concurring and dissenting:
I concur in parts I, II, and V of Judge Murnaghan’s opinion. I also concur in part IV and thus favor remand for a new trial, but I would add that, left to my own devices, I would reach the same result by a more direct route which does not depend upon an abuse of discretion. I dissent from part III.
Part III of the opinion concerns statements by the United States Attorneys made as part of their closing arguments. I would obtain the same result as Judge Potter in part II of his separate opinion. While I do not necessarily disagree with Judge Potter, I reach this decision for different reasons.
During the two prosecution summations, Brainard’s attorney made four objections, three of which were sustained. In two instances, the court gave curative instructions. Brainard’s attorney did not move for a mistrial at the time of any of these objections, corrected by instruction or not. It was only at the conclusion of both summations and after the jury had been excused that the motion for mistrial was made. Absent particularly egregious circumstances, counsel cannot sit silently through a summation, and then move for a mistrial, claiming that there were prejudicial remarks. United States v. Polytarides, 584 F.2d 1350, 1354 (4th Cir. 1978); United States v. Elmore, 423 F.2d 775, 780-81 (4th Cir.), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54 (1970). Here, the facts are even stronger against awarding a mistrial. The judge gave curative instructions on account of two of the objections. It is patently unfair for defense counsel to allow the closing argument to proceed under the supposition that curative instructions were sufficient, and then claim, at the end of the argument, that such instructions are not sufficient and that a mistrial is necessary.
With respect to part IV of Judge Murnaghan’s opinion, I concur in his opinion and agree that it was improper to prohibit introduction of Moss’ statements to his secretary and that this was reversible error. Nevertheless, I think there is another and more compelling basis for finding it improper.
The government elicited testimony consisting of statements made by Sheldon Moss which were inculpatory of Brainard and Bittick. This was, of course, as the panel opinion points out, hearsay testimony. Nevertheless, testimony by Moss’ former secretary as to statements made by Moss which were exculpatory of Brainard and Bittick was excluded. In attacking hearsay testimony, Rule 806 of the Federal Rules of Evidence provides, in part:
When a hearsay statement . . . has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence that would be admissible for the purposes if declarant had testified as a witness. Evidence of a statement or con*1128duct by the declarant at any time, inconsistent with the hearsay statement, is not subject to any requirement that he may be afforded an opportunity to deny or explain.
The basis for this rule is obvious. As the Federal Rules of Evidence Advisory Committee said: “The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified. See Rules 608 and 609.” By introducing the hearsay statements made by Moss, the prosecution put Moss’ credibility in issue. Prior inconsistent statements are a well recognized means of impeaching a witness. FRE Rule 613.1 The secretary’s testimony, which would have included conversations showing Moss had stated that Brainard and Bittick did not know the true nature of TVM, would have been such an inconsistent statement. As such, it would have been admissible under Rule 806, and failure to admit it was reversible error.2
. FRE Rule 613 concerns prior inconsistent statements by a witness who is testifying. Rule 806 recognizes that inconsistent out-of-court statements could have been made either prior to or subsequent to the hearsay statement originally offered as evidence and thus it allows introduction of “a statement or conduct by the declarant at any time.” See Advisory Committee Note to Rule 806.
. The government also contends that the statements by Moss to others tending to show the guilt of Brainard and Bittick were admissible as the statements of a co-conspirator. Thus they would not be hearsay. FRE 801(d)(2)(E). Even assuming they were the statements of a co-conspirator, the result would be the same, for FRE 806 specifically provides for the impeachment by inconsistent statement of a statement admitted into evidence under FRE 801(d)(2)(E).