(dissenting):
I would affirm the conviction.
The summaries of testimony, which the defendant proposed to use to impeach the witnesses, were not signed by the witnesses, shown to them or approved by them as accurate. The statement of one witness, that he had no reason to think the summary incorrect, did not mean that he was acknowledging the accuracy of a statement that he had never seen. The summaries were simply memoranda prepared by a clerk in the office of the United States Attorney, recording his understanding of what the witnesses told him. It follows that the admissibility of the statements can be sustained only by the application of the doctrine of Howard v. United States, 108 U.S.App.D.C. 38, 278 F.2d 872 (1960).
In the Howard case we held that a summary of the testimony presented at a preliminary hearing, which summary the United States Commissioner filed with the clerk of the district court pursuant to Rule 5(c) Fed.R.Crim.P., was admissible as an official document. I think we should not extend this rule to include a summary prepared by a clerk in the office of the prosecutor. There are obvious distinctions between an official summary prepared and filed by a judicial officer and a memorandum written by a prosecutor’s clerk. Clerks summarizing the statements of witnesses frequently work in haste and under pressure, and as a result their summaries may be inaccurate in some details. I would not extend the rule of the Howard case to such summaries. If a defendant proposes to impeach a witness by proof of a prior inconsistent statement to a prosecutor’s clerk, then the defendant should put the clerk on the stand to testify that the witness made the inconsistent statement. Moreover, since the witnesses here had testified *1317before the grand jury, counsel for the defendant could have obtained the grand jury transcript, the best and most accurate record of what the witnesses had said. Introduction of the secondary material contained in the clerk’s memorandum was therefore unnecessary in fact as well as unjustified in law.
Viewing the record as a whole, I think the evidence established that the appellant was a member of the gang that surrounded and robbed the complaining witnesses. There is no doubt of his guilt. If there was error- — and I think there was not — it was harmless.