concurring in part and dissenting in part:
I.
I concur with the majority to the extent that it holds as follows:
(1) That the convictions and sentences for simple bank robbery and bank larceny, in violation respectively of 18 U.S.C. §§ 2113(a) and 2113(b) (1976), must be vacated in accordance with our prior decisions. United States v. Evans, 665 F.2d 54 (2 Cir. 1981); United States v. Jenkins, 665 F.2d 47 (2 Cir. 1981); Grimes v. United States, 607 F.2d 6 (2 Cir. 1979). Those convictions and sentences were merged in the conviction and 12 year sentence imposed on appellant for armed bank robbery, in violation of 18 U.S.C. § 2113(d) (1976) (which I believe should be affirmed).
(2) That it was discretionary with the district court, not mandatory, to order that appellant’s federal bank robbery sentence be served consecutively to the state sentence appellant is serving.
(3) That there is no merit to appellant’s claim of denial of due process because of pre-indictment delay.
(4) That the issues raised in appellant’s pro se brief are either moot or without merit.
With respect to the remainder of the majority opinion, I disagree — chiefly its holdings (1) that the government was precluded from using plea negotiation evidence for impeachment purposes, and (2) that the district court erred in limiting cross-examination by defense counsel with respect to the pimp-prostitute relationship between two government witnesses. As for the majority’s holdings on these issues, I respectfully dissent for the reasons set forth below.
II.
The majority holds that the government was precluded from using the plea negotiation evidence for impeachment purposes. It says that the government waived its right to introduce the evidence by its pretrial letter stating that such evidence would not be introduced at trial. The majority further holds that in any event the use of such evidence for impeachment purposes is barred by Fed.R.Crim.P. 11(e)(6) and Fed.R. Evid. 410.
I disagree, under the circumstances of this case where there was no prejudice to appellant, that the letter should be regarded as having waived any right the government may have had to use the evidence. The government did not introduce the evidence in its case in chief; rather, it used the evidence only for impeachment. It strikes me as an overly restrictive view of prosecutorial discretion to hold that the government was forever precluded from using the evidence, despite the possibility of a change of circumstances after making the declaration.
*696To me, the only arguable reason for the majority’s holding — curiously, not relied on by the majority — is the possible prejudice to a defendant in stating that the evidence will not be used and then using it. Here, however, there was no prejudice or surprise whatsoever. The government notified appellant before the defense began its case that it would use the evidence. This is a significantly different situation from one in which the government might use the evidence with no advance warning at all. The most that appellant can complain of here is that the evidence was damaging. He cannot claim any bona fide prejudice or surprise.
I do not dispute the proposition that, if the evidence was inadmissible under the Federal Rules in the government’s case in chief, it likewise would be inadmissible for impeachment purposes. The wording of the Rules and the legislative history make this clear. First, the Rules provide that the evidence cannot be used “against the defendant”; the use of the evidence for impeachment clearly is against the defendant. Second, the failure of Congress to include an exception allowing for use of the evidence for impeachment, despite the Senate’s interest in having such a provision, suggests that the use of such evidence for impeachment is foreclosed.
Nevertheless, in my view the Rules do not apply here. Undoubtedly the evidence would be admissible under the current versions of Fed.R.Evid. 410 and Fed.R.Crim.P. 11(e)(6). I would reach the same result here under the previous versions of the Rules in view of the circumstances of this case.
First, appellant contacted an FBI agent— not a prosecutor or an attorney — to try to arrange a deal. Although the Rules in effect at that time did not limit the contacts explicitly to those between a defendant and government attorneys, both the Advisory Committee on Criminal Rules and certain cases concluded that Congress had intended the earlier Rules to be so limited. See 77 F.R.D. 507, 534-35 (1978) (Advisory Committee Note to Fed.R.Crim.P. 11(e)(6)); e.g., United States v. Grant, 622 F.2d 308, 313 & n.3 (8 Cir. 1980).
Second, if we are to be faithful to prior decisions of our Court, there simply were no “plea discussions” within the meaning of the Rules. In United States v. Arroyo-Angulo, 580 F.2d 1137, 1148 (2 Cir.), cert. denied, 439 U.S. 913 (1978), we held that there was no violation of Fed.R.Crim.P. 11(e)(6) when the government used evidence of plea discussions. We stated that factors in deciding whether the Rule forbids such use were that no criminal charges had been filed when the contact was made and that the purpose of the contact by defendant was to stave off his prosecution. In the instant case, no charges had been filed and appellant later admitted that he was negotiating to gain time on the streets. In addition, the agent was not a prosecutor, as appellant knew. Finally, in Arroyo-Angulo the evidence was introduced in the government’s ease in chief, not merely for impeachment as here. Thus there is even stronger reason for holding that the use of the evidence in the instant case was proper.
Furthermore, in United States v. Levy, 578 F.2d 896, 901 (2 Cir. 1978), we held that, notwithstanding Rules 410 and 11(e)(6), the admissions could be received in evidence where the offers of cooperation were made to agents who did not initiate the conversation. Here, by appellant’s own admission, he initiated the contact at which what the majority characterizes as “plea discussions” were held.
III.
With respect to the majority’s holding that the district judge should have allowed the defense to show that a government witness had been convicted of prostitution and had worked for Allen Bell, the principal witness against appellant, I disagree that there was reversible error.
The test in this Circuit as to whether a district judge committed reversible error in excluding such evidence of bias is “whether the jury is in possession of sufficient information to make a discriminating appraisal *697of the witness’ possible motives for testifying falsely in favor of the government.” United States v. James, 609 F.2d 36, 47 (2 Cir. 1979), cert. denied, 445 U.S. 905 (1980). In James, the jury knew that the witness had cooperated with the government in another case and that he had not been indicted despite his involvement. We held that it was not reversible error for the judge to refuse to admit evidence of deals with the government. Accord, United States v. Singh, 628 F.2d 758, 763 (2 Cir.) (“A trial court is allowed wide discretion in the management of the cross-examination of witnesses.”), cert. denied, 449 U.S. 1034 (1980).
Here, the jury knew that Harris and Bell were friends, possibly lovers. They could infer that, if she was associated with an admitted bank robber, she was not of outstanding character and might be inclined to lie. Since Bell and Harris lived together from time to time, the jury could infer that, because Bell had a motive to testify against appellant, so did Harris. Moreover, Harris was not the only witness who testified that appellant was involved in the robbery.
I would affirm appellant’s conviction and 12 year sentence for armed bank robbery. From the majority’s refusal to do so, I respectfully dissent.