dissenting:
I regret that my respected brothers should work so hard at the impossible job of finding a basis for extenuating the prosecutor’s failure to give the grand juror’s questions the candid answers they deserved.
It is not disputed that in October 1976 the FBI informed the DEA that Blasich’s friends had told Ciambrone that they “would take care of” him after the Blasich trial — information which the Government took so seriously as to offer relocation. It is likewise not disputed that on December 7, 1976, Assistant United States Attorney Kramer, who had represented the Government in the Blasich trial, unequivocally stated to Chief Judge Mishler, in opposing Ciambrone’s application for bail on the false declaration charge, that Blasich had “put a contract” on Ciambrone’s life. In the face of Kramer’s positive statement the Government cannot now be heard to say that its belief in the threats was dispelled by Ciam-brone’s previous denials of them, denials which no experienced prosecutor would take at face value in any event, or by his refusal to accept the relocation offer.
The very first question asked by a grand juror after Assistant United States Attorney Adlerstein invited questions at the end of Agent Vigna’s testimony went directly to the point “Why would he [Ciambrone] lie if he knew he was going to get taped?” While this may have been inartistically worded, the Assistant must have known what was bothering the juror — why would Ciambrone give false testimony at the Bla-sich trial if he knew the Government had sure means of proving he was a liar. After the failure of an initial endeavor to discourage the jurors by saying “That is something that we cannot speculate on why he would”, the Assistant, in response to questions about the contents of the tape, had Agent Vigna testify that “No mention was made whether it was a package of drugs or a package of stones”. A juror then asked whether Ciambrone had been “brought up on any charges”. The Assistant first re*628sponded “that there may have been charges against him at the time”, presumably of the taping, but that also was not for the jury to consider. The grand jury was not so easily put off. A juror said:
On the contrary. I feel that if there were no charges brought against him or he was not brought up on trial or anything himself, why would he lie in a situation when he is being taped and he knows his conversation is being taped? This is the point.
The Assistant made the unresponsive answer that Ciambrone had been charged with an earlier offense but had been acquitted immediately prior to the Blasich trial. Whether so intended or not, this answer gave the jurors a basis for thinking that Ciambrone’s change of story was due to the fact that he no longer needed the benefits of cooperation. However, the jurors were not fobbed off; one of them asked “What could he gain by lying?”
Forced to do something that would still the grand jurors’ concerns, the Assistant then brought out from Agent Vigna that Ciambrone and Blasich were friends and that Blasich was Ciambrone’s drug connection. The Assistant volunteered that this may have been the motive for which the jurors were searching. A juror then said that “what might be confusing some of the folks here was that why would this man who obviously has a past in crime suddenly become an agent?” Grasping this false lead, the Assistant and the Agent brought out that there had been an arrangement whereby in return for his cooperation the Government would help if Ciambrone “were convicted of any criminal charges” but that when it “came time to be asked to testify as to Mr. Blasich”, he testified the way the grand jury had heard — inferably solely because he had already been acquitted and was a friend of Blasich.
Not once during this colloquy, recorded in four pages of transcript, did the Assistant give the grand jurors the slightest inkling that the Government had every reason to think Ciambrone had a motive for giving false testimony at Blasieh’s trial much more powerful than friendship with Blasich or the effect of his own acquittal — a motive which Assistant United States Attorney Kramer had fully and properly exploited when that served the Government’s purpose. Mr. Kramer testified before the grand jury immediately prior to the episode just described; the transcript does not show whether he was in the grand jury room when it occurred. The Government does not argue, as do the majority, fn. 6, that AUSA Adlerstein did not know what Agent Vigna and AUSA Kramer surely did. Any such assertion would strain credulity beyond the breaking point. As Mr. Justice Frankfurter observed in Waifs v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801 (1949), there comes a time when we “should not be ignorant as judges of what we know as men.” In any event, for our purposes, it does not matter. Adlerstein cannot be insulated from the rest of the prosecution team, Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Neither does it matter whether or not Adlerstein “credited” the report on which the Government had relied in resisting bail; he was still bound to tell the grand jurors what the prosecution knew.
As the Supreme Court has noted, “the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by ‘a presentment or indictment of a Grand Jury’ ”. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). Before the grand jury the prosecutor has the dual role of pressing for an indictment and of being the grand jury’s adviser. In case of conflict, the latter duty must take precedence. United States v. Remington, 208 F.2d 567, 573-74 (2 Cir. 1953) (L. Hand, J., dissenting), cert. denied, 347 U.S. 913, 74 S.Ct. 476, 98 L.Ed. 1069 (1954).
The ex parte character of grand jury proceedings makes it peculiarly important for a federal prosecutor to remember that, in the familiar phrase, the interest of the United States “in a criminal prosecution is not that it shall win a case, but that justice *629shall be done. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). While, as the majority says, “a prosecutor is not presently obligated to search for and submit to a grand jury evidence favorable to the defense or negating guilt, when it has not been requested by the grand jury,” the corollary is that when a grand juror requests advice, the prosecutor may not fence with him but must respond fully and fairly.1 No amount of parsing can show that this was done here. Also it is of no moment that, after considerable prodding by the trial judge, the petit juror rejected Ciambrone’s duress and coercion defenses on the ground that he had failed to take reasonable steps to protect himself.
The grand jury is not bound to indict in every case where a conviction can be obtained. As Judge Wisdom has written:
By refusing to indict, the grand jury has the unchallengeable power to defend the innocent from government oppression by unjust prosecution. And it has the equally unchallengeable power to shield the guilty, should the whims of the jurors or their conscious or subconscious response to community pressures induce twelve or more jurors to give sanctuary to the guilty. United States v. Cox, 342 F.2d 167, 189-90 (5 Cir.) (Wisdom, J., concurring specially), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).2
The jurors’ persistent questioning shows there was at least a strong prospect that disclosure of the threats to Ciambrone, even with all the qualifications which the Government was entitled to put forward, might well have resulted in no true bill being returned. A substantial possibility of this is all that is needed to warrant our quashing the indictment. United States v. Remington, supra, 208 F.2d at 574 (L. Hand, J., dissenting); United States v. Fields, 592 F.2d 638, 647-48 (2 Cir. 1978); United States v. Broward, 1625-26, 594 F.2d 345, 350-51 (2 Cir. 1979). Mere rebuke, which the majority does not even see fit to administer, is insufficient to maintain the complete prosecutorial candor necessary to permit the grand jury to perform its historic role.
. Such fencing is not excused by the facts that counsel for Ciambrone suggested prior to the grand jury proceedings that Ciambrone might raise defenses other than duress, or that Ciam-brone declined to appear before the grand jury or to submit instructions for its consideration.
. That a grand jury may legitimately perform a quasi-equitable function is implicit in its role as “an irresponsible utterance of the community at large, answerable only to the general body of citizens, from whom they come at random, and with whom they are again at once merged.” In re Kittle. 180 F. 946, 947 (S.D.N.Y.1910) (L. Hand, J.). See also Charge of John Raymond Fletcher, Associate Judge, to a Grand Jury, 18 F.R.D. 211, 214 (Cir.Ct.Md.1955); United States v. Asdrubal-Herrera, 470 F.Supp. 939 (N.D.Ill.1979).