concurring.
I concur with the majority insofar as it remands this matter to the district court for an evidentiary hearing. Biberfeld has raised substantial issues that may merit collateral relief. I believe, however, that it remains the province of the district court to conduct an evidentiary hearing and develop the factual record with respect to the three elements set forth in Jackson v. United States, 338 F.Supp. 7, 10 (D.N.J.1971), aff'd, 455 F.2d 991 (3d Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972), before any legal conclusions should be drawn. These three elements encompass: 1) the alleged perjury of the government witness DiLauro, 2) the materiality of DiLauro’s trial testimony to Biberfeld’s conviction, and 3) the Assistant United States Attorney’s knowledge of DiLauro’s alleged perjury.
Before the record is developed, I believe it is premature and improvident for us to comment on the merits of Biberfeld’s claims. For example, the majority appears to accept, with brief analysis, Biberfeld’s contention that the alleged DiLauro perjury was material to his conviction. Although I am unable to decide this issue because our appellate record is incomplete, I cannot dismiss the government’s evidence that bears on this question. This evidence, unmentioned by the majority, suggests that while Biberfeld contends that he lacked specific intent to violate the law by not disclosing his Pakistani source in the K-39 clause, Biberfeld did recognize that he could initiate government investigations against competitors who, like he, did not reveal their Pakistani source in the K-39 clause. Evidence from Biberfeld’s trial strongly suggests, as well, that SICOA’s *106West German subcontractor was a conduit that merely repackaged and in some instances stamped product as made in West Germany. Thus Biberfeld saved from disclosure his major manufacturer, unlike many of the instances to which DiLauro responded in his deposition. Finally, in order to meet government contracting standards, Biberfeld altered correspondence to and from his West German subcontractor and misrepresented that the West German subcontractor’s facilities were capable of manufacturing. Biberfeld’s fraudulent activities even culminated in allegedly bribing an Army official involved with a pre-award survey of his West German subcontractor. This conduct, as evidence of Biberfeld’s knowledge and intent, must be factored into any determination of materiality.
For these reasons, I would simply vacate and remand to the district court to hear the evidence and evaluate it in its entirety without commenting on the merits of Biber-feld’s claim.