at 416, assumed would require setting aside a conviction. In such a case the potential for prejudice permeates the proceeding; “the probability of unfairness due to the Government’s misconduct is incapable of realistic delineation.” United States v. Rispo, supra, 460 F.2d at 976.10 Assuming the facts to be as asserted in appellant’s affidavits, the burden at least rests upon the government to establish that the interference with appellant’s constitutional right to defend himself was harmless beyond a reasonable doubt. Id. at 977.
The majority suggests that prejudice was impossible because appellant’s defense was known to all, and was in any event without legal merit. Whether or not appellant was guilty of the charge against him, he was entitled to be fairly tried and to freely exercise his right to represent himself without interference or obstruction by the prosecution. The fact that appellant’s general line of defense was well known does not mean that his trial tactics and strategy were foreordained. Swanson allegedly sought to influence at least one element of that strategy (appellant’s decision to take the stand) in a way that might have affected the outcome.
Finally, the majority asserts that “there is no evidence in the record to refute the affidavit of the agent that he [furnished] no information about the defense to the prosecution.” Only the government could produce such evidence. Appellant sought to take the deposition of the agents and was rebuffed.11 In any event, while it would aggravate the evil if Swanson passed information to the government attorneys, it would not eliminate the evil if he did not. The central vice in the “surreptitious invasion by a government agent into the legal camp of the defense” is the interference with appellant’s right to represent himself. Cf. Hoffa v. United States, supra, 385 U.S. at 306-07, 87 S.Ct. at 416. The conviction in O'Brien v. United States, supra, 386 U.S. 345, 87 S.Ct. 1158, was reversed even though it was established that no information concerning the conversations intercepted by the FBI had been relayed to prosecuting attorneys.
A remand should be ordered in this case with instructions to hold an eviden-tiary hearing. If it is shown that Swan*1201son knowingly intruded in any substantial way into conferences relating to the defense of this case, a new trial should be ordered.
. Dobslaw’s affidavit states that Swanson “told me he had been in the ‘Conference Room’ (Room 214 of the Golden Key Motel), planning the trial strategy with Vaughn Ells-worth, Claire Kelley, Jim Scott, and Bill Drex-ler.” The affidavit continues, “During recesses in the trial Swanson (alias Swan) was often up front around the defendant’s counsel table, talking with [appellant] and his counselors. Exactly what he said on all of these occasions I do not know.” Dobslaw’s affidavit also states that during a recess Swanson “was talking to [appellant] and Claire Kelley. I did not catch everything he said, but I think it had to do with [appellant’s] decision whether or not to take the witness stand. [Swanson] was encouraging [appellant] to take the stand. Swanson told [appellant] something to the ef-feet: ‘That’s the way to get your story across,’ or ‘That’s the only way to get your side across.’ ”
The affidavit of William E. Drexler, another of appellant’s close associates, makes the specific allegation that Swanson was in appellant’s room when no one else was present. Both Drexler and appellant imply that Swanson took certain defense papers when he was in the room, although neither claims to have more specific evidence that he did so.
. The two letters quoted in footnote 7 of the majority opinion were introduced by the prosecution during cross-examination of appellant. The majority considers them to be prejudicial to appellant’s cause; the jury may have also.
. Appellant’s request for a hearing at which he could examine Swanson and other witnesses was in the form of a motion to the court “that if it refuses to grant a new trial, to grant a stay and issue a subpoena to the IRS, to bring undercover agents, JAMES Q. SWANSON [aka JEFF SWAN], ROGER D. SMITH AND JOHN DOE an unknown undercover agent in and he prays the court for leave to take depositions.”
. The constitutional right of the accused to conduct his own defense was recognized by the Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), decided after the opinions in this case were filed.
. Cf. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), in which the Court intimates that the Sixth Amendment right to “Assistance of Counsel”, may encompass the assistance of lay advisors. As the Court pointed out:
The first lawyers were personal friends of the litigant, brought into court by him so that he might “take ‘counsel’ with them” before pleading. 1 Pollock & Maitland, History of English Law 211 (1909). Similarly, the first “attorneys” were personal agents, often lacking any professional training, who were appointed by those litigants who had secured royal permission to carry on their affairs through a representative, rather than personally. Id., at 212-213.
At 820 n.16, 95 S.Ct. at 2534.
. United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973); United States v. Alderisio, 424 F.2d 20, 24 (10th Cir. 1970). See also Manuel v. Salisbury, 446 F.2d 453 (6th Cir. 1971).
. United States v. Brown, 484 F.2d 418, 424-25 (5th Cir. 1973); United States v. Bullock, 441 F.2d 59, 64 (5th Cir. 1971).
. United States v. Brown, 484 F.2d 418, 424-25 (5th Cir. 1973); Taglianetti v. United States, 398 F.2d 558, 570 (1st Cir. 1968); cf. Hoffa v. United States, 385 U.S. 293, 308, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).
. United States v. Mosca, 475 F.2d 1052, 1060-61 (2d Cir. 1972); South Dakota v. Long, 465 F.2d 65, 71-72 (8th Cir. 1972).
. See also United States v. Rosner, 485 F.2d 1213, 1227 (2d Cir. 1973).
. Appellant cites passages from the examination of witnesses by the prosecution that he contends were necessarily prompted by information obtained from the defense. The inference is not strong. Admittedly, however, Swanson did communicate with the prosecution about defense tampering with a trial exhibit, lending some credibility to the contention that Swanson may have also communicated information relevant to appellant’s legitimate defense.