ALDRICH, Senior Circuit Judge:
Our conclusion that there must be a new trial essentially limits our consideration in this case to one ground we find sufficient in itself—the government’s coverup of its relations with its principal witness, an alleged accomplice of the defendants. The underlying facts are these. Defendants Gerard, Goldstein and DeVito were indicted on a three-count indictment in connection with counterfeit Federal Reserve notes. 18 U.S.C. §§ 2, 371, 472 and 473. All three pleaded guilty to Count I (conspiracy), but at the sentencing a problem arose and the court allowed the withdrawal of the pleas. All were then reindicted on the same counts, with a fourth count added against Gerard. DeVito pleaded guilty again on the conspiracy count, but his sentencing was postponed until after the trial of the others. The other defendants, the present appellants, went to trial, with DeVito a key witness against them. They were convicted on all counts.
Prior to trial defendants sought unsuccessfully to learn of any government promise to DeVito. We agree, at least for present purposes, that the government was not obliged to disclose in advance the possible vulnerability of its witnesses and we mention this only to show that the defendants’ interest in this subject at trial could not have caught the government by surprise. With regard to the government’s withholding of information at trial we will proceed in the following order. First, a statement of applicable principles; second, by way of anticipation, the government’s explanation of any nondisclosure of its full dealings with DeVito, and last, what the record in fact shows.
The basic principle is clear enough: the government is obliged to disclose pertinent material evidence favorable to the defense, and this applies not only to matters of substance, but to matters relating to the credibility of government witnesses. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); United States v. Hibler, 463 F.2d 455, 460 (9th Cir. 1972); Loraine v. United States, 396 F.2d 335 (9th Cir. 1968), cert. denied 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270. There is a subsidiary principle: the government’s motives in suppressing evidence may be material in determining whether a new trial is necessary. True, if the suppressed evidence is of unquestionable materiality, the government is not saved by good motives. Brady v. Maryland, 373 U.S. 83, at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On the other hand, when the suppressed evidence is of less obvious materiality, improper prosecutorial motives may be relevant for one of two reasons. The fact that a prosecutor intentionally fails to perfom his duty may be regarded as an admission that performance would injure the government’s case; an admission, so to speak, of prejudice which might, particularly in close cases, tip the scales. See, e.g., Napue v. Illinois, ante, 360 U.S. at 270, 79 S.Ct. 1173. Alternatively, even though we [1303] could not be persuaded that the defendant had been seriously prejudiced, if the prosecutorial conduct was censorable we might reverse a conviction in the interest of keeping the administration of justice beyond the “suspicion of reproach,” or, perhaps, as a prophylactic against willful prosecutorial misconduct. Kyle v. United States, 297 F.2d 507, 514 (2d Cir. 1961); see Mooney v. Holohan, 294 U.S. 103, 112-113, 55 S.Ct. 340, 79 L.Ed. 791 (1935); cf. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
The government’s position (in a brief filed by other than trial counsel) was that the court permitted full cross-examination as to DeVito’s understanding of his agreement with the government, including even DeVito’s subjective conclusion as to what the government’s sentencing recommendation would be.
“[DeVito] testified that the prosecutor, Mr. MacIntyre ‘ . . . says he would make a recommendation on the day of my sentence to the Judge and it was entirely up to the Judge—the Judge’s own discretion whether he would accept it or not.’ ”
“[DeVito] testified that he ‘expected the Government’s recommendation would help him get the lightest possible sentence:’ and that he had ‘never been told by anyone that the recommendation would be for probation.’ ”
Thus the defendants, the government says, had ample opportunity to put before the jury the full relationship between DeVito and the government. Finally, the government pointed out that certain self-contradictory testimony by the prosecutor, Mr. MacIntyre, was not given in the presence of the jury and therefore was not prejudicial, and asserted that what took place during the summation, post, was not error.
We turn to the record facts referred to in defendants’ briefs. Early during cross-examination De Vito said that the prosecutor had told him that in return for testifying he would make a “recommendation” as to his sentence, but that he did not state what it would be.1 However,‘he did later say that he did expect probation.2 After the jury was excused for the day, defense counsel put the prosecutor on the stand. His testimony was that although he told DeVito he would make a recommendation, he “believed” he did not tell anyone what the recomihendation would be. The next day, in the continued absence of the jury, in response to further pressing by the defense, he admitted that he told DeVito’s counsel that he was going to recommend probation. The reason for this reluctance is elusive. Unobserved by counsel and by the court, DeVito was in the courtroom at that time. When his presence was discovered, in response to a question by the court he said his attorney had not disclosed this recommendation to him. The court then prohibited any further inquiry or mention of this promise, to the attorney in the presence of the jury.
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ALDRICH, Senior Circuit Judge:
Our conclusion that there must be a new trial essentially limits our consideration in this case to one ground we find sufficient in itself—the government’s coverup of its relations with its principal witness, an alleged accomplice of the defendants. The underlying facts are these. Defendants Gerard, Goldstein and DeVito were indicted on a three-count indictment in connection with counterfeit Federal Reserve notes. 18 U.S.C. §§ 2, 371, 472 and 473. All three pleaded guilty to Count I (conspiracy), but at the sentencing a problem arose and the court allowed the withdrawal of the pleas. All were then reindicted on the same counts, with a fourth count added against Gerard. DeVito pleaded guilty again on the conspiracy count, but his sentencing was postponed until after the trial of the others. The other defendants, the present appellants, went to trial, with DeVito a key witness against them. They were convicted on all counts.
Prior to trial defendants sought unsuccessfully to learn of any government promise to DeVito. We agree, at least for present purposes, that the government was not obliged to disclose in advance the possible vulnerability of its witnesses and we mention this only to show that the defendants’ interest in this subject at trial could not have caught the government by surprise. With regard to the government’s withholding of information at trial we will proceed in the following order. First, a statement of applicable principles; second, by way of anticipation, the government’s explanation of any nondisclosure of its full dealings with DeVito, and last, what the record in fact shows.
The basic principle is clear enough: the government is obliged to disclose pertinent material evidence favorable to the defense, and this applies not only to matters of substance, but to matters relating to the credibility of government witnesses. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); United States v. Hibler, 463 F.2d 455, 460 (9th Cir. 1972); Loraine v. United States, 396 F.2d 335 (9th Cir. 1968), cert. denied 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270. There is a subsidiary principle: the government’s motives in suppressing evidence may be material in determining whether a new trial is necessary. True, if the suppressed evidence is of unquestionable materiality, the government is not saved by good motives. Brady v. Maryland, 373 U.S. 83, at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On the other hand, when the suppressed evidence is of less obvious materiality, improper prosecutorial motives may be relevant for one of two reasons. The fact that a prosecutor intentionally fails to perfom his duty may be regarded as an admission that performance would injure the government’s case; an admission, so to speak, of prejudice which might, particularly in close cases, tip the scales. See, e.g., Napue v. Illinois, ante, 360 U.S. at 270, 79 S.Ct. 1173. Alternatively, even though we [1303] could not be persuaded that the defendant had been seriously prejudiced, if the prosecutorial conduct was censorable we might reverse a conviction in the interest of keeping the administration of justice beyond the “suspicion of reproach,” or, perhaps, as a prophylactic against willful prosecutorial misconduct. Kyle v. United States, 297 F.2d 507, 514 (2d Cir. 1961); see Mooney v. Holohan, 294 U.S. 103, 112-113, 55 S.Ct. 340, 79 L.Ed. 791 (1935); cf. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
The government’s position (in a brief filed by other than trial counsel) was that the court permitted full cross-examination as to DeVito’s understanding of his agreement with the government, including even DeVito’s subjective conclusion as to what the government’s sentencing recommendation would be.
“[DeVito] testified that the prosecutor, Mr. MacIntyre ‘ . . . says he would make a recommendation on the day of my sentence to the Judge and it was entirely up to the Judge—the Judge’s own discretion whether he would accept it or not.’ ”
“[DeVito] testified that he ‘expected the Government’s recommendation would help him get the lightest possible sentence:’ and that he had ‘never been told by anyone that the recommendation would be for probation.’ ”
Thus the defendants, the government says, had ample opportunity to put before the jury the full relationship between DeVito and the government. Finally, the government pointed out that certain self-contradictory testimony by the prosecutor, Mr. MacIntyre, was not given in the presence of the jury and therefore was not prejudicial, and asserted that what took place during the summation, post, was not error.
We turn to the record facts referred to in defendants’ briefs. Early during cross-examination De Vito said that the prosecutor had told him that in return for testifying he would make a “recommendation” as to his sentence, but that he did not state what it would be.1 However,‘he did later say that he did expect probation.2 After the jury was excused for the day, defense counsel put the prosecutor on the stand. His testimony was that although he told DeVito he would make a recommendation, he “believed” he did not tell anyone what the recomihendation would be. The next day, in the continued absence of the jury, in response to further pressing by the defense, he admitted that he told DeVito’s counsel that he was going to recommend probation. The reason for this reluctance is elusive. Unobserved by counsel and by the court, DeVito was in the courtroom at that time. When his presence was discovered, in response to a question by the court he said his attorney had not disclosed this recommendation to him. The court then prohibited any further inquiry or mention of this promise, to the attorney in the presence of the jury.
A “recommendation” that a defendant hoped would be for probation, and a positive commitment to recommend probation are two very different matters. Whatever is the commitment must be kept. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The jury should have been permitted to find that DeVito in fact knew the full promise. His denial that his attorney had told him should not have ended the matter, for it was DeVito’s very credibility that was at stake. The prosecutor admitted that he had not requested DeVito’s counsel to keep the promise secret from his client, and a jury could reasonably infer that counsel would in fact communicate. Indeed, we [1304] can scarcely doubt that he would. There is no reason for the prosecutor to make the promise, except for its intended effect upon the witness.
Defendants were not only deprived of all evidence of this promise, but the prosecutor failed to disclose at trial that DeVito was in separate and further difficulties, this time involving counterfeit government securities, giving him further reason for “cooperating” with the government. This matter came to the defense’s attention only aft-, er trial, when, at DeVito’s sentencing, his “cooperation” was detailed and he received here, also, a suspended sentence and probation. In the light of our clearly announced rule it is difficult to think that the prosecutor’s failure to disclose this further interest of DeVito’s was inadvertent. Hibler v. United States, ante, 463 F.2d at 459; Rhinehart v. Rhay, 440 F.2d 718, 723 (9th Cir. 1971).
Instead of making disclosure, the prosecutor elevated and exacerbated the situation. When, during the summation, defense counsel argued that DeVito “is going to get sentenced after this case. He has a deal. Whatever that deal is, I don’t know,” the prosecutor objected. “That is an improper statement, your Honor. There is no evidence of that whatsoever.” The court replied, “I think that is certainly an improper statement. Now, you can state what the testimony is, but that wasn’t the testimony.” Counsel dropped the matter by referring to the jury’s memory.
It may be that this exchange was technically correct, depending on- how one interprets the word “deal.” We may observe, however, that for a prosecutor to fail to keep his promise as to a recommendation is enough to require the court to vacate a plea. Santobello v. New York, ante. It is with this background that we view the prosecutor’s further remarks which the government says were not prejudicial.
“The fact that they state to you that there was a deal made, is ridiculous. Because I have nothing to do with sentencing whatsoever. . . .”
This, of course, was not true; otherwise there would be no point in even discussing recommendations.
“Mr. DeVito . . . has nothing to gain in this case, except here in court having the court hear him testify, that is it.”
This, equally, was not true. With the court’s exclusion of the specific promise of probation on the one hand, the downgrading of even the admitted evidence of the witness’ hope for indulgence on the other, and the concealment of significant further evidence supportive of that hope, we cannot feel that defendants have had a full opportunity of attacking the credibility of a, and in the case of one defendant, the, main witness against them. There must be a new trial.
A separate point is raised by Gerard in connection with Count 4, against him alone, added by the second indictment. This charged him with carrying a firearm during the commission of the previously alleged felonies, in violation of 18 U.S.C. § 924(c). The matter is material because the court imposed a separate, and in this instance, a consecutive sentence. Gerard claims that under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), this count, and this sentence, were impermissible infringements on his right to assert the invalidity of his plea.
Pearce held that, absent some proper reason affirmatively shown for imposing a longer sentence after the first had been vacated by reason of error committed at the trial, an increase of sentence was constitutionally impermissible as bearing the appearance of vindictiveness for taking the appeal; the Court pointing out that fear of vindictiveness might discourage meritorious appeals. Rejecting claims of double jeopardy and equal protection, the Court did not bar increased sentences for proper reasons, but held that such reasons must be restricted to demonstrated events occur[1305] ring subsequently to the first sentencing.3 The basis of the Pearce opinion was recently re-emphasized when the Court held that it was not necessary that such reasons appear if the circumstances precluded the possibility of improper motivation. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) (second jury set sentence, not knowing of first); see also Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 530 (1972).
Sentencing after a retrial is not the sole area for the application of Pearce. In the course of that opinion the Court affirmed the decision in Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967). Rice had been convicted in the state court on guilty pleas, but, while serving his sentence, had persuaded the state court to set aside the conviction and pleas due to lack of representation by counsel. Upon conviction following a full trial Rice was given a greatly increased sentence. The district court, on a habeas petition, ruled the increase impermissible. In affirming, the Court quoted the district court’s opinion to the effect that it was “shocking that the State of Alabama has not attempted to explain or justify the increase in Rice’s punishment,” and that “the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for his having exercised his post-conviction right of review.” 395 U.S. at 726, 89 S.Ct. at 2081.
Although wd do not escape the basic lesson of Pearce by showing that we are in another situation, different circumstances may suggest another litmus test for the elimination of vindictiveness. In addition to the difference common to all plea cases, in the instant case the sentencing court was presented with a special consideration in the new count to the indictment. This may call for an examination of the propriety not only of the resentencing itself but also of the prosecutor’s action in adding the count, since, at least in some circumstances, a prosecutor, too, may be guilty of vindictiveness. See Chaffin v. Stynchcombe, ante, 412 U.S. at 27 n. 13, 93 S.Ct. 1977; Williams v. McMann, 436 F.2d 103, 105 (2d Cir. 1970), cert denied 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656.
The Court in Pearce (Rice) entered into no discussion of how the possibility of vindictiveness could be excluded in the case of resentencing after a withdrawn plea, finding it unnecessary since no attempt of any kind was made in that case. We believe that there may be a broader range of possible answers here than in cases like Pearce itself, where the first sentence was imposed after a full trial. The very fact, for example, that there was a plea suggests the possibility of a plea bargain, or perhaps a consciously lower sentence in consideration of the defendant’s not insisting upon trial. Without going into the thorny area of plea bargaining participated in by the court, United States v. Stockwell, 472 F.2d 1186 (9th Cir. 1973), cert. denied 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409, see, in general, Note, The Unconstitutionality of Plea Bargaining, 83 Harv.L.Rev. 1387 (1970), plea bargaining by a prosecutor is a well accepted procedure. Chaffin v. Stynchcombe, ante; Cortez v. United States, 337 F.2d 699 (9th Cir. 1964), cert. denied 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726. If, as part of that process, a prosecutor may properly indicate the risks in not pleading guilty, whether of a larger sentence or of a larger exposure, see Brady v. United States, 397 U.S. 742, 750, 90 S.[1306] Ct. 1463, 25 L.Ed.2d 747 et seq. (1970),4 we see no reason why the state should necessarily be precluded in all respects from actualizing these risks ,wben the plea is withdrawn. We would be concerned if, through an indiscriminate application of the Pearce rule, the government should always be locked into its side of the bargain when the defendant succeeds in withdrawing from his. Cf. United States v. Resnick, 483 F.2d 354, 358 (5th Cir. 1973); United States ex rel. Williams v. McMann, 436 F.2d 103, 106-107 (2d Cir. 1970). If, for example, a defendant pleaded guilty to one count and the prosecutor dismissed the others, it should be reasonably apparent that the dismissal was in consideration of the plea; if the defendant succeeded in withdrawing the plea, he should not be able to object to the prosecutor’s reviving the other counts. Cf. Santobello v. New York, ante, 404 U.S. at 263 n. 2, 92 S.Ct. 495. That, however, is not necessarily the same as adding a new count which had not entered into the proceedings before.
When the present defendants came on for sentencing as a result of their pleas, a discussion occurred from which the court concluded, correctly or not, that they believed they had a proper reason to expect a one-year sentence. Stating it was not responsible for that belief, and had no intention of meeting it, but, rather, had in mind “straight three year sentences,” the court offered to permit the withdrawal of the pleas, an offer which defendants accepted. Under these circumstances Pearce (Rice) is obviously inapplicable to the three-year sentence the court ultimately imposed on counts 1-3; nor do defendants contend otherwise. We believe, however, that it is applicable, on the facts of this case, to the additional, consecutive sentence5 on count 4 for at least one reason.
The record shows that at the time of the aborted sentence hearing the court was aware of the fact that Gerard had carried a gun. It did not learn of any new facts which could justify a further sentence; it merely announced at the sentencing that at the earlier hearing the facts which supported the later fourth count had been “treated lightly . So I didn’t take that factor into specific account.” This change in the court’s view of the overall facts is not even as favorable to the government as that in Marano v. United States, ante, n. 3, and defendant here is no more assured that vindictiveness did not enter into the resentencing than were defendants in Pearce. Where the rebuttal of the possibility of vindictiveness is by the presentation of additional information, “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding,” the Pearce requirement, 395 U.S. at 726, 89 S.Ct. at 2081, is scarcely met by transferring old facts from the presentence report to a separate count in the indictment. Nor are any other circumstances “affirmatively appearing,” Pearce, ante, at 726, 89 S.Ct. 2072, that might be an adequate substitute. We must, therefore, hold the increase in sentence impermissible.
The situation as to the United States Attorney’s filing the additional count would seem little different. He offers as the sole reason, “As long as the possibility of this agreed disposition existed it would have been pointless for the government to seek additional counts.” Having in mind that he knew all the facts from the outset, the breakdown in the agreement seems scarcely a new reason for not including the count initially. In view of the difficulties we would face in distinguishing this case from Pearce (Rice), we do not propose to try to do so [1307] simply to permit the imposition of what can be no more than a concurrent sentence on a count the government did not think worth bringing in the first place.
The verdicts and j udgments are vacated, and a new trial ordered on Counts 1, 2 and 3. Count 4 is to be dismissed.