After a jury trial, Dennis Smith was convicted of conspiring to travel in interstate commerce to carry on an unlawful activity, and the completed substantive act of the unlawful traveling, in violation of 18 U.S.C. Secs. 371, 1951 and 1952. He was sentenced to imprisonment for concurrent terms of one year. Upon due consideration, we remand for a new trial.

The only issue now considered is the possible misrepresentation of the government to the court and to the jury concerning the result of plea bargaining with a co-conspirator who testified as a witness for the prosecution. Other errors raised on appeal, if meritorious, are cured by the remand for a new trial and, therefore, are not considered here.

A key witness for the prosecution in the trial of Dennis E. Smith was Kenneth Wayne Smiddy, an alleged co-conspirator with Smith. A brief history of the interaction between Smiddy and the prosecution is essential for a full understanding of the facts with which this court is faced.

Smiddy, the alleged co-conspirator, was arraigned May 8, 1972, and counsel present were George A. Kokus for the government, and Daniel J. Tribell for Kenneth Wayne Smiddy. Neither the defendant Dennis E. Smith nor his counsel was present. Smiddy entered a plea of guilty after the district judge had ascertained that Smiddy had a full understanding of the proceedings and it was by his own will that he so pleaded.

During that arraignment the court stated that as a result of plea bargaining the government was recommending a sentence of not more than two years. Smiddy's attorney then informed the court that the United States Attorney had agreed that if Smiddy were cooperative in all respects regarding the government's upcoming case against Dennis E. Smith, the government would have no objection to probation.1

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* * *Smiddy's arraignment transcript was not filed until November 14, 1972. Dennis E. Smith's trial was the previous June. The attorney for Dennis E. Smith was not aware that any deal had been made between the government and Smiddy until the government mentioned it four days prior to the trial of Smith. Even then neither Smith's attorney nor the trial court2 was aware of all that was involved in that deal. Neither knew of the government's promise not to object to probation and they were never informed of this fact by the government prosecutor who did know.

The trial of Dennis E. Smith began in June of 1972, and Kenneth Wayne Smiddy was called as a witness for the government on June 21st. During direct examination of Kenneth Wayne Smiddy by the government prosecutor, Smiddy stated that the only deal he had with the government was that in return for a guilty plea he would only get two years in prison.3 On direct examination then it was never mentioned that the government had promised not to oppose probation if Smiddy willingly cooperated and testified at Dennis Smith's trial.

On cross-examination of Smiddy by the defendant's counsel, Smiddy stated that he would have testified with or without the deal. The defense asked no other questions of Smiddy and never learned all that was involved in this plea bargain.

During final argument to the jury at the trial below the attorney for the defendant, in referring to the credibility of the witness Smiddy, pointed to the government's bargain with Smiddy involving only two years in prison.4 It should be remembered that neither the defendant's counsel nor the district judge had any knowledge of the government's promise not to oppose probation. The prosecution, on rebuttal, attempted to re-establish the credibility of his witness, Smiddy, by stating:

Wayne Smiddy and Troy Kivett made a deal with the Government. It was for two years in a federal penitentiary. That is a fantastic deal, ladies and gentlemen. Troy Kivett pleaded guilty to one count which he can serve up to five years in a federal penitentiary. Is that a great deal? (Emphasis added).

This statement, although partially true, was not the whole truth and, in fact, the sentence "It was for two years in a federal penitentiary" was such an affirmative misrepresentation as to make it, as used, absolutely false. The prosecutor who made this statement was the only party at the trial who had knowledge of the entire bargain.

The proof of the pudding is, however, in the eating. On August 16, 1972, Smiddy was given a sentencing hearing before the district judge who originally arraigned him. He was sentenced to two years; however, that sentence was deferred and he was placed on probation. During that hearing, the court stated to Smiddy:

I am giving you a break now. I am inclined to send you to the penitentiary, but in view of the fact that you did testify for the Government and cooperated and all that sort of thing I am giving you a break. . . . .

It should be noted that the government attorney present was quick to point out to the court Smiddy's aid in convicting Dennis E. Smith, stating:

. . . Mr. Smiddy testified in behalf of the Government and the defendants in the other case were convicted. During the trial in front of Judge Choate his cooperation was extensive and his testimony was very valuable.

The government then was performing its part of the bargain with Smiddy by doing all it could to ensure he received probation and not two years in prison. The fact that this was an important part of the agreement between Smiddy and the government was never made known at the trial of Dennis E. Smith.

The government might contend it made somewhat of an attempt to apprise the court and defense counsel of what had transpired at Smiddy's arraignment hearing.5 An examination of the trial transcript shows, however, that any disclosure made was not a full disclosure, and, therefore, falls short of the duty of the prosecutor to comply with the "rudimentary demands of justice." Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

The facts of this case then demand that Dennis E. Smith receive a new trial.

In order to overturn a conviction on suppression-of-evidence grounds,6 the evidence suppressed must have been material or probative. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). In Giglio the petitioner filed a motion for a new tral on the basis of newly discovered evidence, contending that the government failed to disclose an alleged promise of leniency made to the key witness in return for his testimony. At the hearing on this motion, the Assistant United States Attorney who presented the case to the grand jury admitted that he promised the witness that he would not be prosecuted if he testified to the grand jury and at trial. The assistant who tried the case was unaware of the promise. The Supreme Court held that neither the assistant's lack of authority nor his failure to inform his superiors and associates is controlling, and the prosecution's duty to present all material evidence to the jury was not fulfilled and constitutes a violation of due process, thus, requiring a new trial.

The Supreme Court has recognized that the suppressed evidence's materiality requirement may be satisfied even though such evidence would do no more than affect the credibility of a witness whose testimony prejudiced the defendant's case. Giglio v. United States, supra. It should be noted, however, that evidence, to be sufficiently material, must be useful as to discredit a key witness to the point of probably or possibly affecting the result of the trial. Link v. United States, 8 Cir. 1965, 352 F.2d 207, cert. den. 383 U.S. 915, 86 S. Ct. 906, 15 L. Ed. 2d 669 (1966).

The recent Fifth Circuit case of United States v. Tashman, 478 F.2d 129, 1973, 72-2273 clearly delineates the burden of responsibility carried by the government in a case such as the one before this court. Appellant contended in Tashman that prior to trial defense counsel was not informed that an agreement had been reached between the government and one of the co-conspirators on trial. Consummation of the government's part of the agreement was contingent upon the value of the co-conspirator's testimony against the other defendants. This circuit found that the defense had no way of combating the testimony of the government's witness, being unaware of what had occurred. United States v. Tashman, supra, at 131.

The facts before this court then plainly show the defense had no way of knowing all that was involved in the government's deal with Smiddy. Therefore, the government's less-than-full disclosure certainly can be seen to have the same effect here as lack of disclosure did in Tashman. The government failed to disclose information which had a direct hearing on the credibility of the witness.7 Furthermore, as was stated by this circuit in Tashman.

The Supreme Court has made it clear that the failure of the Government to disclose to a jury plea bargaining negotiations with a key witness deprives a defendant of constitutional due process. Tashman, supra, at 131.

The facts before this court present not merely a failure to disclose but also a completely untrue statement made by the government to the court and jury during the course of the trial.8 This type of affirmative misrepresentation by an officer of the court cannot be permitted.9 The facts misrepresented were obviously germane to the defense counsel's impeachment argument. Two years in a federal prison seem far different from two years of freedom only on probation. This difference might easily have had an effect on how cooperative a person might be in his testimony on behalf of the government, and the jury has the right to know all facts relating to a key witness' testimony so as to be better able to judge his truthfulness.

For the reasons set out above, this case is reversed and remanded for a new trial.