I respectfully dissent. Although I agree with the majority that neither the pre-in-dictment delay nor the statute of limitations requires dismissal of the indictment against Rubin, and that the severance of Rubin’s trial from that of his co-defendants was not an abuse of discretion, I dissent from the view that the judgment of conviction should be affirmed. The unusual circumstances of Rubin’s trial which I believe require reversal and a new trial deserve review in considerable detail.
Between July of 1973 and July of 1976 Rubin was interviewed by government agents and attorneys, including Internal Revenue Service Agent Thomas Cox, several times. Rubin was told of the nature of the government investigation, was advised to obtain counsel, and was asked to consider cooperating. He was also told that “the Government was not going to let him walk away.” No written statement was taken from Rubin, but the agents took extensive notes during their interviews. These notes totalled more than 70 pages and were marked Government Exhibit (GX) 66 for identification. Although Cox himself took none of the notes, he testified that he reviewed the notes at the close of each session and believed that they accurately reflected the interviews. Rubin was never shown the notes; nor was he asked to sign them as accurately reflecting the interview; nor were they signed by the agent who had written them. Some of the notes were handwritten and some were typed.
*71Cox took the stand early in the trial. He said he had been present at approximately twelve of the Rubin interviews. He at first had some difficulty remembering when he began attending the sessions with Rubin, saying once “around January 1973” and another time “something like October ’73.” Asked if there were any documents that would help him be more specific, he said the notes of the interviews might help him. Using GX66 to refresh his recollection, he said that January 9, 1974, appeared to be the date being sought. Louis Bender, Rubin’s attorney, objected that Cox was reading the notes rather than refreshing his recollection, and Cox was instructed to use the notes only to refresh his recollection. Cox then proceeded to testify as to what he remembered Rubin saying during the interviews he attended. He constantly was reminded to use the notes only for the refreshment of his recollection.
On cross-examination, Bender began to use the notes to challenge Cox’s recollection of what Rubin had said during the interviews, Bender wanted to show that although Cox had testified that Rubin had said certain things during the interviews, the notes of the interviews did not bear him out. The government then suggested that Bender should offer the notes into evidence, a suggestion Bender characterized as “unnecessary” and “self-serving.” The court, too, said that “if we are going to read from the notes and ask the witness to read from them, they should be in evidence.” Bender then explained that he was treating the notes “like a prior statement made by an agent who was present” and that he had a right “to read a prior inconsistent statement, if it is.” The court then made the following ruling:
THE COURT: It isn’t his statement. He said that he did not write those notes. He said that somebody else made that memorand[um]. He used it to refresh his recollection. So you can’t use that to impeach his credibility. You can use any statement which he made or any report which he made in writing to impeach his credibility. When somebody else has made the notes you can’t attribute it to him.
Bender and the court then made the following agreement — Bender could use the notes to challenge Cox’s earlier testimony where he could show that Cox had relied on the notes instead of his independent recollection, but Bender could not use the notes to impeach Cox’s credibility.1 Cox was on the stand for the better part of two days, going through direct examination, cross-examination, redirect and recross. At least for purposes of this dissent, the most important portion of his testimony is that which follows.
Cox testified on direct as to what Rubin had told the agents about the meetings he had had concerning the approval of the requested loans. For example, Cox said that Deaton, Rubin and James went to the bank with the prepared financial statement, had the loan approved, and then had a discussion afterwards about their success. Cox testified that Rubin had told the agents that this discussion included the following:
COX: Deaton said that Ludwig had to be taken care of.
And he asked Rubin how much should he give him. And Rubin said, “I don’t know. I’ve never paid off before.” And Deaton said, “Well, what about 5 percent?” And he said, “That should keep Ludwig happy.”
On cross-examination, the following exchange took place:
*72BENDER: Because you are trained people, you put down your own thoughts on what you pick up from outsiders on notes when you are interrogating a witness? For example, you have in the notes there the word “payoff.” Did Mr. Rubin ever tell any of you that he made a payoff? COX: Using those two words together, he didn’t — actually, that he said “payoff”? I can’t say he used that expression. BENDER: He said he gave money to Mr. Ludwig and he gave money to Mr. Keat-ing, isn’t that right?
COX: That’s right.
BENDER: Did Mr. Rubin ever tell you that he used the word in talking with you, “bribe”?
COX: I can’t say he used the word “bribe” either, no.2
On redirect, the government offered pages 1 and 2 of the handwritten notes from the interview dated October 10, 1974, as a “prior consistent statement” by Cox, that is, as a prior statement by Cox relating to Rubin’s statements during the October 10 interview regarding payments. The government offered these notes under this theory despite the trial court’s earlier ruling that Bender could not treat the notes as prior statements by Cox for purposes of impeachment, the apparent theory being that Bender had used the notes as “prior inconsistent statements” by Cox, that Cox had “adopted” the notes as his own statements, and that because of the nature of the cross-examination the government was entitled to put in Cox’s “prior consistent statements.” The exhibit was marked GX66A; the text of GX66A is set out in the margin.3
Bender immediately objected:
BENDER: Your Honor, in view of the fact that Mr. Cox has indicated that some of the notations which appear in these notes are notations which were written without any relationship, or that is, were written not from what Mr. Rubin said but their own characterizations, I cannot see how this could be a memorandum of a recollection past recorded as to what Mr. Rubin said to them. Certainly it doesn’t have any credibility, at least as far as this *73case is concerned, what an agent may characterize something to be, rather than what Mr. Rubin himself is reflected as having been said.
So that actually these notes really do not reflect what the agents state Mr. Rubin said and, for that reason, it’s objectionable.
I have no objection to Miss Neugarten going in and asking him any question that I did about the notes and see if it refreshes his recollection; but to put this in evidence as if statements which appear here in this paper come from Mr. Rubin, when this witness said they have not, would be, I think, objectionable.
NEUGARTEN: Your Honor, the witness had indicated that he “adopted the statement,” by reviewing the notes soon after they were taken, believing them to be accurate.
The witness has been cross-examined as to allegedly prior inconsistent statements concerning what Mr. Rubin said.
Given that, I believe that there has been an implied or expressed challenge, either to the witness’ recollection or his credibility, and that as a result I am allowed to permit prior consistent statements.
The court then inquired as to the inconsistency that the government was hoping to clear up by the introduction of the notes, the assumption apparently being that if the government could point to an inconsistency in Cox’s testimony that Bender had uncovered during cross then the government would be allowed to introduce the notes as Cox’s prior consistent statements. The government responded as follows:
NEUGARTEN: Your Honor, two specific inconsistencies have been drawn to the witness’ attention. I believe Mr. Bender’s attack has been to go to peripheral matters and attempt to find inconsistencies, and then he will argue to the jury that they are illustrative of the whole.
He has stayed away like a scared rabbit from the central core, the payments where, of course, the witness has been consistent all the time. But then he has set himself up to argue that something inconsistent as to one thing is inconsistent as to everything.
I think there is such explicit detail on payment here that the jury should be allowed to see the consistency of the prior statement.
Bender objected that the word “payoff” was the word used by the agent who had written the notes and not the word used by Rubin in the interview.
BENDER: Judge, you see he [Cox] has testified that this word is their word, not Rubin’s. He has already testified to this in detail, what appears on this first page. But to put this in, your Honor, after he has already testified to it, is to give a semblance of belief that Mr. Rubin actually used the word “payoff,” just like we said that it was the agents that wrote the notes, that wrote “bribe,” that Mr. Rubin never used that word.
So this is just an attempt by the government to get this man’s testimony which he has already given as to what Rubin said before the jury, by having these notes here.
To this the court responded:
THE COURT: It is true that on direct, [Cox] said “payoff.” On cross, he said he didn’t remember those were his exact words. Now [the government] is going to put this in, to show that that was what he put down initially.
When the government suggested further that the “on take” quotation in the notes was what Rubin had actually said during the interview, Bender again argued that that was what the agent had written down rather than what Rubin had actually said. Bender then argued that the agent who had written the notes, rather than Cox, should be the one to say that the notes were statements of what Rubin had said at the interviews.4 All of his objections were over*74ruled, and the excerpt was admitted into evidence; Cox then recited it orally to the jury-
As explained in the majority opinion, the notes labeled GX66A were not the only ones introduced by the government in this fashion.5 As also explained by the majority, Bender himself was on occasion able to take advantage of the existence of the notes.6 The jury asked to see the notes during the course of their deliberations.
On appeal, Rubin argues that the “erroneous admission of pre-trial interview notes as prior consistent statements of Government witness Special Agent Thomas Cox” requires reversal of the judgment of conviction, Brief at 12, citing as authority this Court’s decisions in United States v. Check, 582 F.2d 668 (2d Cir. 1978), and United States v. Quinto, 582 F.2d 224 (2d Cir. 1978). Because the text of some of these notes dealt with the payments made by Rubin to Ludwig and Keating, described by the government as the “central core” of its case, and because Rubin’s main defense was that although he made the payments they were considered by him to be after the fact tokens of appreciation rather than “bribes” or “pay offs,” Rubin argues further that the error was harmful. For the reasons that follow, I agree with both contentions.
The first question, of course, is whether Rubin’s trial counsel objected in such a way as to allow him to raise this issue on appeal. The relevant rule, Fed.R.Evid. 103(a)(1), provides:
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of ob*75jection, if the specific ground was not apparent from the context.
This Court has on a number of occasions referred to the importance of this rule and the strictness with which it should ordinarily be applied. But if we have learned anything in our deliberations, it is that reciting the rule is much easier than applying it: “The dividing line between specific and general objections is only clear at the extremes . . . . In between are a lot of good faith, though fumbling, efforts to communicate objections . . .” 21 Wright & Graham, Federal Practice and Procedure: Evidence § 5036, at 183. In my judgment, the objections put forth by Rubin’s attorney were, under the circumstances, sufficient to justify reaching the merits of this portion of the appeal.
After rejecting as “self-serving” the government’s suggestion during cross-examination that he be the one to introduce the interview notes into evidence, Bender himself tried to justify the reading of portions of the notes as a device to challenge Cox’s credibility by means of prior inconsistent statements. But, as noted above, the court rejected his efforts:
THE COURT: It isn’t his statement. He said that he did not write those notes. He said that somebody else made that memorand[um]. He used it to refresh his recollection. So you can’t use that to impeach his credibility. You can use any statement which he made or any report which he made in writing to impeach his credibility. When somebody else has made the notes you can’t attribute it to him.
When on redirect the government, the district court’s earlier ruling notwithstanding, offered the notes on the precise and express ground that they were “prior consistent statements” by Agent Cox, Bender, knowing that Cox himself had not written the notes, no doubt assumed that the trial court would reject them on the same basis as was stated in the prior ruling. But this was not to be. Bender then objected that Cox had admitted on cross that the notes included characterizations by the agents of the gist of what Rubin had said rather than statements of Rubin’s actual words; that the notes could not be admitted as a memorandum of past recollection recorded (a well known exception to the hearsay rule);7 and that the agent who had actually written the notes should be the one to state that the notes were accurate statements of what Rubin had said during the interviews, not an agent who was merely present and had not written the notes. At other points, Bender argued that what were being offered as “prior consistent statements” by Cox should not be admitted in the absence of some inconsistency that had been developed on cross between Cox’s testimony on direct and the contents of the notes.
When evidence is offered expressly under the rubric of “prior consistent statement,” and when an objection to that offer is made, the obvious question presented is whether the evidence is admissible as a prior consistent statement. Bender had good reason to assume that it could not be so admitted, given the trial court’s prior ruling on that precise issue. Bender’s objection that the notes could not be admitted as past recollection recorded also should have made it clear that in the absence of an applicable exception the proffered evidence was inadmissible hearsay. Given this “context,” Fed.R.Evid. 103(aXl), I would choose to reach the merits. See also Fed.R.Evid. 102:
These rules shall be construed to secure fairness in administration . . . and promotion of growth and development of *76the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
I note first that, in my judgment, we are limited on this appeal to the question whether the interview notes were properly admitted as prior consistent statements by Agent Cox. As explained in United States v. Check, supra, 582 F.2d at 683, “it would be unfair to consider the admissibility of the evidence for any narrower purpose than that upon which the testimony was unquestionably offered and received at trial.” See also id. at 681-82, quoting Shepard v. United States, 290 U.S. 96, 102-03, 54 S.Ct. 22, 78 L.Ed. 196 (1933). Accordingly, I would refrain from resolving the questions raised on this appeal by reference to the so-called doctrine of completeness. Fed.R.Evid. 106 provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Even assuming that the notes were “introduced” by Bender for purposes of the rule because he “utilized [them] in court,” see Wright & Graham, Federal Practice and Procedure: Evidence § 5075, and assuming that this served to render otherwise inadmissible evidence admissible, compare
Weinstein & Berger, Weinstein’s Evidence ¶106[01], at 106-12, with Wright & Graham, supra, § 5072, at 346, it is my belief that this Court should not go about concocting theories to support the otherwise erroneous admission of evidence. The rule itself provides that the party seeking its benefits is obliged to invoke its provisions. “Like other evidence rules, the completeness doctrine does not automatically apply; it must be invoked by a party.” Wright & Graham, supra, § 5076, at 360. Here, to affirm the introduction of these interview notes by citing Rule 106 would be to apply the rule not only “automatically” but retroactively as well. This I would decline to do.8 And even if I were to decide that the rule should be consulted, I would in this case find that, “in fairness,” the notes should not have been admitted. The government could have accomplished its purpose in this regard by means far less prejudicial. Compare United States v. Lev, 276 F.2d 605, 608 (2d Cir.), cert. denied, 363 U.S. 812, 80 S.Ct. 1248, 4 L.Ed.2d 1153 (1960), with Camps v. New York City Transit Authority, 261 F.2d 320, 322 (2d Cir. 1958). See also United States v. Check, supra, 582 F.2d at 682-83 n. 43. Similarly, this appeal should not be decided by reference to some extension of the rule governing refreshment of present recollection.9 I note as well that it is at least peculiar to treat the interview notes here in question *77as “statements” by Cox of what Rubin had said at the interviews.10 Nevertheless, assuming that the notes were properly deemed to be “statements” by Cox, cf. United States v. Quinto, supra, 582 F.2d 224; Nager Electric Co. v. Charles Benjamin, Inc., 317 F.Supp. 645, 648 (E.D.Pa. 1970), aff’d sub nom. Milwaukee Gear Co. v. Charles Benjamin, Inc., 466 F.2d 588, 591-92 (3d Cir. 1972), I turn to the question whether the notes were properly admitted, either for the purpose of bolstering Cox’s credibility or as substantive evidence that Rubin had made certain statements during the course of the interviews.11 In my judgment, it is quite plain that they were not properly admitted.
Judge Waterman has thoroughly explained the law regarding the admission of prior consistent statements in the recent decisions of United States v. Check, supra, and United States v. Quinto, supra. In Quinto he stated:
For nearly 200 years last past, the courts have enforced, except in certain very limited circumstances, a general prohibition against the use of prior consistent statements. While it is true that the use of such statements to prove the truth of the matters asserted has always been clearly barred by the hearsay rule . the courts have also generally prohibited the use of such evidence even when the proponent of the prior consistent statement was simply offering it for the more limited purpose of bolstering the witness’s damaged credibility. The rationale for excluding most, but not all, prior consistent statements being offered to establish the witness’s credibility is one of relevancy. “The witness is not helped by [the prior consistent statement;] even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it.” There have been situations, however, in which courts traditionally have felt that it is indeed relevant to the issue of whether the witness’s in-court testimony should be believed that on prior occasions the witness has uttered statements which are consistent with his in-court testimony. “Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive.” . . . But the prior consistent statements have been so admissible only when the statements were made prior to the time the supposed motive to falsify arose. . . . Only then was the prior consistent statement “relevant” on the issue of credibility; that is, it tended to make the trustworthiness of the witness’s in-court testimony more probable, after that testimony had been assailed, inasmuch as the consistency of the prior statement with the witness’s testimony at trial made it “appear that the statement in the form now uttered was independent of the [alleged] discrediting influence.”
582 F.2d at 232-33 (footnotes and citations omitted).
The federal rules have not changed the law governing admission of prior consistent statements in order to “rehabilitate,” the credibility of a witness. 582 F.2d at 233; Fed.R.Evid. 402. And while it is true that Rule 801(d)(1)(B)12 changed prior evidentia-*78ry law to the extent that it declares that, under certain circumstances, prior consistent statements are not hearsay, and thus are not inadmissible under Rule 802, and thus are potentially admissible as substantive evidence, 582 F.2d at 233, the test for admissibility for either purpose continues to be the following:
[T]o avoid having the prior consistent statement found irrelevant under Fed.R. Evid. 402 or incapable of satisfying the requirements of Fed.R.Evid. 801(d)(1)(B), the proponent must demonstrate three things. First, he must show that the prior consistent statement is “consistent with [the witness’s in-court] testimony.” . Second, the party offering the prior consistent statement must establish that the statement is being “offered to rebut an express or implied charge against [the witness] of recent fabrication or improper influence or motive.” . Finally, it is necessary that . . . the proponent must demonstrate that the pri- or consistent statement was made prior to the time that the supposed motive to falsify arose .
582 F.2d at 233-34. See also United States v. Check, supra, 582 F.2d at 681 n. 40 (“inasmuch as [the witness’s] prior statements could not satisfy the standards set forth in Fed.R.Evid. 801(d)(1)(B), the statements were not admissible even for the more limited purpose of bolstering the witness’s credibility”). Using this test,13 error was committed.
To the extent that the notes labelled GX66A “say” that Rubin himself used the term “pay off” or the phrase “paid off” during the October 10 interview, they are consistent with Cox’s testimony on direct. Arguably, therefore, the first prong of the three-part test for admission of prior consistent statements is met.14 But I cannot *79say that the government successfully established that the notes were being “offered to rebut an express or implied charge against [the witness] of recent fabrication or improper influence or motive,” the second prong of the three-part test. During cross-examination, Bender began to ask Cox whether the agents had discussed with Rubin the issue of Rubin’s being named as a defendant in any indictment resulting from the investigation. The government objected on grounds of relevance, and was granted a request to discuss the objection out of the hearing of the jury. At the side bar, Bender explained that he believed the agents had discussed immunity with Rubin but that they had conditioned it upon Rubin’s presenting more precise information regarding the conduct of the other TriState principals. When Rubin failed to provide that information, Bender continued, the agents dropped the discussion of immunity and, apparently, recommended that Rubin be prosecuted. The government argued that such discussions could have no bearing whatsoever on Cox’s truthfulness and should not be admitted as if they did. Bender responded that evidence of discussions of immunity “goes to Mr. Rubin’s intent in meeting with these agents fully, in many instances without the lawyer, where he established a rapport with the agents and it certainly goes to show that he [Rubin] didn’t believe he was guilty of anything and that is why he was talking.” The trial court ruled against Bender, and the topic was not pursued. This is not sufficient evidence to support the government’s claim that Bender had made “an express or implied charge against [Cox] of recent fabrication or improper influence or motive.” The government successfully argued to the trial judge that the alleged discussions with Rubin about immunity could have no bearing on Cox’s truthfulness; and Bender was quite clear that the testimony he hoped to elicit from Cox would be used to demonstrate Rubin’s motive while attending the interviews, not Cox’s motive while testifying at trial. Although Bender did hint at such a motive during summation, by then the notes had long since been admitted. He should hardly be penalized for attempting to make the best of a bad situation. In addition, there was no determination by the trial court that the notes were admissible to rebut a charge of recent fabrication or improper influence or motive. Cf. United States v. Herring, 582 F.2d 535, 541 (10th Cir. 1978); United States v. Zito, 467 F.2d 1401, 1404 (2d Cir. 1972). Finally, the government did not demonstrate, in any fashion whatsoever, that the notes were made “prior to the time that the supposed motive to falsify arose,” the third prong of the three-part test. Given the general disfavor with which prior consistent statements have been, and are to be, treated in the federal courts, the proponent of such evidence has a heavy burden in justifying admission. That burden was not met here.
Thus there was error. I do not believe that it was harmless error. Again making reference to Judge Waterman’s Quinto opinion, the standard for determining whether an error of the type committed during the trial below is harmless is as follows:
Regardless of whether there [was] other independently sufficient evidence to convict the defendant, we can find the error harmless only if “our conviction is sure that the error did not influence the jury or had but very slight effect . . . .”
582 F.2d at 235, quoting United States v. Ruffin, 575 F.2d 346, 359 (2d Cir. 1978), quoting Kotteakos v. United States, 328 *80U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). I have no such sure conviction here, especially with regard to the admission of GX66A. Rubin at no time denied having made payments of cash to Ludwig and Keating, but he at all times denied making “payoffs” or “bribes.” Indeed, these payments were the “central core” of the government’s case against Rubin, so described by the government during trial. Bender had succeeded at calling into question Cox’s assertion that Rubin had said during the January 9 interview that he (Rubin) had said to Ludwig, “Look, Ray, if you can see your way clear to help us, we will take care of you.” This, of course, went directly to the issue of Rubin’s knowledge and intent regarding the payments. Bender had also succeeded at getting Cox to acknowledge on cross that Rubin himself may not have used the terms “pay off” or “bribe.” For the government to then introduce the notes as prior consistent statements by Cox, purportedly tending to show either that Cox was being more credible on direct than on cross regarding Rubin’s precise statements or that Rubin had in fact used those terms could have been nothing less than damaging to Rubin’s defense. The fact that the jury asked for the notes during its deliberations and the fact that the jury acquitted Rubin on the substantive count but convicted him on the conspiracy count serve only to buttress my conviction that, far from being harmless, the introduction of these notes into evidence was harmful.
For these reasons I would reverse the judgment of conviction and order a new trial; for these reasons I dissent.
. Compare Fed.R.Evid. 612, which provides in part:
Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh his memory for the purpose of testifying, either—
(1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
See also note 9, infra.
. Earlier in the cross-examination of Cox, Cox had said to Bender that he did not have to rely on the notes in order to recall the “bribe,” meaning the payment of money by Rubin to Ludwig. Bender immediately moved to strike the answer, explaining that Rubin had not used that term in his interview. At this point the government attorney said that if Bender were to ask Cox if the words “paid off’ and “bribe” were Rubin’s or his, that Cox would say they were Rubin’s. The court suggested that Bender ask precisely that question, but Bender said he did not want to ask it because “that’s like putting my head in the lion’s mouth.” The court then told the jury that they were the ones who would have to decide whether the payments to Ludwig were bribes.
. GX66A
[October 10, 1974 Pages 1 & 2
Attended by Rubin and Ruffa (Rubin’s lawyer) and Levitt, DeGroot, Uberall and Cox (of the government) handwritten ]
Pay-off
Day L. approved loan (10-20-72) as per bk. [or “after bk.”]
In st. (R&D) — conv. cont’d — in office W. J. Street D — wants to know — how much $ for L?
R — Don’t know — never pd. off
D — Asks if 5% wld. be o.k.
R — Don’t know.
D — We’ll discuss with J. when back in office. But we better take care of L. on Monday. D & L tell J. abt. L.
Discussion — what to pay “L”
D — Expect [or “Exper.”] — 5% to bankers.
R — Rumors L “on take”
J — Give L something
D — Only 1500 avail, from proceeds after budgeting L will be satisfied & will owe balance to him. Tells R — You know L best — You give money. Tell him there will be more.
Deaton draws ck. to cash ($1500 Endorses.
D — Wants R to cash at bank R — Thought too risky.
R — Will cash at Englewood CC over wkend. R cashes over wk’nd. ■
RD&J
Monday morning in office
R — Have money do you want to turn over now or shld we wait — might be cash short.
D — Instructed to take cash to L. & put in envelope
Coffee shop episode — O.K.
R tells L — more coming.
R then goes to office & tells D & J money delivered.
D&J — L happy?
R — Told L more coming & L seemed to be pleased.
. During its rebuttal case, the government called Edward J. Levitt, a special attorney with the Department of Justice Criminal Division. He testified on direct that he was the person who wrote the notes now known as GX66A. He said that when he took notes during inter*74views he would put quotation marks around “key words:”
Whenever there were what I felt were key words, somebody relating them to me, what I would do is put them down and quote them, that is make quotes around the words meaning those were the words that the person used in describing to me what had occurred.
Thus, the phrase “on take” is quoted in the notes, indicating that Levitt believed Rubin used that phrase to describe what he had heard about Ludwig. The phrase “paid off’ is not in quotation marks. On cross-examination, Levitt testified that Rubin did not use the term “pay off’ during the October 10, 1974, interview:
The answer is at that occasion I do not think he used the term “pay off,” I believe I used the term “pay off.”
On redirect, Levitt testified that Rubin had used neither the term “pay off” nor the phrase “paid off’ during the October 10 interview, and that those terms were his (Levitt’s) characterization of what Rubin had said. He did say, however, that Rubin had used the phrase “paid off’ on a prior occasion, July 19, 1973. My inspection of the notes that appear to be dated July 19, 1973, reveals the following entry: “Keating and Ludwig paid off by Rubin. — c.$4 m.” The phrase “paid off’ is not in quotes.
. For example, GX66B, relating to the Charter Financial asset included in the financial statement submitted to the bank, was offered by the government “as a prior consistent statement of the witness,” Agent Cox, the express purpose for which was “to show Mr. Rubin’s state of mind” as it related to the question whether he knew that the Charter Financial, contract had never been executed. Similarly, GX66C, relating to the imprisonment of Raymond Stams, was offered by the government “as a prior consistent statement of the witness,” again Agent Cox. And GX66D, relating to Rubin’s purchase of All States stock and its listing in the “pink sheets,” was introduced by the government “as a prior consistent statement on the subject of pink sheets.”
. For example, on direct Cox testified that at the January 9 interview Rubin had described the initial contacts between Tri-State (represented by Deaton and Rubin) and Bankers Trust (represented by Ludwig and Keating) regarding the possibility of loans to keep TriState afloat. Cox said that Rubin had said at the interview that, after the meeting, Rubin had said to Ludwig, “Look, Ray, if you can see your way clear to help us, we will take care of you.” On cross, Bender pointed out that the notes included in quotes the sentence, “If you take care of us we will take care of you,” but that immediately after this quotation was the notation, not in quotes, “No — Don’t No.” Cox did not remember Rubin’s making this latter statement. This testimony was, understandably, viewed by both the government and defense counsel as relevant to Rubin’s knowledge and intent with regard to the making of payments to Ludwig and Keating.
Subsequently, Agent Jennings, also present at the January 9 meeting, testified that Rubin had said that Deaton had made the “Look, Ray .” comment, and then had told him (Rubin) about it later.
. Fed.R.Evid. 803 provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
. I note a certain irony in this regard — if on this record it can be said that the government invoked Rule 106, then surely it can also be said that Rubin properly objected to the admission of Cox’s purported “prior consistent statements.”
. See note 1, supra. There can be no doubt, of course, that the notes were properly used to refresh Cox’s present recollection of Rubin’s statements during the interviews. See Portman v. American Home Products Corp., 201 F.2d 847, 850 (2d Cir. 1953); United States v. Rappy, 157 F.2d 964, 967 (2d Cir. 1946), cert. denied, 329 U.S. 806, 67 S.Ct. 501, 91 L.Ed.2d 688 (1947); Fanelli v. United States Gypsum Co., 141 F.2d 216, 217 (2d Cir. 1944). But this itself does not permit or call for the admission into evidence of the item used to refresh. The rule itself provides that only the “adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Moreover, “the portions of the writing which the adverse party introduces may be supplementary in character rather than limited to credibility.” 10 Moore’s Federal Practice § 612.01 [1.-1], at VI-192. “It is fundamental that such memoranda are not admissible unless demanded by opposing counsel, in which event, of course, the purpose of the memoranda is to discredit rather than corroborate the witness’s testimony.” Luse v. United States, 49 F.2d 241, 243 (9th Cir. 1931). See also Eisenberg v. United States, 273 F.2d 127, 131-32 (5th Cir. 1959); Portman v. American Home Products Corp., supra, 201 F.2d at 850. But see Market Service, Inc. v. National Farm Lines, 426 F.2d 1123, 1128 (10th Cir. 1970); United States v. Rappy, supra, 157 F.2d at 967-68.
. Compare, Fed.R.Evid. 801(a); Fed.R.Civ.P. 26(b)(3); 18 U.S.C. § 3500(e).
. There can be no doubt that the government offered these notes at least in part as substantive evidence. At oral argument, Rubin’s attorney asserted that the evidence had been offered both for the purpose of rehabilitating Cox’s credibility and for the purpose of demonstrating the truth of the matters there asserted, the conditions for the latter being outlined in Fed. R.Evid. 801(d)(1)(B). The government attorney confirmed this view at the beginning of her argument:
[T]he offer that the government made was not articulated as a Rule 801 offer but I think the rubric of the offer which is reprinted in the defendant’s brief . . . makes it clear that although the government did not identify the rule by number it was offered as an 801 prior consistent statement.
That the notes were offered under Rule 801 is also assumed in the government’s brief and borne out by the record.
. The rule reads as follows:
A statement is not hearsay if — [t]he declar-ant testifies at the trial or hearing and is *78subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive .
. Despite the analysis in Judge Friendly’s separate concurring opinion, it is my view that we are required to apply the same test whether the evidence is offered for purposes of rehabilitation or as substantive evidence. In Quinto the government offered the IRS memorandum into evidence “to rehabilitate one agent’s damaged credibility and further to prove that Quinto had indeed made certain extremely incriminatory remarks to his inquisitors.” 582 F.2d at 226. See also 582 F.2d at 229 (“the government attempted to introduce the memorandum as a prior consistent statement usable not only to corroborate [the agent’s] in-court direct testimony but also usable under Fed.R.Evid. 801(d)(1)(B) as ‘substantive evidence’ to prove that Quinto had made the fatal admission the IRS agents claim he made”). The Court concluded: “[W]e hold that the memorandum should have been excluded regardless of whether it was offered for the truth of the matters asserted therein or merely for the more limited purpose of rehabilitating the in-court testimony of [the agent].” 582 F.2d at 232, I simply cannot bring myself to characterize this holding as mere “dictum.” The fact that the parties in Check and Quinto did not choose to brief extensively the question whether the memorandum was admissible for purposes of rehabilitation as opposed to substantive evidence should not be used to detract from the strength of the express holding that it was not. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 717-18, 98 S.Ct. 2018, 2049, 56 L.Ed.2d 611 (1978) (Rehnquist, J., dissenting) (“Private parties must be able to rely upon explicitly stated holdings of this Court without being obliged to peruse the briefs of the litigants to predict the likelihood that this Court might change its mind.”). See also id. at 709, n. 6, 98 S.Ct. at 2045 (Powell, J., concurring) (“the mere fact that an issue was not argued or briefed does not undermine the precedential force of a considered holding”).
Even were I to accept Judge Friendly’s analysis on this matter, however, I would still feel constrained to characterize the notes as inadmissible. In my view, assuming dubitante that the notes are “relevant” to the issue of Cox’s credibility, their “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Fed.R.Evid. 403. In this regard, I note that even if the text of the notes had been offered as past recollection recorded under Fed.R.Evid. 803(5), the notes themselves could not have been admitted as an exhibit unless offered by Rubin. The reason for this limitation is quite apparently to prevent the jury from giving undue weight to the physical document itself. See McCormick, Law of Evidence § 299, 712-13 & n. 8.
. I say “[a]rguably” here because this points to the rather bizarre core of this portion of this appeal. Cox did not author the notes labelled *79GX66A; Levitt did. But Cox “adopted” them as statements by him of what Rubin had said at the interview. The notes imply that Rubin himself had used the phrase “paid off.” On direct, Cox testified that Rubin had used that phrase during the interview. On cross, however, Cox testified that Rubin had not used it. Then on redirect the government offered, and the court received, GX66A as a “prior consistent statement” by Cox in order to support his testimony on direct that Rubin had said “paid off.” As it turned out, of course, a subsequent government witness, Levitt, the author of GX66A, testified that Rubin had not used the incriminating phrase and that he (Levitt) had jotted it down as his own characterization of what Rubin had said.