dissenting:
In this case we must balance the rights of one individual against those of another, and individual rights against the workings of our criminal justice system. The complex question presented does not avail itself of an easy answer; I cannot say that the majority’s approach in resolving the conflict between these competing interests is manifestly wrong. Nevertheless, I believe the majority does not confront the key question on this appeal: Did the government’s refusal to grant DePalm use immunity while using his out-of-court statements as the cornerstone of its case violate Paris’ right to a fair trial? Because I conclude that it did, I must respectfully dissent.
I concede at the outset that the district court could not have forced the government to grant DePalm use immunity. Use immunity is a creature of statute and “Congress has delegated the authority to grant use immunity solely to the executive branch of government.” United States v. Taylor, 728 F.2d 930, 934 (7th Cir.1984). The statute grants the prosecutor a great deal of discretion: It provides that a “United States Attorney may ” request use immunity where “in his judgment” the testimony may be vital to the public interest. 18 U.S.C. § 6003 (1982) (emphasis added). No statute authorizes the court to grant a witness use immunity sua sponte or at the behest of a defendant.
Even so, the court does have the authority, indeed the responsibility, to ensure that the accused is given a fair trial. Where the prosecutor’s refusal to grant immunity results in such unfairness to the accused that it amounts to a denial of due process, the court must exercise the considerable powers it does have to even the balance. In this case, the district court could have, and in my view should have, excluded DePalm’s out-of-court statements unless the government granted DePalm use immunity so that Paris could cross-examine him.
This is not a novel proposition. We have long held that the “key question” in this situation is “whether appellant was denied a fair trial because of the government’s refusal to seek immunity for defense witnesses.” United States v. Alessio, 528 F.2d 1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976); see also Taylor, 728 F.2d at 935 (“[prosecutors must exercise [immunity] authority within the bounds of the due process clause of the fifth amendment”). Where the prosecutor’s decision not to grant a witness use immunity has “distort[ed] the judicial fact-finding process,” id., the court must step in. The circumstances here indicate that the denial of use immunity, coupled with the introduction of DePalm’s out-of-court statements, created just such an impermissible distortion.
First, once the prosecutor decided to rely on DePalm’s out-of-court statements as reported by Officer Hafley, cross-examination of DePalm became crucial to Paris’ defense. DePalm’s statements constituted, in the majority’s terms, the “chief evidence *404of Paris’s guilt.” Op. at 398. More than that, however, the statements were indispensable to the government’s case for conspiracy. See United States v. Lewis, 759 F.2d 1316, 1352 (8th Cir.) (delivery of cocaine does not prove knowledge of conspiracy), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985); United States v. Hyson, 721 F.2d 856, 862 (1st Cir.1983) (possession of controlled substance does not establish participation in conspiracy to distribute). Thus, Paris’ best chance of gaining acquittal lay in impeaching Hafley’s testimony. And the best way to do this would have been to have DePalm contradict Hafley in open court. Moreover, Paris maintained that he was set up by DePalm and a man named Michael, who allegedly planted the briefcase full of cocaine in the back seat of Paris' car. While the story seems somewhat implausible, it is not, in my view, patently absurd.1 Because Michael never turned up, the only person who could possibly lend credibility to this story was DePalm.
There is a substantial possibility that DePalm's testimony would have materially affected the outcome of the case. One of the government's most telling pieces of evidence, for example, was DePalm’s reported statement that his source was going back east on a certain date to attend his parents’ fiftieth wedding anniversary. The government argued, with devastating effect I would imagine, that Paris must have been the source, because he had in fact traveled to Ohio on that date for his parents’ fiftieth anniversary. However, in his presentence report, DePalm flatly denied having made that statement. A similar denial on the witness stand would have cast serious doubt on this key piece of evidence and, quite possibility, on Hafley’s entire testimony.2
There were other weaknesses and contradictions in the DePalm evidence that could have been exploited through cross-examination. For example, DePalm reportedly said that the source would arrive in a red Subaru or a white Toyota; Paris asserts he does not own a red Subaru. Because DePalm did not take the stand, Paris was unable to explore whether DePalm actually made that statement and, if so, why. In addition, the court admitted DePalm’s out-of-court statement that he had 25 years’ experience in the drug business. Again, the presentence report indicates that DePalm denied saying this. In light of these discrepancies, I cannot find, as the majority does, that there was “no evidence” DePalm would have retracted his statements.
Second, the government’s use of DePalm’s out-of-court statements implicated Paris’ Sixth Amendment right to confront a key witness against him. While neither the rules of evidence nor the Constitution bars the introduction of all out-of-court statements, it is well recognized that such statements have serious potential for denying the accused a full and fair opportunity to present a defense. We have previously noted that “the Sixth Amendment right to confrontation ... is effectively denied to a criminal defendant when out of court statements, made outside a defendant's presence, are introduced at trial and the maker of the statement is not present, does not take the stand, or invokes a privilege so as to deprive the defendant an opportunity to cross-examine.” United States v. Brady, 579 F.2d 1121, 1129 (9th Cir.1978) (citing Bruton v. United States, 391 U.S. 123, 124-26, 88 S.Ct. 1620, 1621-23, 20 L.Ed.2d 476 (1968)), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). As in Bruton, Paris' constitutional right to confrontation was impaired by the admission of evidence that “added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.” Bruton, 391 U.S. at 128, 88 S.Ct. at 1623.
Of course, where circumstances make it impossible to present the hearsay declarant for cross-examination, the balance may
*405Finally, the government has advanced no legitimate reason for refusing to grant DePalm use immunity as to any testimony he would give in Paris’ case.5 The govemment’s brief on appeal completely ignores the issue, asserting only that “there is no right to defense witness immunity.” Gov’t Brief at 17. Questioned at oral argument, government counsel argued that DePalm was not given immunity because the prosecution doubted DePalm would tell the truth.6 This is patent nonsense. In es*406sence, the prosecutor made a unilateral decision that Hafley’s second-hand report of what DePalm allegedly said to him months before was more reliable than what DePalm would say in court under oath. This seriously misconceives the proper role of the prosecution in a criminal case. The trial is a search for the truth; it is up to the jury, not the government, to decide the facts, weighing the credibility of witnesses. By allowing only one side of the story to be presented, the government unfairly tipped the scales in its favor. The proper approach would have been to allow DePalm to testify; if the government believed he was lying, it could have cross-examined him or prosecuted him for perjury.
A criminal trial, like life itself, can make no claim to perfection. All too frequently we must compromise ideal to necessity. But compromise suggests weighing and weighing requires a consideration of competing interests. The evil I see here is that there were no competing interests. Paris’ right to confront the key witness against him, to cross-examine him in open court, to attempt to impeach his story was sacrificed, as best the record discloses, at the whim of the prosecutor.
It is the district court’s responsibility to guard against such overreaching. Here the district court had a simple method of avoiding unfairness to the accused: It could have excluded Hafley’s account of what DePalm allegedly told him unless the prosecution was willing to produce DePalm and grant him use immunity. Federal Rule of Evidence 403 or the court’s inherent powers to control the admission of evidence were ample authority for imposing this condition. Due regard for the rights of the accused, in my view, required the district court to do so. Its failure to so condition introduction of the DePalm evidence unnecessarily and improperly prejudiced Paris’ right to a fair trial, denying him due process and the right to confrontation. I would reverse.
* * *
On rehearing, the majority adds a footnote, relying on evidence unknown — indeed nonexistent — at the time the opinion was originally issued. Op. at 401 n. 3. The new facts are derived from two affidavits presented in the government’s response to the petition for rehearing. These are not preexisting affidavits, culled from the record and belatedly brought to the court’s attention. Both affidavits are dated March 31, 1987, more than three weeks after the original opinion was issued. Reliance on such one-sided, post-hoc “testimony” is highly questionable under the best of circumstances.7
But these are not the best of circumstances. The government’s affidavits are vague and mutually inconsistent; artfully drafted, they say less than they appear to. For example, the majority is under the impression that “the government wanted DePalm to testify at Paris’s trial. DePalm refused.” Op. at 401 n. 3 (emphasis in original). The prosecutor’s declaration is far more slippery, claiming only that he “would have liked to have had DePalm available,” and that he discussed with DePalm’s attorney the “possibility” that DePalm might “reconsider his decision to assert the Fifth Amendment.” Luckel Declaration at 1, 2. DePalm’s lawyer confirms that it was Paris who “at all times, and *407-423vigorously ... requested DePalm to testify on his behalf.” Serra Declaration at 2.
Moreover, the prosecutor now asserts that “I never asked or implied that DePalm assert the privilege nor was it a condition of the plea that he do so.” Luckel Declaration at 1. That may be so, but DePalm’s lawyer makes it quite clear that preserving DePalm’s right to assert the privilege against self-incrimination “was a prerequisite to his plea.” Serra Declaration at 2. In fact, DePalm’s lawyer hints that DePalm would not have pleaded guilty without the government’s assurance that he would not be granted immunity. Id. at 2. Quite clearly, having DePalm stand mute was at the heart of his plea agreement. The fact of the matter is that, although the majority spends three paragraphs parsing the allegations and counter-allegations on this issue, we have only the vaguest idea of what really happened.
It seems to me the majority has a choice: It can stand by its earlier opinion, concluding that the new information presented by the government is irrelevant; or, if it concludes that this evidence is relevant, it must remand for a factual determination of whether the affidavits are worthy of belief — -the function of trial, not appellate courts. By relying on these affidavits as presented, the majority compounds the injustice to Paris. Now, the prosecutor is not merely given the privilege of keeping witnesses out based upon his own guess as to whether they will tell the truth, he is allowed to create evidence in response to the appellate court’s decision and have the court rely on it as fact.
. It is worth noting that none of the prints found on the briefcase or the bag of cocaine inside belonged to Paris.
. This information was not known at the time of trial. It therefore could not have been used to impeach Hafley’s statements. It does show, however, that DePalm’s testimony might well have contradicted Hafley’s. *405well tip in favor of letting the government present its case. But here there was no such impossibility.3 DePalm was available to testify but refused to do so merely because he feared self-incrimination, a fear that immunity could have removed.4
. In Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980), the Court noted that "the Sixth Amendment establishes a rule of necessity. In the usual case ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Recently, however, the Court limited this rule to hearsay consisting of prior testimony. United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 1125, 89 L.Ed.2d 390 (1986). The Supreme Court has specifically rejected the requirements that the government prove the unavailability and reliability of the declarant before co-conspirator statements are admitted. Id. 106 S.Ct. at 1129 (unavailability); Bourjaily v. United States, — U.S. -, -, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987) (reliability). Nevertheless, I do not read these decisions as holding that co- conspirator’s statements are automatically admissible. Moreover, they certainly did not eliminate a court’s responsibility under the Fifth Amendment to evaluate the overall fairness of a criminal proceeding. In this case, I cannot conclude that “the trier of fact could satisfactorily evaluate the truth of the hearsay statement" without DePalm’s in-court testimony. United States v. Eaglin, 571 F.2d 1069, 1084 (9th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978). The Sixth Amendment must inform our application of the Fifth.
. Indeed, it appears that DePalm had little to fear from testifying. He based his Fifth Amendment claim on the possibility he could be implicated in a drug conspiracy. In the process of pleading guilty, however, DePalm had already admitted he conspired with others to purchase and sell cocaine. It is difficult to imagine, therefore, how DePalm could have been subjected to greater criminal liability by testifying. See United States v. Pardo, 636 F.2d 535, 542-44 (D.C.Cir.1980). The state was precluded from prosecuting him on similar charges under Cal. Penal Code § 656 (1970). See People v. Belcher, 11 Cal.3d 91, 520 P.2d 385, 113 Cal.Rptr. 1 (1974).
. For his part, Paris did everything he could to obtain DePalm's testimony. He subpeonaed him, but after DePalm invoked his Fifth Amendment privilege the district court quashed the subpeona. Paris then requested that the government grant DePalm use immunity and made an offer of proof suggesting that DePalm’s testimony would be material, possibly favorable to the defense and not cumulative. See generally United States v. Carman, 577 F.2d 556, 561 (9th Cir.1978). This request was refused.
The majority asserts that “Paris never asked the prosecutor to grant DePalm immunity.” Op. at 401. In fact, Paris moved in limine to exclude DePalm’s out-of-court statements because DePalm was available as a witness. Paris suggested that "the Government can grant [DePalm] use immunity for his testimony, since he has already pleaded guilty and the Government has nothing to lose by so doing.” ER 5, at 4.
. The majority characterizes the government’s statements as "inconclusive." Op. at 401 n. 3. I respectfully disagree. The following is a transcript of the relevant portion of the oral argument:
THE COURT [JUDGE KOZINSKI]: Well, you asked for the introduction of the hearsay statements to which he [defendant] objected. You are the one who brought in the DePalm testimony; the DePalm statements were crucial to your case. Why isn’t it appropriate at that point to bring him [DePalm] to court to allow him to testify under use immunity? Do you think that’s fair?
MR. LUCKEL: I don’t think it's in the interest of justice to — allow a person who is going to testify in a manner that the executive branch of government is convinced beyond all possible doubt that his testimony would be a lie.
THE COURT [JUDGE SNEED]: The truth of the matter is you want to hold him to his bargain.
MR. LUCKEL: We want to hold him to his bargain, too, but we’re not going to assume that — we certainly—
THE COURT [JUDGE KOZINSKI]: He didn’t bargain to testify a particular way.
MR. LUCKEL: No.
THE COURT: What you’re saying is he said some things outside the court and what you would like to do is have that part of the story in the courtroom. Here’s something you say to clarify or rebut or deny; you sure ... don’t want it in that courtroom. Isn’t that your point?
MR. LUCKEL: No, that’s not it.
THE COURT: I mean, is that part of the bargain?
MR. LUCKEL: That’s not part of the bargain, but I don't think the Attorney General of
*406 the United States, who is vested with the discretion to make decisions about immunity, is going to grant immunity to a person where everything indicates the person would be testifying falsely if he is granted immunity.
THE COURT: — So what have you got to lose if he gets on the stand and he tells the truth? The truth has come out and the government wins because the government always wins when the truth comes out.
MR. LUCKEL: Well, I think what you— have to lose is a — potential pollution of the truth-seeking process. [Emphasis added.]
Although the prosecutor filed a post-opinion affidavit addressing other issues, he has never repudiated these statements.
. The majority seeks to justify its reliance on the government’s post-opinion declarations by noting that they were submitted to rebut a post-opinion affidavit filed by defendant. Op. at 401 n. 3. I fail to understand why the government’s reasons for filing the declarations justify or explain the majority's reliance on them.