A Government witness, who had been indicted with petitioner,
testified at petitioner's trial that no promises had been made to
the witness regarding disposition of his case. Petitioner, for the
first time on appeal of his conviction, contended that the witness'
testimony was false on the basis of the prosecutor's statements at
the subsequent sentencing hearing of the witness, who had pleaded
guilty to a lesser charge in a superseding indictment. The Court of
Appeals, after examining the transcript of the sentencing hearing,
concluded that no leniency promise had been made prior to the
witness' testimony at petitioner's trial.
Had there been a promise to the witness before he
testified, a reversal of petitioner's conviction would be required,
Giglio v. United States, 405 U. S. 150
Napue v. Illinois, 360 U. S. 264
the factual issue of whether the plea bargain that obviously was
made with the witness preceded or followed petitioner's trial
should have been resolved by the District Court after an
Certiorari granted; vacated and remanded.
At petitioner's trial, a Government witness who had been
indicated 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
Page 415 U. S. 450
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.
(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 evidentiary
grant the petition for certiorari and the motion to proceed in
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
Page 415 U. S. 451
* 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 
n. 1 (2d ed.1974).
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE POWELL join, dissenting.
Petitioner was convicted in the District Court of trafficking in
illegal narcotics in violation of the provisions of 21 U.S.C. § 174
(1964 ed.). The Court of Appeals summarily rejected petitioner's
attacks on the sufficiency of the evidence to convict him, and
dealt in detail only with the Giglio
issue upon which this
Court decides to vacate and remand for consideration by the
District Court. As the Court notes, this was a "factual issue,"
at 415 U. S. 450
and raises no question whatever of general importance in the law.
Commonly I would expect this petition to be denied for those
The Solicitor General, however, has filed a response in this
Court which, though entitled "Memorandum in Opposition,"
incorporates in a footnote a backhanded invitation to the Court to
follow the course which it has now taken. It is well established
that this Court does not, or at least should not, respond in
Pavlovian fashion to confessions of error by the Solicitor General.
See, e.g., Young v. United States, 315 U.
(1942); Gibson v. United States,
329 U. S. 338
329 U. S. 344
n. 9 (1946). I believe there could not be a plainer case than this
one for the invocation of the doctrine of invited error. For
whatever may be the proper allocation of factfinding
responsibilities between the Court of Appeals and the District
Court, petitioner deliberately chose to raise this largely factual
issue for the first time in the Court of Appeals, and to seek
decision upon it there. That the Court of Appeals responded to the
invitation is scarcely grounds for any claim of error here. I would