dissenting.
Although I wholeheartedly agree with the general observations of the majority concerning the advocate witness rule, I respectfully dissent from the approval of its application to the particular circumstances of this case.
This court has previously held that the United States Attorney is not rendered an incompetent witness merely because of his important office. United States v. Cerone, 452 F.2d 274, 288 (7th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972). In that case the United States Attorney, who was not personally prosecuting the case, was permitted to testify for the purpose of impeaching a defendant’s version of a mutual conversation. In the present case it is true that Assistant United States Attorney Hosteny was personally handling the case, but he absented himself from the courtroom while another assistant handled the suppression hearing. The government urges us to separate the suppression hearing from the trial so as to permit Assistant Hosteny, if allowed to testify in the suppression hearing, to thereafter try the case before the jury. I am not prepared to endorse that view which would unnecessarily weaken the general rule. In keeping with the view of the majority I view separateness as a fiction. It would be better to require the prosecutor to decide whether he is witness or advocate and not wear two hats in the same case. That may at times cause the government some temporary but not insurmountable difficulties.
The defendant testified that he called Assistant Hosteny on the telephone to complain that the government had broken its alleged agreement not to prosecute him. He further testified that Assistant Hosteny responded “you are smuggling dope, and I don’t like criminals,” and “I am putting you in prison.” Contrary to defendant’s version the government offered to prove, by using Assistant Hosteny as a witness supported by his file memorandum of the telephone conversation, that the defendant did not suggest that any such alleged agreement had been either made or breached. The defendant only mentioned, according to the government’s proffer, an alleged DEA offer of the payment of a sum of money for defendant’s cooperation against another defendant. By the trial court’s ruling the government was not permitted to offer impeaching evidence which might have served to discredit the defendant’s other testimony. The government thereby was also prevented from offering affirmative evidence that the alleged agreement was nonexistent by the inference which might be drawn from the absence of any reference by the defendant to that alleged agreement during the relevant telephone conversation. The ruling also served to restrict cross-examination of the defendant.
The careful and experienced trial judge at the conclusion of the suppression hearing informed the parties that he would not consider any of the evidence of the conversation. I do not view that, however, as solving the problem. The trial judge declined to make a credibility determination between an assistant United States attorney and the defendant. That is understandable and usually to be avoided, but in this case it was, in my view, just another of the difficult determinations often facing a trial judge.
It was, after all, the defendant who placed the telephone call to Assistant Hosteny. It was the defendant who voluntarily chose to testify as to the contents of that telephone conversation. The defendant *161raised no objection to the government’s proposed rebuttal by calling Assistant Hosteny. It was the defendant who chose the means of communication which restricted the only possible government rebuttal witness to the one assistant he telephoned.
In these circumstances, where the defendant attempted to take advantage of a situation that was all his own doing, not the government’s, I would permit the government, by the only means at its disposal, to attempt to impeach the defendant and to have the court consider whatever favorable inference might be drawn from the government’s version. Perhaps the government would then have been successful in avoiding the suppression of the defendant’s oral confession made to DEA agents which in the long run could be the difference between conviction and acquittal.