Friendly, Chief Judge, Kaufman, Circuit Judge, Clark, Associate Justice.*fn*
Appellants Mele, Beltempo, Cuomo and Coniglio along with Arthur Madonia, now deceased, were convicted by a jury on charges of violations of the narcotics laws. On appeal we remanded for a hearing on a motion for new trial based on newly discovered evidence. It is now here on second appeal with the Government having confessed to the covert use of one of the defendants as an informer, the covert excision of relevant Jencks Act*fn1 material from records given the defense and the concealment of impeaching evidence against its chief witness. This conduct compels us to direct a new trial.
The Government charged, and its proof at trial offered two overt acts in the furtherance of a conspiracy to transfer two kilograms of heroin from Mele to Cuomo. First, by the testimony of Special Agents O'Brien and Maltz, the Government sought to show that Mele, Madonia and Coniglio met on June 30, 1969, at the Pussy Cat Lounge. Both officers testified that on this occasion they overheard Mele instruct Madonia and Coniglio to deliver two kilograms of heroin to Cuomo the next day. Secondly, by the testimony of O'Brien, the Government sought to show that Coniglio and Madonia met with Cuomo and Beltempo the following night and arranged for the transfer. It was accomplished, State Trooper Padula testified, by Coniglio transferring heroin from his car to that of Beltempo. Soon thereafter Beltempo drove away in his car with Cuomo following in an Oldsmobile. A short while later they were stopped by other officers and the heroin was found in Beltempo's car. Coniglio and Madonia categorically denied the Government's proof and the jury by its verdict resolved the direct conflict in crucial testimony in favor of O'Brien and Maltz. This was on March 16, 1971.
On July 30, 1971, while appeal was pending, appellants filed an application for a remand for the purpose of a hearing on a motion for new trial based on the newly discovered evidence that one of the defendants, Madonia, was an informer and that O'Brien had been indicted for perjury. The Government opposed the application through the affidavit of the chief prosecutor alleging as to the informer claim that there was "no credible and relevant evidence to support the motion for a new trial." As to the O'Brien matter, the affidavit stated that the prosecution was not aware of the accusations at the time of the trial of this case. A panel of this court (Feinberg, Mulligan and Timbers, JJ.) denied the motion "without prejudice to the seeking of the remedy from said district court." The appellants then sought relief from the district court. At the hearing a longhand document, dated July 22, 1971, and signed by Madonia but not properly notarized was admitted in evidence. It alleged that he had been arrested and turned informer for the Government on June 27, 1969, and continued as such until a few weeks after his conviction; that he had planted the heroin in Beltempo's car, and that the Government had furnished the heroin and had planned the transfer and sale complained of in the indictment. The Government again contended by affidavit that there was no "credible and relevant evidence" supporting the granting of a new trial. A copy of the Government's affidavit is attached (Appendix A). On September 1, 1971, the district court denied the motion for a new trial without hearing any witnesses, but stated that this was without prejudice to renewal "on an affidavit or affidavits concerning defendant Madonia's assertions." Madonia died of multiple bullet wounds some seven days after the denial of the motion for a new trial. The case then came here for oral argument. The newly discovered evidence was not mentioned in the appellants' brief which had been filed on the same day that the district court denied a motion for a new trial. The Government's brief, filed September 30, 1971, stated only that the informer Madonia "was killed in September, 1971, and his cause has therefore abated." At argument the appellants made reference to the informer status of Madonia, and the court therefore suggested that they file a supplemental brief thereon, which was done on October 20, 1971. On November 22, 1971, the Government filed a memorandum prepared by the Justice Department attorney who had argued the case on appeal but who had not participated in the trial. This memorandum stated, "we deem it our duty to disclose the fact that, since oral argument on October 14, 1971 we have discovered that the deceased co-defendant Madonia had had contacts with the Bureau of Narcotics and Dangerous Drugs." It was the Government's position that although Madonia was a part-time informer for the Bureau of Narcotics and Dangerous Drugs, he had played a dual role and was in fact a full-time criminal participant in the transaction for which he was convicted. The Government continued to assert that Madonia furnished no information relevant to the prosecution in this case. It was also argued that the prosecutor properly withheld the information about Madonia for fear that this information would result in retaliation and harm to him. A copy of this memorandum is attached. (App. B) We then remanded for the purpose of a hearing on the motion for new trial on newly discovered evidence.
2. Developments at the Evidentiary Hearing
The evidentiary hearing produced additional revelations that seriously tainted the Government's case.
At the original trial, no evidence was produced about Madonia's prior arrest on June 27, 1969, and his informer role since that date. In the memorandum submitted to us by the Government on November 22, 1971, some disclosures were made for the first time, but we were assured that "no useful information was developed from" Madonia and that Madonia had been acting on his own on the narcotics transaction charged in the indictment and "gave no information" thereon against these appellants.
The evidence at the evidentiary hearing on the motion for new trial shows, however, that Madonia was an "important informer" for the Government from the date of his arrest on a different narcotics charge on June 27, 1969, to April 1971; that he received exempt status as an informer; that he was paid at least $700 for his services which was charged to this case on the Bureau's records. While the evidence at the evidentiary hearing does not affirmatively show that Madonia furnished information bearing directly on this case subsequent to its filing, that record does reveal that he tipped off Supervisor Vecchione about this very transaction and that his tips led to the arrests on July 1st and this prosecution. Indeed, on June 27, 1969, the very day of his first arrest, Madonia told Supervisor Vecchione of an expected meeting with Mele to transact a transfer of heroin. At that time Vecchione gave Madonia his and Agent O'Brien's telephone numbers so "he could call either one" in the event "something transpired [with Mele] over the weekend." On June 30 Vecchione again conferred with Madonia, and the latter advised of the anticipated meeting that night:
"Q. When you directed your agents to surveil, surveil Mr. Mele, at that time you knew or you had been told that Mele was to meet Madonia that evening; is that correct?
"A. I was told by Madonia that he would probably see Mr. Mele that evening.
"Q. And that was the purpose -- and that is why you directed your agents to surveil Mele; isn't it?
"A. It was one of the reasons."
The following day, Vecchione and Madonia had their third conference in five days on the facts leading up to this case. Assistant Regional Director Holtman of the Narcotics Bureau accompanied Vecchione to Madonia's home on this occasion. The chief prosecutor inquired of Vecchione concerning this meeting:
"Q. I now direct your attention to the date of July 1st; did you see or hear from Madonia that day? . . .
"A. Yes, sir. Myself and my Supervisor went to see Mr. Madonia.
"Q. Where did you see him?
"Q. Did you have a conversation with him?
"A. Yes, sir. I approached him. I asked him what was doing? He said, 'Nothing.' I said, 'When do you plan on seeing Angelo Mele? He said, 'Probably tonight.'
"Q. Did Madonia tell you on that occasion that he, in fact, had seen Mele that night before in the Pussycat Cafe?
"Q. As a result of that conversation with Madonia, what, if anything, did you do?
"A. I went to a telephone booth which was located near a diner on Highland Boulevard and Clo Road and we called the State Troopers.
"Q. What did you tell or request of the troopers when you called on July 1st?
"A. To surveil Mr. Madonia.
"Q. Did you tell them where he might be found, and so on?
"A. Yes, there were other agents present there that joined the troopers. I completely stayed away from there because they knew me but they were briefed as to ...