concurring:
I generally concur in the opinion of the majority. Yet I go a little farther.
I am deeply troubled and offended by the conduct of the Government in this case. As my Brother Wright, joined by Judges Goodwin and Schwartz, so cogently wrote in the vacated 1974 decision of our court, now reinstated by our present decision, the “[pjrosecution’s acquiescence in and corroboration of Dur-den’s denials at trial were followed by continued deception and half-truths on appeal and at the hearing on appellants’ new trial motion.” After reviewing all of the facts presented here, including those adduced at the evidentiary hearing upon remand from the vacated 1974 decision of our court, I am of the opinion that the gravity of the governmental misconduct is significantly understated.
The District Court, in the evidentiary hearing on remand, found that the United States Attorney’s office had made no direct promise to Durden. Although the evidence seems to me to indicate strongly that the United States Attorney’s office actively made direct representations to Durden, I reluctantly agree with the majority in upholding the findings of fact made below, especially in light of the District Court’s vantage point from which to assess credibility. Nevertheless, the Government remains responsible for the inexcusable and intolerable conduct of its agents. Agents Sternaman and Clemente, the two narcotics officers most intimately involved in making representations to Durden and his attorney, were both present in the courtroom at Butler’s trial when Durden testified concerning “deals” with the Government. Yet, fully aware of all the assurances given to Durden, they sat silent during his entire testimony, failing to exert any effort to correct Durden’s blatant misrepresentations and omissions. This abdication of their duty to the court and the parties to correct Durden’s fraud was compounded when agent Sternaman himself took the stand and testified that neither he nor agent Clemente had ever assured Durden anything in exchange for his testimony or even indicated any benefit at all to Durden save that his cooperation would be brought to the court’s attention. Consequently, the Government’s sin of silence was transformed into an affirmative presentation of perjury. This disgrace was repeated again at the new trial hearing in 1974. Agent Clemente was present and again failed to bring Durden’s perjury to the attention of the court. Moreover, Clem-ente testified for the Government and substantiated both Durden’s and Sterna-man’s representations that no assurances had been given to Durden by the Government. At the 1976 hearing, the Government once again presented agent Sternaman as a witness. Again he testified that no undisclosed “deals” had been made with Durden. This campaign of deception and perjury extends across the entire range of proceedings conducted in this case. Never once did the agents hint at the full complement of assurances given to Durden. Even if the United States Attorney’s office were totally ignorant of the agents’ activities and deceptions, the Government still remained responsible for any and all of their actions. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The agents were nothing less than “an arm of the prosecutor.” United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975).
Moreover, I find it well nigh impossible to believe that the United States Attorney’s office was fully ignorant of the activities and misrepresentations of the narcotics agents. To the contrary, the evidence quite strongly suggests that the United States Attorney’s office was fully aware of the nature of the assurances being given to Durden by the agents. For example, a memorandum to the file in Durden’s federal case, written by an authoritative Assistant United States Attorney and dated January 22, 1970, some six months before Butler’s trial, stated: “This case was continued for trial from 1/20/71 ostensibly because Dur-den’s attorney needed more time. The actual and SECRET reason is that Dur-den is cooperating with the narcotics agents, and is responsible for the turning of a big case presently under investiga*893tion. Chekc (sic) with Novak about this — Durden should end [up] with a misdemeanor, and should testify against Butler. Durden’s attorney is aware of the above, but Butler and his attorney are not. George Clemente is the case [narcotics] agent, and is aware of the above.” (emphasis added). Further evidence presented at the 1974 and 1976 hearings, including other of the government’s internal memoranda, also indicates that the prosecuting attorneys were fully knowledgeable of the narcotics agents’ misconduct. The United States attorneys’ failure to rectify the actions of the agents was, at worst, the knowing subornation of, and acquiescence in, the most odious perjury and, at best, an inexcusably incompetent failure to inform themselves adequately of the knowledge and behavior of their government associates and prosecution witnesses. In either case, the conduct of the Government here was far below what the American people are entitled to expect from public servants entrusted with such an important aspect of the national interest. To me, the totality of these facts demonstrates rank prosecutorial misconduct of the sort that ought unequivocally and strenuously to be condemned. To the extent my Brothers do so, I join them wholeheartedly.
The Government, and particularly the United States Attorney’s office, is charged not only with the duty to prosecute the accused, but also with the paramount duty to ensure that justice is done. United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). “[T]he interest of the prosecution is not that it shall win the case, but that it shall bring forth the true facts surrounding the commission of the crime so that justice shall be done . . ..”1 Surely, conduct such as that indulged in here by the Government cannot in any imaginable way promote the just administration of the laws in the United States, and, in fact, affirmatively obstructs the pursuit of justice, the very lofty mission with which the Government is charged. The appellant has been forced to pursue two new trial motions and a 28 U.S.C: § 2255 petition, as well as separate appeals from the denials thereof. The heart of these motions and appeals is that Butler’s convictions were obtained, in part, through Durden’s perjury and the government’s failure to disclose leniency agreements with Durden. - Because of the government’s conduct, the administration of justice has been delayed seven years. Even to this point, the Government adamantly refuses to admit culpability. Consequently, I am driven to the conclusion that the prosecution’s intolerable misconduct has so permeated these proceedings that the indictment- ought to be dismissed as a prophylactic measure to deter such conduct in the future. All federal courts are endowed with certain inherent supervisory powers over the administration of justice in the courts of the United States and must utilize that power, which comprehends the power to dismiss an indictment, whenever the pursuit of truth and justice becomes tainted. See La Buy v. Howes Leather Co., 352 U.S. 249, 259-60, 77. S.Ct. 309, 1 L.Ed.2d 290 (1956); Lego v. Twomey, 404 U.S. 477, 479, n.1, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); United States v. Heath, 260 F.2d 623, 632 (9th Cir. 1958); United States v. Orman, 417 F.Supp. 1126 (D.Colo.1976); United States v. Banks, 383 F.Supp. 389, 392 (D.S.Dak.1974). “The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relating to proceedings in the federal courts. (Citation omitted). Therefore, fastidious regard for the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.” Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 124, [76 S.Ct. 663, 668,] 100 L.Ed. 1003 (1955).
*894I can envision few other situations that would recommend themselves more strongly than this one as candidates for the exercise of a federal court’s most exalted powers to deter such prosecutorial tactics. If there is any one characteristic that glorifies our Government, it is the penchant for justice, uniformly and impartially administered. The attainment of justice has ever been the ultimate aim and purpose of honorable men. The United States Attorneys, vested with such dignity and power, are especially entrusted with the duty to protect the interests of all people, including, of course, the legitimate rights of those accused of crime in the federal courts. There is no consideration, including zeal or inexperience, that can affect this transcendent obligation. And if, during a criminal trial and subsequent hearings, federal officers sit quietly acquiescent while one of their witnesses, to their knowledge, repeatedly perjures himself in incriminating the accused, the juridical idealism of our democracy is undermined and subverted.
In the light of the foregoing, I express the fervent hope that the judicial conscience of the District Court, upon remand, will impel' the dismissal of the indictment. In a case such as this, no lesser action can operate effectively to perpetuate the nobility of our judicial process.
. Introduction to ABA Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge at 3 (Approved Draft 1972).