(dissenting).
Powers, an attorney, and Fidanzi, his client, were named as codefendants in each count of an eight count indictment. Fidanzi entered a plea of guilty on all eight counts. Powers’ defense was that his participation was as a lawyer, not a principal. The defense was successful on seven of the eight counts. With respect to the one count on which the jury found Powers guilty, the government introduced evidence tending to prove that he personally received the proceeds of two checks amounting to $2,240.
In a prior criminal proceeding, Fidanzi was convicted of wilfully failing to file an income tax return for the year 1964. In that trial the government charged that Fidanzi had unreported income o,f $11,-240, including the proceeds of the two checks for $2,240 which were offered against Powers in this case. Thus, in the Fidanzi trial the government formally contended that the entire benefit of the $2,240 was Fidanzi’s; in the Powers trial the government formally contended that the benefit of the same $2,240 was Powers’. The government successfully prevented Powers from bringing this inconsistency to the attention of the jury.
Because of the difference in parties, and because neither of the inconsistent positions was essential to either verdict, I agree that no estoppel barred the second trial or, indeed, the government’s change of position. I also assume that the mere fact that a government agent had placed a particular interpretation on a past transaction, and either gave testimony or executed an affidavit setting forth that interpretation, would not be admissible except to impeach that agent. Cf. United States v. Santos, 372 F.2d 177, 180-181 (2d Cir. 1967). I believe, however, that a more basic issue is raised when the sovereign itself takes inconsistent positions in two separate criminal proceedings against two of its citizens.1
The inconsistency may be justified or explained by newly discovered evidence or by more accurate analysis of facts which were always available. But in my opinion the fact of the inconsistency may properly be brought to the attention of the jury and the government put to the burden of explaining how it could argue that the same transaction can prove, beyond a reasonable doubt, two mutually *1098exclusive propositions. I think Powers was entitled to prove that the government had formally contended, in the course o.f a criminal trial resulting in the conviction of Fidanzi, that the entire proceeds of the checks for $2,240 constituted income to Fidanzi.2
There is no question in my mind that Powers’ inability to bring this fact to the attention of the jury may well have been the critical difference between his conviction and his possible acquittal. The defect in the record was one “affecting substantial rights” of the defendant within Rule 52(b), Fed.R.Crim.P. Moreover, Powers’ theory of admissibility was plainly explained to the trial court.3 The narrow issue which then remains is whether any of the questions propounded by Powers’ counsel for the purpose of proving the position taken by the government in the Fidanzi trial should have been answered.
Having concluded that the ultimate proposition which Powers sought to establish was relevant, I also conclude that one proper method of bringing this matter to the attention of the jury was through the testimony of the government agent, Kurash, who not only had analyzed the specific transaction but also testified at the Fidanzi trial. Powers proffered his testimony,4 not as in Santos for the purpose of proving that a government agent had made an admission which was binding on his principal, but rather for the purpose of explaining the position his principal had formally asserted in the trial of Fidanzi. I believe the proffered testimony of Kurash should have been received.5
I therefore respectfully dissent. I would reverse and remand for a new trial.
. The United States, like other inanimate persons, must, of course, act through its agents. However, just as formal action by a board of directors may clearly evidence the position of a corporation, so does the formal prosecution of a criminal trial establish the position of the United States and not merely the views of its agents who participate therein.
. In his argument to the jury in the Fi-danzi trial, government counsel stated:
“For ’64 we charged $11,240 and we proved just that. He received a gross income of $11,240. He was supposed to file a return, he knew it, and he didn’t, and he wilfully failed to file.” Tr. 829, United States v. Fidanzi, 411 F.2d 1361 (7th Cir. 1969).
. “MR. BAILEY: Well, Judge, what I think your Honor doesn’t know is that the case against Guido Fidanzi was an income tax case for unreported income. The Government in that case based on the testimony of this witness, that the checks went in his pocket, stuck Guido Fidanzi with this money as unreported income to him and used that evidence as the basis of a criminal conviction and a five-year sentence. I don’t think the Government can stand up in one court in this building and say Guido got the money and then come and stand up in another court in this building and say Powers got the money.” Tr. 504.
. Kurash was the first witness called by the defense; thus, the admissibility of his testimony, unlike the questions propounded to Blazavier, was not limited by the scope of the government’s examination or by the court’s discretion as to the proper limits on cross-examination.
. Moreover, since the trial judge indicated that he considered this line of inquiry irrelevant after having been advised of Powers’ theory of admissibility (Tr. 504-05, 575-76), I am satisfied that no useful purpose would have been served by any further attempts to make an adequate record for appeal. Indeed, proper respect for the trial judge’s position should excuse trial counsel from the necessity of correcting any minor deficiencies in the form of the questions already put.