concurring:
I concur in the court’s opinion, adding only a few words. Careful study of the record reveals, unmistakably, in my view, that the prosecutor twice represented to counsel for at least one of these defendants that he had secured the court’s approval of a specific sentence when he had yet to do so. By that representation he secured the benefit of favorable testimony against highly-placed criminals in a massive drug conspiracy, testimony the giving of which placed the witness in great danger. What led him to do this is unclear — perhaps mere over-zealousness, perhaps a belief that he could redeem his promises by later persuading the court to act in accordance with them, combined with a reluctance to disclose them too early in view of his expressed fear of a “security leak” among his subordinates or those of the court. In any event, the action does him little credit.
Having done so, however, and being unable to persuade the court to his concept of a proper sentence, he attempted to make his word good by the only avenues then available to him: motions to dismiss and for new trial. I do not think that these actions, given the circumstances, can be said to have been against the public interest. That his initial overreaching was wrong is undeniable; but haying reaped its fruits of favorable testimony given and more promised, and reaped them moreover at the price of increased danger to one who took his word, it seems to me that his action was the honorable course. Since it was, I cannot say nor do I think it fairly can be said that it was against the public interest.
Respect is due the court’s sentencing function as well as the prosecutor’s enforcement one, however. It would be intolerable to grant the prosecutor practical power to bargain away the court’s discretion in advance; and I recognize that the effect of our decision comes perilously close to doing so, the more because of the very broad dismissal power that we recognize today in the prosecutor. I therefore add that had the agreement taken the form of one made in advance to dismiss the prosecution if the judge failed to follow the prosecutor’s recommendation, I assume that its disclosure before the giving of a guilty plea, as required by Rule 11, would have caused that plea’s rejection and its subsequent emergence would have been grounds to reject a motion to dismiss as against the public interest.1 It is in that interest that sentenc*634ing discretion remain in the court, and any calculated or premeditated effort by the prosecutor to usurp it must be brought to nothing. Since I see neither evidence nor finding of such an effort here, however, I concur.
. [W]hen the conduct of an officer of the executive branch becomes enmeshed in the judicial process, the courts have the power and resulting duty to supervise that conduct to the extent its uses the judicial administration of criminal justice. The courts can no more be made the tools of improper administrative *634conduct than they may “become the ‘enforcers’ of ... odious agreements.”
United States v. Paiva, 294 F.Supp. 742, 746 (D.D.C.1969) quoting Dixon v. District of Columbia, 394 F.2d 966, 969 (D.C.Cir.1968).