dissenting:
I respectfully dissent.
In this unique situation the defendant, after indictment, voluntarily appeared at *1234the prosecutor’s office, voluntarily waived the .presence of his counsel, and after a Miranda warning, voluntarily gave information concerning his activities in an unrelated criminal matter that would incriminate a third party (Alvarez) who the government was about to prosecute. None of the information disclosed by the defendant was, at that time, relevant to the prosecution of .the defendant in this case. In fact, the government attorney refused to discuss anything that bore upon this case with the defendant. The information became relevant, at the trial, however, because the defendant raised the defense of entrapment and because his testimony was inconsistent with his prior statements, thus raising a credibility issue.
There is not one iota of a suggestion that there was any plea bargaining in this case. The defendant never made a tentative or firm offer to plead prior to or during the conference, and indeed, during formal plea bargaining before trial no agreement for a plea was reached. The prosecutor was properly adamant from the very beginning of the conference “ . . . that we would not discuss anything whatsoever to do with this particular case . . ..” The most charitable view of the defendant’s characterization of his intentions is that by being helpful in giving information about his dealings with Alvarez in an unconnected matter it could help him in this case. The majority votes that there is no evidence that the government offered to discuss this case, and it is undisputed that the defendant never wavered in his steadfast position that he would go to trial. We are thus left to speculate how the defendant thought the information would help him in this case (although it might well have helped him extricate himself from charges of being a co-conspirator with Alvarez in an unrelated proceeding). The most favorable inference that may be drawn for the defendant is that someone would tell the Judge at the time of sentencing, if, as and when the defendant was convicted in this case, that he had cooperated with the authorities concerning an unrelated prosecution of another individual.
To transpose the information given by the defendant that was not at that time relevant to these proceedings to a plea bargain that would bar the information when it was attempted to be elicited because it became relevant rebuttal evidence when the defendant invoked the defense of entrapment and put his credibility in issue is, in my opinion, an unwarranted extension of, or perhaps obliterates any standard for plea bargaining.
I am unwilling to stretch the holdings in the factually dissimilar cases of Santobello and Herman to the precise issue raised here. The focus in Herman centered on concessions from the-government in return for a plea. It had nothing to do with a defendant who insists on a trial and then objects to evidence which is made admissible, not to prove his guilt, but to rebut his claim of innocent involvement and credibility.
As the majority recognizes, in Santobello the Court held that if the government makes promises which result in a guilty plea, the promise must be fulfilled. The premise, drawn by the majority is sound only if my parenthetical interpolation is read into it, “that all admissions made by the defendant during the course of negotiations [for a guilty plea] are conditioned upon the defendant receiving that which he bargained for.” In the context of this case, there were no negotiations for a guilty plea. Moreover, neither party at the time of the conference considered the information that the defendant disclosed to be relevant to his guilt or innocence. It became relevant only when the defendant chose to raise the issue of entrapment and put his credibility on the line. Once the defendant took this tack it would pervert justice to permit him to testify inconsistently or even perjuriously without the risk of confrontation and thus be in a position to withhold the full facts from the jury’s consideration.
In an analogous but even factually stronger case than the one sub judice the Court said:
It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite *1235another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradictions of his untruths.
[TJhere is hardly justification for letting the defendant affirmatively resort to per-jurious testimony in reliance on the Government’s disability to challenge his credibility.
Walder v. United States, 1954, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503.
I agree with the view expressed by Judge Young when he denied the defendant’s motion in limine. He said “[I]f there is any principle that must govern the administration of justice, it is that the truth must out. If the Court directly or indirectly permits falsehood knowingly to go to the trier of the facts, then the administration of justice has been distorted to the point that it is completely ineffective.” This is. simply a reaffirmation of the well established principle that “Every defendant is privileged to testify in his own defense, or refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” Harris v. New York, 1971, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 for “[w]e are, after all, always engaged in a search for the truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution.” Oregon v. Hass, 1975, 420 U.S. 714, 722, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570.
I agree with the majority that there is no merit in the defendant’s contention that there was error in the denial of his motion for continuance. I am also convinced that the defendant’s argument that the district court abused its discretion in refusing to permit him to present surrebuttal evidence is groundless. “[I]t is within the trial court’s sound discretion to deny petitioners right to a rebuttal witness, and on the record before us we find no abuse of discretion.” Hampton v. Hauck, 5 Cir. 1967, 383 F.2d 389.
Finally, it is enough to say that any failure of the government to disclose Kilgore’s status as a confidential informant was cured by the government making available the material in question during the course of the trial and in time for the defendant to fully utilize it. United States v. Decker, 5 Cir. 1976, 543 F.2d 1102, 1105.
I would affirm the judgment of conviction.