dissenting.
I respectfully dissent.
The only difference between this case and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), is that the declarant here took the witness stand and asserted the Fifth Amendment, whereas in Bruton the declarant exercised his privilege against self-incrimination by refusing to take the stand. In both cases an ex parte statement incriminating the defendant was clearly inadmissible and should have been excluded. See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).
The majority reasons that the defendant was not denied the right of cross-examination because the declarant was “available” for cross-examination. This analysis is directly contrary to the government’s admis*503sion in its brief, in urging the admissibility of the statement as an exception to the hearsay rule. The government there asserted:
In the present case the defendant (sic) [declarant] was “unavailable” as a witness under Rule 804, because at the insistence of defendant’s counsel,1 he exercised his Fifth Amendment privilege not to testify, and because he alleged a lack of memory of the subject matter. .
The test for “unavailability” for the purposes of the hearsay rules may not always be the same as that for the confrontation issue. However, where the witness has no recollection of the events and additionally is directed by the trial court that he need not testify by reason of his Fifth Amendment privilege there should be little doubt that he was unavailable for cross-examination under either test. This is particularly true, when the record shows the defense has never had the opportunity to cross-examine him.
The majority decision adds confusion and uncertainty to the law by holding that the ex parte statement was admissible to impeach witness Baker. This analysis is contrary to every precedent, not only those of this circuit,2 but of every other court of appeals as well.3 In fact, no authority exists to support the majority’s holding that “a claimed inability to recall, when disbelieved by the trial judge, may be viewed as inconsistent with previous statements when the witness does not deny that the previous statements were in fact made.”4
The majority relies on United States v. Insana, 423 F.2d 1165 (2d Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970). That case is distinguishable. It not only involved the use of prior sworn testimony, the court there pointed out additional facts not present in this case:
Where, as here, a recalcitrant witness who has testified to one or more relevant facts indicates by his conduct that the reason for his failure to continue to so testify is not a lack of memory but a desire “not to hurt anyone,” then the court has discretionary latitude in the search for truth, to admit a prior sworn statement which the witness does not in fact deny he made.
423 F.2d at 1170 (emphasis added).5
Judge William E. Doyle, writing for the Tenth Circuit, eloquently demonstrates why *504the fundamental rule is contrary to the holding of the majority opinion:
The authorities recognize the danger of allowing prior statements to be freely introduced because of the difficulty of distinguishing between impeachment and substantive evidence. Inasmuch as the only purpose of impeachment is to neutralize the damaging testimony given, the impeaching evidence should be carefully restricted to compensating for the injury inflicted.
It is clear . . . that positive damage and surprise to the party calling the witness are requisite. And the absolute rule remains that a party is not allowed under the guise of impeachment to bring before the jury an ex parte statement of a witness by calling him to the stand when there is reason to believe that he will refuse to testify and when in fact he does so refuse. The party is bound by his refusal and cannot introduce his prior statement by the expedient of asking him leading questions. . . Instead, one is impressed that an effort of the government was to bring about damage in order to justify the introduction of prior statements.
United States v. Coppola, 479 F.2d 1153, 1158 (10th Cir. 1973) [citations omitted]. And Judge Paul H. Roney, in United States v. Dobbs, 448 F.2d 1262 (5th Cir. 1971), observed:
Impeachment is permitted only to remove the adverse effect of any surprise testimony and cannot be used to supply the anticipated testimony.
448 F.2d at 1263 [citations omitted].
In United States v. Morlang, 531 F.2d 183 (4th Cir. 1975), Judge H. Emory Widener, Jr., stated:
[I]t has never been the rule that a party may call a witness where his testimony is known to be adverse for the purpose of impeaching him. To so hold would permit the government, in the name of impeachment, to present testimony to the jury by indirection which would not otherwise be admissible. The courts have consistently refused to sanction such a practice.
531 F.2d at 189.6
Judge Henry J. Friendly dealt with a similar situation in United States v. Cunningham, 446 F.2d 194 (2d Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 302, 30 L.Ed.2d 266 (1971).
[T]he prosecutor’s interrogation of Agent Swayze was clearly improper. It did not constitute allowable impeachment since . “[t]he maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer by which the party is surprised,” and “where the witness gives no testimony injurious to the party calling him, but only fails to render the assistance which was expected by professing to be without knowledge on the subject, there is no reason or basis for impeachment. . . . ” If the question was intended to elicit an answer that could be used as affirmative proof, it falls within the ban of Bridges v. Wixon, 326 U.S. 135, 150-154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945); indeed, the facts are less favorable to the Government than in that case since there the prior statements had been stenographically recorded. . The risk of going further is illustrated by this case where, in addition to the dangers against which the hearsay rule is meant to protect, the issue whether the declarant ever made the statement requires resolution of a swearing contest between himself and the police.
446 F.2d at 197-98 [footnote and citations omitted].
This court said in Goings v. United States, 377 F.2d 753 (8th Cir. 1967):
The only motive the government had in reading the statement in front of the *505jury was an attempt to inject hearsay evidence into the case as substantive proof. If this procedure is approved, then ex parte statements may be substituted for courtroom testimony as long as the witness, friendly or hostile, is present to be cross examined by the other side.
377 F.2d at 762.
All this emphasizes the strength of the rule against admitting prior statements of a witness who has not harmed the prosecutor’s case.
The majority suggests, in any event, there was no prejudice in the use of the statement since the reliability of the out-of-court statement was clear; the statement was not “crucial to the government’s case;” the statement, in effect, was cumulative because of the overwhelming evidence of guilt; and finally, its use was limited by the court’s instruction that the jury was to consider the statement as impeachment only.
In all due respect, I must disagree with this analysis. The record disputes it.
First, the statement is the most abhorrent kind of hearsay; it was not given under oath, and it was oral, later transcribed by agent Brown outside of the presence of the witness from notes allegedly made during his interview. Contrary to the majority’s analysis, and as conceded by the government, the declarant was not available for cross-examination. Furthermore, it is difficult for me to understand how the declarant’s admission of his own guilt makes the reliability of his statement “clear.”
Second, to say that the statement was not “crucial” underestimates the government’s obvious strategy as to its use. The statement served no useful impeachment purpose since Baker had not testified adversely to the government’s case; he simply failed to supply needed testimony. This was an event the government had fully anticipated. The only purpose for admitting the prior statement was to provide for a crucial omission in the evidence — placing the defendant at the scene of the crime. This is made obvious in the government’s closing argument when the prosecution once again read the statement en toto to the jury — not to impeach Baker, but to provide complete identification of the defendant and the alleged details of his participation in the crime. To the layman this would seem a good way to convict the accused. As lawyers, we should know better.
The majority urges that the statement was simply cumulative. None of the four independent eyewitnesses of the robbery could identify the defendant as one of the hold-up men. The' incriminating details set forth by the majority opinion provide sufficient circumstantial proof to submit the question of defendant’s guilt to the jury. However, the defendant attempted to explain these circumstances. With the testimony in such a delicate balance, and without eyewitness identification, it was critical for the government to provide identification through Baker’s statement.
If Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946), is still the law, and if “one cannot say, with fair assurance . . . that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected,” I have grave difficulty in writing off the evidence as “cumulative.”
The court’s limiting statement may have been curative under Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). However, this decision was overruled in Bruton, when the Court observed:
Here the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him, and this is a hazard we cannot ignore. Despite the concededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all. See Anderson v. United States, 318 U.S. 350, *506356-357, 63 S.Ct. 599, 87 L.Ed. 829; cf. Burgette v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319.
391 U.S. at 137, 88 S.Ct. at 135.
In view of the overwhelming prejudice to the defendant I fail to see the curative effect of such instructions.
Principles of fairness provide the foundations to rules governing criminal trials. “Foremost among these concepts is the principle that men should not be allowed to be convicted on the basis of unsworn testimony. Bridges v. Wixon, 326 U.S. 135, 153-54, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945).” United States v. Morlang, supra, 531 F.2d at 190.
I would reverse and require the defendant be given a fair trial..
. Although the defense attorney raised the question concerning the defendant’s possible self-incriminating testimony, it was the trial judge who directed the defendant if he claimed the Fifth Amendment privilege he did not have to testify.
. United States v. Dunmore, 446 F.2d 1214 (8th Cir. 1971), cert. denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972); Goings v. United States, 377 F.2d 753 (8th Cir. 1967); and United States v. Rainwater, 283 F.2d 386 (8th Cir. 1960).
. United States v. Moriang, 531 F.2d 183 (4th Cir. 1975); United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); United States v. Coppola, 479 F.2d 1153 (10th Cir. 1973); United States v. Hill, 481 F.2d 929 (5th Cir.), cert. denied, 414 U.S. 1115, 94 S.Ct. 847, 38 L.Ed.2d 742 (1973); United States v. Cunningham, 446 F.2d 194 (2d Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 302, 30 L.Ed.2d 266 (1971); United States v. Dobbs, 448 F.2d 1262 (5th Cir. 1971); United States v. Johnson, 427 F.2d 957 (5th Cir. 1970); United States v. Miles, 413 F.2d 34 (3d Cir. 1969).
. There is no indication from the record that the trial judge disbelieved the witness. Baker said he recalled giving the F.B.I. a statement, but he did not remember what he said. When questioned later, after government attempts to refresh his recollection by reading the statement, he said he could not recall that that was the statement he made.
. Although it may be possible that Baker was trying to shield the defendant, there exists no evidence that he was trying to protect anyone other than himself by asserting his Fifth Amendment right against self-incrimination. The only evidentiary question answered by the declarant, one of the admitted robbers, was that he was not familiar with the defendant. Even assuming this to be affirmatively harmful to the government’s case, this lone question and answer did not provide carte blanche authority for the government to place in evidence the complete statement of the witness detailing the defendant’s alleged participation in the crime.
. Here the record does not dispute defendant’s claim that the government was fully aware that Baker had similarly refused to testify before the grand jury. The presence of agent Brown throughout the trial is a strong indication that the government anticipated introducing Baker’s prior statement.