DeMARCO v. UNITED STATES
No. 73-5684.
Decided March 18, 1974
Per Curiam.
At petitioner’s trial, a Government witness who had been indicted with petitioner, testified that the Government had made no promises to him with respect to the disposition of his case. Petitioner was convicted and he appealed. Meanwhile, the witness had pleaded guilty to a lesser charge contained in a superseding indictment; and at the witness’ sentencing hearing, the United States Attorney made certain statements that petitioner interpreted as proving that promises had been made to the witness prior to his testimony and that the witness had testified falsely at petitioner’s trial. Without presenting the matter to the District Court, petitioner pressed the question in the Court of Appeals. That court accepted the tendered issue, examined the transcript of the hearing at which the witness was sentenced, considered the Government’s response in the Court of Appeals and, although the prosecutor’s remarks were deemed ambiguous and the question thought to be a “close” one, concluded that no promises had been made to the witness prior to the witness’ testimony at petitioner’s trial.
Unquestionably, had there been a promise to the witness prior to his testimony, Giglio v. United States, 405 U. S. 150 (1972), and Napue v. Illinois, 360 U. S. 264 (1959), would require reversal of petitioner’s conviction. It is also clear that there was a plea bargain between the witness and the Government at some point, the question being whether it was made after or before petitioner’s trial. This factual issue was dispositive of the case, and it would have been better practice not to resolve it in the Court of Appeals based only on the materials then before the court. The issue should have been remanded for initial disposition in the District Court after an evi-dentiary hearing. We therefore grant the petition for certiorari and the motion to proceed in forma pauperis, vacate the judgment of the Court of Appeals, and remand the case to that court with instructions to remand the case to the District Court for further proceedings consistent with this opinion.
So ordered.
The Government’s response to the petition for certiorari agrees that factfinding is the basic responsibility of district courts, rather than appellate courts, and that the Court of Appeals should not have resolved in the first instance this factual dispute which had not been considered by the District Court. See, e. g., General Electric Credit Corp. v. Robbins, 414 F. 2d 208, 211 (CA8 1969); Yanish v. Barber, 232 F. 2d 939, 946-947 (CA9 1956). See also 5A J. Moore, Federal Practice ¶ 52.06 [2] n. 1 (2d ed. 1974).
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