concurring in part and dissenting in part.
Although the majority believes the primary question before us is the effect of United States v. McNally upon appellant’s mail fraud and related convictions, I am convinced that a principled approach to this appeal begins and ends by assessing the only aspect of this appeal that clearly bears upon every count of appellant’s convictions: the propriety and effect of the district court’s decision to admit into evidence a prosecution witness’s prior hearsay statement. Along with the majority, I conclude that the district court abused its discretion when it permitted the prosecution witness, whose credibility had not been attacked by appellant, to read his prior statement into evidence against appellant. Unlike the majority, however, I am convinced that the government has failed to demonstrate that this error was harmless.
I must note that in this case the Court seems more reticent to recognize prejudicial error than it does routinely in other cases. Just two weeks ago in United States v. Boyce, 849 F.2d 833, 837 (3d Cir.1988), this Court held, in ordering a new trial, that the introduction of a hearsay statement of a co-defendant “was the linchpin in the evidence forming a central and cohesive bridge between the circumstantial evidence and the identity of Boyce as a participant in the burglary.” In the instant case, the evidence improperly used by the same U.S. Attorney was also a “linchpin in the evidence forming a central cohesive bridge” against Asher. Robert B. Asher should have the same rights as alleged *1502burglar Aaron Boyce; both are entitled to a fair trial, and I cannot reconcile the rationale of United States v. Boyce, with the instant case.1 From time immemorial, the U.S. Attorney has been obligated to comply with the rules of the game that are designed to assure a fair trial and a rational jury verdict to each defendant. When the U.S. Attorney breaches those rules and profits from his breach, that abuse cannot be overlooked nor should courts be quick to find harmless error to avoid another extended trial. Appellant’s convictions should be vacated. Because the majority refuses to recognize the prejudicial impact of the district court’s evidentiary error, I respectfully dissent in part.2
I. THE EVIDENCE PRESENTED AND THE PROCEDURAL HISTORY OF THIS MATTER
Because my position is based upon an evidentiary issue, I will, recognizing that what follows repeats parts of the majority’s factual account, set forth the salient facts of this prosecution in some detail. I do so to illustrate the relatively “thin” nature of the government’s criminal case against appellant, a fact that is minimized in the majority’s account of the trial testimony and is of great significance in determining that the evidentiary error was not harmless.
Appellant Robert B. Asher, who was Chairman of the Republican Party of Montgomery County, Pennsylvania, was elected Chairman of the Republican Party of the Commonwealth of Pennsylvania in 1988. Shortly thereafter, he received a call from William T. Smith, who was then an attorney in private practice and the Republican Party Chairman of Dauphin County, Pennsylvania. Smith was calling on behalf of a client, John Torquato, Jr., whose company, CTA, Limited (“CTA”), specialized in the business of recovering overpaid Social Security taxes (“FICA”) for employers and employees. Smith was seeking Asher’s assistance in arranging a meeting between Torquato and Robin Ross, a representative of Richard Thornburgh, who at that time was Governor of the Commonwealth of Pennsylvania. When Asher learned that Ross was not available, he set up a meeting between Torquato and John Pierce, who also worked for the Governor.
On the day of the meeting with Pierce, Smith and Torquato first stopped at Ash-er’s office in Harrisburg. They explained to Asher how FICA recovery provided an easy — and, to the Governor, a politically beneficial — way for Pennsylvania to recover a significant amount of money for itself and its state employees. Smith and Tor-quato expressed to Asher their hope that the Governor’s office would award CTA the contract to perform such recovery. At Asher’s trial, Torquato, who testified as a government witness, claimed that, during this meeting with Asher, Smith specifically mentioned that CTA would make a $500,-000 campaign contribution if it was awarded the contract. Smith, however, who also testified for the government, denied that precise figures were mentioned at this meeting with Asher and added, moreover, that it was Torquato who had mentioned *1503campaign contributions. Smith also noted that Asher did not pursue the issue. Both Torquato and Smith testified that there was nothing improper about this 1983 meeting with Asher.
As the majority notes, Smith and Torqua-to next met with Asher in March 1984. At this meeting, Asher chastised Smith for having recently offered money to R. Budd Dwyer, the Treasurer of the Commonwealth of Pennsylvania, but there was conflicting testimony at trial concerning how and when Asher had acquired his information about this offer. Torquato testified that he and Smith were, at the time of this meeting, the ones who informed Asher that Smith and Dwyer had previously agreed that CTA would make “contributions” of $300,000 ($100,000 to Dwyer, $100,000 to Dwyer’s reelection campaign and $100,000 to the state Republican Committee) to secure the FICA recovery contract. Smith testified, to the contrary, that Asher had learned before this meeting of Smith’s offer to Dwyer, and that Asher was the one who brought it up. Torquato and Smith agreed, however, that Asher was upset, that he told them that they and Dwyer could go to jail for what they were proposing to do, and that Asher said that contributions, if there were to be any, should go to the state Republican Committee.
After this meeting, Smith called Asher on numerous occasions, seeking his aid in getting Dwyer to sit down with CTA to negotiate the contract.3 In addition, Tor-quato and Smith met with Asher on one other occasion. At that time, Smith and Torquato discussed the difficulty they were encountering as they tried to get Dwyer to sit down with them and negotiate the FICA recovery contract.
Dwyer, without soliciting competitive bids, awarded the statewide teacher FICA recovery contract to CTA on May 10, 1984.
In July 1984, the FBI began investigating CTA and the awarding of this contract. Thereafter, Torquato decided to cooperate with the government and pleaded guilty to one count of conspiracy. Smith, who had been indicted in the meantime, attempted to negotiate immunity from prosecution in exchange for his cooperation. The government refused to give Smith immunity and insisted that he plead guilty to a felony count. Smith refused and went to trial, where he took the stand in his own defense and denied offering campaign contributions to Dwyer or to Asher. Asher and Dwyer testified for the defense at Smith’s trial. Smith ultimately was convicted and sentenced to twelve years in prison. Thereafter, the government threatened to indict Smith’s wife and law partner, Judy Smith. At that point, Smith agreed to cooperate with the government in exchange for its promise not to prosecute his wife and in the hope of reducing his own sentence.
The prosecution of Asher and Dwyer then commenced. They were tried together in Williamsport, Pennsylvania. On December 18, 1986, the jury returned guilty verdicts against each defendant on the con*1504spiracy, mail fraud, interstate transportation in aid of racketeering (“ITAR”) and perjury counts. On December 31, 1986, Asher filed a motion for acquittal or, in the alternative, a new trial. On January 27, 1987, the district court sentenced Asher to concurrent prison sentences of one year and one day on the various counts, and it imposed fines totaling $205,000 plus a mandatory special assessment of $50. Joint Appendix (“Jt.App.”) at 1562-63 (Judgment and Probation/Commitment Order). The district court subsequently granted Asher’s motion for release on bail pending appeal, United States v. Asher, Crim. No. 86-00088-02 (M.D.Pa. Feb. 6, 1987), reprinted in Jt.App. at 1597-1604, but it denied Ash-er’s motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) or, in the alternative, for a new trial pursuant to Fed.R.Crim.P. 33. Asher, Crim. No. 86-00088-02 (M.D.Pa. Mar. 20, 1987), reprinted in Jt.App. at 1700-07.
II. THE ERRONEOUS ADMISSION OF SMITH’S PRIOR STATEMENT
A. Factual and Legal Background
In December 1984, William Smith, who was under indictment for conspiracy, mail fraud and ITAR, gave his attorney a written offer of proof. This typed statement, which had been prepared by Smith’s wife from his handwritten notes, Jt.App. at 1187-88, was for Smith’s attorney to use in immunity negotiations with the government. See Government Exhibit 119, reprinted in Jt.App. at 1246-47. In the statement, Smith admitted, inter alia, offering campaign contributions to Asher and Dwyer. Id. The most damaging portion of the statement concerning Asher was its fourth paragraph, which referred to him as CTA’s “principal aide in getting Dwyer to act.” Id. at 1246. At Smith’s own trial in 1985, he contradicted the contents of this earlier written statement when he testified that he had never offered contributions to anyone.4 In 1986, when Smith testified for the prosecution at Asher’s trial, the government sought to neutralize the potentially negative impact of Smith’s prior testimony upon his credibility as a witness by introducing, as a prior consistent statement, his original written offer of proof to the government.
Smith’s prior statement had been made available to Asher’s defense through pretrial discovery, and it was the subject of a motion in limine that was filed, opposed and denied without prejudice shortly after Asher's trial began. Jt.App. at 7-8 (docket sheet); Brief of Appellee at 37 n. 26. At trial,5 Asher, but not Dwyer, objected to the admission of Smith’s statement.6 The district court, which had previously received legal memoranda from both parties, heard additional arguments on this issue at a side bar conference. Asher argued to the district court, as he does on appeal, that the introduction of Smith’s original written statement as substantive evidence against Asher was erroneous and prejudicial.
The district court overruled Asher’s objections, JtApp. at 1195, 1197, and allowed Smith, on redirect examination by the government, to read into evidence his prior written statement, including the key line that identified Asher as CTA’s “principal aide in getting Dwyer to act.” Id. at 1195, 1197.
The district court admitted Smith’s prior written statement as substantive evidence against both Asher and Dwyer under Federal Rule of Evidence 801(d)(1), “Prior statement by witness,” which provides that
[a] statement is not hearsay if— ... [t]he declarant testifies at the trial or hearing *1505and is subject to cross-examination concerning the statement, and the statement is ... consistent with the de'clarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....
Fed.R.Evid. 801(d)(1)(B). Asher claims on appeal that the district court’s decision to admit the evidence pursuant to this Rule was an abuse of discretion for three distinct reasons. First, Asher claims that the evidence was improperly admitted because he, unlike his co-defendant Dwyer, had not attacked or even questioned Smith’s credibility. Asher argues, therefore, that, because the portion of Smith’s written statement that concerns Asher was not properly introduced under Rule 801(d)(1)(B)’ “to rebut an express or implied charge against [Smith] of recent fabrication or improper influence or motive,” id, it was inadmissible hearsay. Second, Asher argues that the evidence was improperly admitted because the statement is not “consistent with [SmithJ’s testimony” at Asher’s trial. Id. Finally, Asher alleges that the evidence was improperly admitted because any motive that Smith may have had to fabricate his trial testimony already existed at the time he made his prior statement to the government.
On this difficult evidentiary issue,7 the panel is in agreement that the district court abused its discretion because the government was not entitled to put Smith’s statement into evidence against Asher. This conclusion has both legal and factual components. The legal component, on which our standard of review is plenary, involves the interpretation of Rule 801(d)(1)(B). The majority concludes, albeit implicitly, that, under the rule, credibility attacks on a witness by one defendant do not suffice to make that witness’s prior statements admissible under Rule 801(d)(1)(B) against the co-defendant(s).8 The factual component concerns the conduct of Asher’s defense in relation to the testimony of witness Smith. The Court again is in agreement, based upon a thorough review of the relevant trial transcripts and drawing all inference in favor the government, see, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Provenzano, 620 F.2d 985, 989 n. 4 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980), that the district court’s finding that Asher called Smith’s credibility into question was clearly erroneous. To clarify the basis of the Court’s evidentiary holding, I will address these arguments in turn and in considerable (but, to my mind, necessary) detail.
B. Asher’s, Not Dwyer’s, Is The Defense That Counts
The plain terms of Rule 801(d)(1)(B) indicate that the first prerequisite to the introduction of a witness’s prior statement is that the statement must be offered to rebut an attack on the witness’s credibility. In this case, the record demonstrates that Paul J. Killion, Dwyer’s trial attorney, directly and vigorously attacked the credibility of the trial testimony offered by the government’s cooperating witness, William Smith. Thus, when the United States Attorney, on redirect examination, asked Smith to read into evidence those portions of his prior statement that concerned Dwyer, it is not surprising that Killion raised no objection. See Jt.App. at 1189. As the district court noted in passing, there was simply “[n]o question about Mr. Killion and Mr. Dwyer” having opened the door to the admission of such evidence. Id. at 1192.
*1506The Court rejects the notion, however, which is implicit in many of the government’s arguments, that Killion’s attacks upon Smith’s credibility were, by themselves, sufficient to make Smith’s prior statement admissible against both Dwyer and Asher under Rule 801(d)(1)(B). Although this rule describes the event that makes such evidence admissible as “an express or implied charge against the declar-ant of recent fabrication or improper influence or motive,” Fed.R.Evid. 801(d)(1)(B) (emphasis added), without specifying who must make that charge, the rule does not seem to contemplate situations where more than one individual would be the subjects against whom the adverse evidence is being introduced, e.g., the codefendants in a criminal trial with multiple defendants.9 The rule apparently was written for the simple world of straightforward, two-party trial proceedings; its language does not address more complicated proceedings with multiple parties on one “side.” In this regard, it is particularly telling that the Advisory Committee’s Note to Rule 801(d)(1)(B) discusses “the opposite party [who] wishes to open the door for [a prior statement’s] admission in evidence....” 56 F.R.D. 183, 296 (1973) (emphasis added). This reference to the conduct of an individual litigant reinforces the logical conclusion that the rule’s reference to “a[] ... charge” of fabrication does not indicate that any charge by any party renders admissible that witness’s prior statements concerning every party on that side of the case. Instead, the rule guarantees that the prior statement of an adverse witness may be admitted against a party only after he or she has opened the door to the statement’s admission.
The threshold issue that concerns us here — whether the statement was admitted to rebut a particular party’s “express or implied charge of recent fabrication or improper influence or motive” — has not been contested in any case in which this Court has dealt with the admission of a witness's prior statement under Rule 801(d)(1)(B). In Provenzano, however, where the appeal arose from the prosecution of multiple defendants, this Court found that the witness’s prior consistent statement was “relevant to rebut the defense claim — express or implied — that [the witness] was lying against all the defendants in return for benefits from the Government.” 620 F.2d at 1001 (emphases added); accord United States v. De Peri, 778 F.2d 963, 977 (3d Cir.1985) (one-defendant trial; witness’s prior statement was offered, “[o]n re-direct examination, to rebut defense counsel’s implied charge that [the witness] constructed [ ]his story as a bargaining chip when [he] sought immunity from prosecution”) (emphasis added), cert. denied sub nom. Pecic v. United States, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and sub nom. Katz v. United States, 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986).
Provenzano and De Peri demonstrate a clear concern on the part of this Court to note exactly who made the accusation that prompted the prosecution’s introduction of a witness’s prior statement,10 and to admit such a statement only against a defendant who has opened the door to such rebuttal evidence. In doing so, these decisions properly recognize that personal triggering is a prerequisite to the admission of a witness’s prior statement under Rule 801(d)(1)(B) against a party. In other words, the prior consistent statement of a *1507witness may only be introduced into evidence against a party who has made a direct or implied charge that the witness is not credible.
I recognize that, in the context of a criminal trial with multiple defendants, one defendant’s attacks on the credibility of a government witness may redound to the benefit of the codefendants.11 The theoretical possibility of such free riding does not, however, call for an unprecedented and open-ended reading of Rule 801(d)(1)(B). Indeed, an argument that our decision gives Asher, on the one hand, the benefit of Dwyer’s attack on Smith’s credibility while, on the other hand, allowing Asher to exclude Smith’s prior statement simply by stating that Asher, after all, was not the one alleging fabrication by Smith, would, as Judge Newman once wrote, “ha[ve] things backwards.... ” United States v. Figueroa, 618 F.2d 934, 940 (2d Cir.1980).
It is the Government that is trying to enjoy the benefit of having put [Asher] on trial with [his] co-defendant[ ] and then offering evidence against him on grounds available, if at all, only as to his co-defendant[ ]. The advantages to the prosecution of a joint trial do not include that maneuver.12
Id.
Having explained why, as a matter of law, Smith’s prior statement was not admissible against Asher merely because Dwyer attacked Smith’s credibility, I will now turn to the next step in the argument, which is the factual aspect of this appeal. Although the majority brushes by many of the government’s factual arguments, I believe that a court that is often the court of last resort owes both sides a fuller explanation of its reasoning. Accordingly, I will examine the trial transcript to determine whether the district court was clearly erroneous in finding that Asher, through his attorney, made a direct or implied charge that Smith’s trial testimony was recently fabricated or otherwise improperly influenced or motivated.
C. Asher’s Defense Did Not Include The Requisite Attack on Smith’s Credibility
1. Hundley’s Opening Statement
The government’s most direct argument that Asher did attack Smith’s credibility is based upon the opening statement of William G. Hundley, Asher’s attorney, which told the jury that
you’re going to hear, as you’ve heard already from Mr. West, the United States Attorney], you’re going to hear a lot of evidence about how Smith and Tor-quato came in with the evil intent of corrupting the Commonwealth of Pennsylvania. Certainly we’re not disputing that at all[,] that these two now convicted felons did this, and that as Mr. Killion indicated, you should view their testimony with great suspicion.... Please, you’re going to hear a lot'of things about what these two convicted felons[, i.e., Torquato and Smith,] did in Pennsylvania which you’re not going to like and you shouldn’t like.... All I ask you to do is don’t let that influence your decision, your judgment of Robert Asher.
Jt.App. at 141-42. While this passage may be construed as a promise of a forthcoming *1508attack on Smith’s credibility, an opening statement is not, unlike cross-examination of the government’s witnesses, a substantive part of the defense. Cf. United States v. Green, 648 F.2d 587, 595 (9th Cir.1981) (per curiam) (“An opening statement, ... having no evidentiary value, cannot operate to place an issue in controversy.”). In the context of this particular ground of Asher’s appeal, it is significant that the relevant subsection of the Rule is called “Prior statement by witness,” Fed.R.Evid. 801(d)(1) (emphasis added), that it applies only to those instances where “[t]he de-clarant testifies at the trial or hearing and is subject to cross-examination ... ”, id. (emphases added), and that this subsection provides specifically that such a prior statement may be “offered to rebut an express or implied charge against the declar-ant_” Fed.R.Evid. 801(d)(1)(B) (same). No one can be such a “declarant,” of course, until he or she has taken the stand and testified.13 A defendant’s opening statement, standing alone, thus does not, within the meaning of this evidentiary rule, constitute an attack on the credibility of a forthcoming witness.14
In addition, even if an opening statement could open the door to the admission of a witness’s prior statement, the record does not support an inference that this was such a case. At the time Hundley made the quoted opening statement, he knew only that Torquato and Smith were cooperating with the government and had agreed to testify against Asher and Dwyer. He did not know — and could not have known— what specific testimony each of these prospective witnesses would offer against each of the defendants. Discovery had alerted Hundley to the fact, however, that Smith’s story was much more favorable to Asher than was Torquato’s. Accordingly, Hundley told the jury, just minutes before he made the portion of his opening statement quoted above, that
in this case there will really only be two witnesses against Mr. Asher. Those two witnesses will be Mr. Torquato and Mr. Smith, ... and there is going to be substantial contradictions [sic] between the two Government witnesses, Torquato and Smith....
Jt.App, at 133-34. Hundley also noted, referring back to the prosecutor's opening statement, that “Mr. West ... has a prob*1509lem with Mr. Torquato because of his credibility id. at 137; Hundley did not, by contrast, indicate that he or anyone else had a definite concern about Smith’s credibility. Thus, whatever its legal significance, it would have been clearly erroneous had the district court found that Hundley’s opening statement, read as a whole and in context, indicated that attacking Smith’s credibility would definitely be part of Ash-er’s trial defense.
2. Hundley’s Cross-Examination of Smith
a.
Hundley began his cross-examination by explaining to Smith the guideline that would govern the questioning: “All right, sir. I want to ask you some questions, and we’ll try to confine my questions strictly to the testimony you’ve given about my client, Mr. Asher.” Jt.App. at 1100. The record indicates that much of Hundley’s questioning drew out Smith’s neutral, and in many instances favorable, testimony. One example is a line of questions concerning Tor-quato’s practice of sending Asher copies of CTA FICA recovery proposals and related correspondence prepared by CTA:
Q Now, about the same time [as the Torquato-Smith-Pierce meeting,] we’ve had testimony that a copy of the proposal was sent to Mr. Asher, is that correct, sir?
A I didn’t testify to that. I believe that Mr. Asher got a copy of it, yes. And that came from John Torquato.
Q Did you instruct Mr. Torquato to send that proposal?
A No, I didn’t.
Q Did you ever instruct Mr. Torquato that Mr. Asher should be cc’d on this various correspondence?
A No, that was Mr. Torquato’s doing.
Q Did you ever instruct Mr. Torquato that blind cc’s should be sent to Mr. Asher?
A No.
Q Did Mr. Asher ever ask you to have all this correspondence and proposals sent to him?
A No. He never mentioned to me that he was receiving it.
Q It’s your testimony, sir, that it was just Mr. Torquato who on his own decided to send these proposals, blind cc’s, letters to Mr. Asher?
A No. My testimony is that I didn’t ask him to do it and didn’t know how it happened.
Q You’re quite correct, sir.
Id. at 1115-16. Another example is Hund-ley’s final question concerning the first Torquato-Smith-Asher meeting (the one that moved Asher to set up a meeting for Torquato and Smith with a representative of the Governor’s office):
Q So would it be fair to say, sir, that the sum result of your first meeting with Mr. Asher on FICA recovery for state employees was that he set up one meeting with Mr. Pierce?
A Yes.
Id. at 1118. A final, and perhaps the most indicative, exchange occurred when Hund-ley questioned Smith about the March 1984 meeting between Torquato, Smith and Ash-er:
Q Now, you testified on direct that at some point during this meeting, and I’m trying to quote your testimony accurately[,] that an angry and upset Mr. Asher chastised you?
A Yes, he did. He was upset that I would make an offer of a contribution to Mr. Dwyer while we were negotiating a contract with him.
[H]e indicated that he had had a conversation with Mr. Dwyer, and he knew that I had made an offer to him of a $300,000 contribution, and then he was very angry when he began to talk about that, angry with me. Said he thought I knew better than to offer a contribution to Mr. Dwyer, and he said if there was going to be a contribution, it was going to go to Republican State Committee.
*1510Q Was he in essence telling you that it was wrong for you to have offered a bribe?
A I believe that he was saying it was wrong for me to have offered that. He didn’t use the word bribe. He used the word contribution.
Q He did say — warn you that if you did it that way, you could go to jail?
A He didn’t want to see anybody go to jail.
Q He didn’t want to see anybody go to jail.
A He didn’t say, Smith, you’re going to jail for that. He said I don’t want to see anybody going to jail, and there will be no contribution to Dwyer.
Q But the one that he was principally chastising and lecturing, if I could use that paraphrase, was you?
A Absolutely.
Q And as far as you were concerned[,] after you had received this very stern warning and jail lecture, was that the end of any bribe offers as far as you were concerned?
A I felt very bad about that. I felt bad from the moment I talked to Mr. Dwyer. It was a very, very upsetting period of time for me. Although when we went out of the meeting, Mr. Torquato[,] instead of saying we’re not going to give anybody any contributions or we’re going to give contributions to the State Committee, he said, well, we’re in a fix now. We owe them each 300,000 big ones.
Q Now, your testimony though, sir, is that after Mr. Asher chastises you on this matter that he says if there’s going to be any campaign contribution, it’s going to come to the State Committee, right?
A Yes.
Q And I noticed that in all of your [statements to the FBI] and your Grand Jury testimony and all of your prior statements to the government, you had always said that that [was] what Mr. Asher said[,] that if there’s going to be any campaign contribution, it goes to the State Committee?
A Yes, that’s what he said.
Q And isn’t it a fact, sir, that after Mr. Asher had chastised you and had said that he didn’t want anybody going to jail and that if there was going to be any campaign contribution, it would come to the State Committee, that that was the last time that he ever mentioned that campaign contribution to you?
A That was the last time he ever mentioned it to me, and I never mentioned it to him.
Id. at 1121-25.
Although there are obvious limits to a reviewing court’s ability to determine, merely by reading the pages of a trial transcript, the thought processes of a lawyer conducting cross-examination, the only plausible inference — supported both by the extensive passages I have quoted, and by other testimony that my colleagues and I have read — is that Smith’s testimony set forth a version of events that Asher, via Hundley, thought he could explain to the jury, justifying Asher’s conduct as politically motivated but not criminal. Thus, at the commencement of Hundley’s re-cross-examination, nothing in the record indicates that he was attacking Smith’s credibility. The questions, rather, reiterated what already had been established:
Q And I cross examined you at some length yesterday afternoon strictly about my client, Mr. Asher. Is that a fair statement, sir?
A I would say that your questions were directed about Mr. Asher’s involvement in this case, yes.
Q Right. And is it not a fact that you answered all of my questions about Mr. Asher’s involvement, as you say, truthfully?
A Yes. Yes, I have.
Q And sir, until I cross examined you in behalf of my client yesterday, had I ever talked to you about this case or the evidence in this case?
A No, sir, you never talked to me about the case. We had about two brief handshake discussions in Mr. West’s office.
Jt.App. at 1222. Indeed, at the end of re-cross-examination, Hundley asked ques*1511tions that can only be viewed as emphasizing the veracity of Smith’s testimony:
Q Is basically what you’ve testified to about Mr. Asher in this trial?
A Yes.
Q All right. And your testimony is that you have testified truthfully about Mr. Asher in this trial.
A Yes.
Q And your further testimony is that you answered all of my questions about Mr. Asher truthfully.
A Yes.
Q All right.
MR. HUNDLEY: That’s all I have, Your Honor.
Id. at 1230.
The trial transcript, read as a whole, therefore provides no basis for an inference that Hundley’s cross-examination attacked Smith’s credibility or implied that Smith had recently fabricated his testimony. I now turn to the specific arguments to the contrary that have been asserted by the government.
b.
The government’s first claim is that questions concerning the presence of other people at Smith’s meetings with Asher, see, e.g., Jt.App. at 1108, 1121, implied that the Smith-Asher meetings were innocent ones; that implication, in turn, is claimed by the government to be inconsistent with Smith’s trial testimony. The claim that Hundley’s questions made such an implication may, to a degree, be correct. The argument goes no further, however, because any such implication would be consistent with Smith’s testimony concerning those meetings; the questions, in other words, did not impeach any of Smith’s testimony at Asher’s trial. In addition, it was the prosecutor, on direct examination of Smith, whose questions elicited testimony concerning the presence of other people during the Smith-Asher meetings. Jt.App. at 739-40, 795. In general, I fail to understand how cross-examination that replicates direct examination can constitute a claim that a witness is fabricating his or her testimony.15
The government’s second claim is more powerful. It focuses upon Hundley’s questions of Smith concerning the assurances that he had given to Asher prior to Smith’s trial. The government claims that these questions — which elicited admissions that Smith had told Asher that Smith would be taking the stand in his own defense, see Jt.App. at 1141-43, and that Smith had “always take[n] a position with Mr. Asher that [Smith] had done no wrong, and [Ash-er] said he did [sic] no wrong,” id. at 1145 —were designed to imply that Smith told the truth at his own trial and, thus, that he was lying at Asher's trial. I conclude that it would be clearly erroneous to draw such a complex inference from this opaque portion of the trial record. Hundley, following up on part of West’s direct examination, did ascertain that a Smith-Asher conversation in a Holiday Inn parking lot the night before Smith’s trial was “a chance meeting,” id. at 1141, but Hundley’s questioning immediately thereafter was concerned with the assurances that Smith gave to his own attorney. Id. at 1142-45. Moreover, the government’s claimed implication of fabrication is not supported by anything in the clarifying, and concluding, line of questioning that followed:
Q I believe, sir, you testified that your attorney advised you to testify.
A He came up here [to Williamsport]. And [my attorney and his partner] talked to me about some recent [Supreme] Court decisions that said that I would have to tell the truth on the stand. And I told them that I was — the story I was going to tell was going to be the truth, when, in fact, it was not.
*1512Q Mr. Smith, how did you reconcile this with the proffers that [your attorney] had been making to Mr. West?
A How did I reconcile that with that?
Q Yes.
A I told them that that was not true, the proffers were not true, the night before I testified.
Q You told [your attorney] that the proffers were not true?
A Yes, the night before I testified.
Id. at 1150-51. This line of questioning did no more than establish the sequence of events that preceded Smith’s decision to testify at his own trial.
The government’s third claim is that Hundley, by mentioning during cross-examination the existence of Smith’s prior statement, opened the door to its introduction as substantive evidence for the prosecution. This argument is predicated solely upon speculation about Hundley’s intent in making a number of passing references to the statement, and it is not supported by anything that Hundley actually said. Hundley made no reference to the contents of Smith’s prior statement and did not ask Smith whether his prior statements to the government were consistent with the direct testimony that he was in the process of giving at Asher’s trial. Indeed, as we read the transcript, the only permissible inference is that Hundley curtailed his questioning in this sensitive area. By only mentioning the existence of Smith’s proffer, Hund-ley did nothing to give the government a basis for introducing that prior statement into evidence.
The government’s fourth claim is that Hundley, through a passing reference to the government’s threat to indict Smith’s wife, implied that he had a motive to lie. This argument has no merit. The “slip" by Hundley that this argument relies upon occurred in the brief that Asher filed with this Court, not in Hundley’s cross-examination of Smith at trial. See Brief of Appel-lee at 40-41 (quoting “Page 12 of Defendant Asher’s Brief”). By contrast, the trial transcript reveals that there was no mention of the threat to indict Judy Smith in Hundley’s cross-examination of William Smith.16
c.
To summarize this factual analysis, a thorough review of the trial transcript convincingly indicates that there is record support for only one reasonable inference; Hundley was scrupulously careful not to attack Smith’s credibility. This is true is as a general matter, and the government’s specific arguments to the contrary, focused upon particular passages of Hundley’s cross-examination of Smith, each lack merit. The record discloses no evidentiary basis for the district court’s finding that Ash-er’s attorney implied that Smith’s testimony was a recent fabrication. Thus, as to Asher, the panel is in full agreement that *1513Smith’s prior hearsay statement that Asher was CTA’s “principal aide in getting Dwyer to act” was not admissible under the exception of Rule 801(d)(1)(B).17
D. Admission of Smith’s Prior Statement Was Not Harmless Error
At this late point in the evidentiary analysis, the majority and I part company. The Federal Rules of Criminal Procedure provide that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed. R.Crim.P. 52(a); accord Fed.R.Evid. 103(a). In this appeal, where the error at trial was not of a constitutional dimension,
we must apply the “highly probable” standard of appellate review to determine the harmlessness of the error. Government of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.1976). “High probability” requires that the court have a “sure conviction that the error did not prejudice the defendant,” but [it] need not disprove every “reasonable possibility” of prejudice. United States v. Jannotti, 729 F.2d 213, 219-20 & n. 2 (3d Cir.1984) [, cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984)].
United States v. Grayson, 795 F.2d 278, 290 (3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1899, 95 L.Ed.2d 505, and sub. nom. Robinson v. United States, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987). In assessing the harm caused by the district court’s erroneous admission of Smith’s hearsay statement against Asher, the beneficiary of the error — i.e., the government — bears the burden of demonstrating its harmlessness. United States v. Molt, 615 F.2d 141, 145-46 (3d Cir.1980).
The government’s only specific argument concerning harmlessness, which the majority accepts, is a brief and undeveloped allegation that Smith’s prior statement was cumulative to the testimony of John Rogers Carroll. Carroll was Smith’s trial attorney. Once Smith began cooperating with the government, he released Carroll from the ethical constraints and confidences of their attorney-client relationship. Carroll thus testified for the government at the trial of Asher and Dwyer.
Carroll’s testimony fails adequately to support the government’s contention that the admission of Smith’s prior statement did not prejudice Asher’s rights. As an initial matter, it is significant that Carroll’s testimony at trial occurred after the district court overruled Asher’s objection and permitted Smith to read his prior statement into evidence.18 Further, apart from this obvious problem of sequence, Carroll’s testimony fell far short of providing the kind of “formidable array of other evidence,” United States v. Engler, 806 F.2d 425, 430 *1514(3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987), that would make it highly probable that the admission of Smith's statement did not affect Asher’s rights. Indeed, although Carroll’s testimony fleshed out some of the details concerning how Smith’s prior statement originally was offered to the government in an attempt to negotiate immunity for Smith, Carroll’s testimony in no way duplicated the contents of Smith’s statement. The excerpt from Carroll’s testimony that the majority quotes simply contains nothing that is comparable to Smith’s crucial characterization of Asher as CTA’s “principal aide in getting Dwyer to act.” In addition, Carroll’s testimony generally corroborated Smith’s testimony that Ash-er, notwithstanding Smith’s pestering phone calls, vetoed the bribery scheme that Smith and Torquato had negotiated with Dwyer. For all these reasons, the majority’s claim that Smith’s statement was harmless because it was cumulative to Carroll’s testimony is, given the record, factually indefensible.19
Two undisputed facts explain why the government is, in this case, unable to meet its burden of showing that the introduction of Smith’s prior statement did not prejudice Asher. One is the fact the Smith’s prior statement, Government Exhibit 119, was transmitted to the jury during its deliberations along with all the trial exhibits. Memorandum Of Points And Authorities In Support Of Motion of Defendant Asher For Judgment Of Acquittal Or, In The Alternative, For A New Trial at 24, re-printed in Jt.App. at 1632. The fact that Smith’s written statement was physically available, on paper in the jury room, for the jury to consider during its deliberations is enough to view it as playing a significant role in the jury’s determination.20
The other salient fact that refutes the government’s harmlessness contention is the graphic and forceful way that Smith’s prior statement was argued to the jury in the government’s closing argument.21 The U.S. Attorney called the jury’s attention to this crucial evidence as follows:
[W]ay back when in 1984 [Mr. Smith] had told the truth to Mr. Kleckner and to Mr. Carrollf, his attorneys,] and it had been conveyed to the FBI one Saturday *1515morning in a US. Attorney’s Office and Ladies and Gentlemen that truth is frozen at that point in time.
Smith and Torquato are the window dressing, Ladies and Gentlemen, but you also know when they made their statement the first time, Government Exhibit 119, Mr. Smith, and his attorney testified he said this as early as October, his offer of proof....
Jt.App. at 1354, 1400 (emphases added). At this point in his summation, United States Attorney West began to read to the jury, word-for-word, from Smith’s prior statement, including the allegation that “Robert Asher was our princip[al] aid[e] in getting Dwyer to act.” Id. at 1401. When West concluded reading from the statement, he again told the jury that, “Ladies and Gentlemen, that is caught in time just like those exhibits_” Id. at 1401-02 (emphasis added).
In these circumstances, I have no confidence at all, let alone the required “sure conviction,” that the erroneous admission of evidence did not prejudice Asher’s rights. Smith’s hearsay statement is exactly the kind of evidence — a damning piece of paper, available in the jury room throughout the period of deliberation — that the jury may have seized upon as a decisive factor in convicting Asher on the various counts. In addition, the government reiterated and emphasized this inadmissible evidence as a central theme of its closing argument. Although Smith’s prior statement concerning Asher was brief, it became a cornerstone of the government’s case against him. With the cornerstone removed, Asher’s convictions cannot stand.22
III. CONCLUSION
For the foregoing reasons, I believe that the government has failed — by a margin that is not even close — to bear its burden of demonstrating that the evidentiary error at appellant’s trial was harmless. Accordingly, I vote to vacate his conspiracy conviction, his mail fraud convictions, his ITAR convictions, his perjury conviction and the sentences and fines imposed on all counts, solely on the ground that prejudicial hearsay evidence was illegally admitted into evidence against him.23 I respectfully dissent from those portions of the majority’s opinion that are inconsistent with this approach.
. Similarly, I cannot reconcile the holding in this case with the seminal opinion on harmless error of this Court in Holland v. Attorney General of New Jersey, 777 F.2d 150 (3d Cir.1985). Undoubtedly, my colleagues have given this record their most careful and thoughtful analysis. However, as the panel of our Court so wisely reminded us in Holland, "the review of any criminal trial to determine if there was harmless error inevitably entails a subjective judgment.” Id. at 159. Compare United States v. Scarfo, 685 F.2d 842, 846-47 (3d Cir.1982) (Sloviter, J.) with id. at 849-51 (Gibbons, J. dissenting). In this case, my subjective judgment is remarkably different from the majority's. Perhaps that result emanates from our individual readings of the record, but I feel compelled to express my view in light of the admonishment in Holland that "we cannot shirk the responsibility placed upon us when we are convinced that conceded error cannot conclusively be regarded as harmless under any formulation of the harmless error doctrine. This is one such case.” 777 F.2d at 159. In my view, just as in Boyce and Holland, this also is a case in which the conceded error can not be viewed as harmless.
. Since I write on the evidentiary issue only, it is not necessary for me to comment on whether the majority has properly construed McNally v. United States, — U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987).
. On cross-examination, Smith indicated that his calls to Asher were largely unproductive:
Q. Now, sir, you had testified on direct ... that you had had several contacts with Mr. Asher after this meeting by telephone and whatnot, and I believe you testified ... that you weren’t going to Mr. Asher for help, but that you wanted him to see if he could get Mr. Dwyer to sit down and negotiate with you, is that correct, sir?
A. Help in getting him to sit down and negotiate. I didn’t want him to go in there and negotiate for us. I wanted him to help us to get Mr. Dwyer to come in and negotiate with us.
Q. You also I believe testified on direct that you felt that Mr. Asher became irritated with you, and that you were becoming sort of a pest to him on this, is that correct?
A. Yeah, I was a pest. I pestered him. I don’t know if I was a pest. I pestered him.
Q. What caused you to reach that judgment!)] that Mr. Asher thought you were becoming a pest and whatnot?
A. Well, a couple of times it took me awhile to get to him.
Q. ... In all of these contacts where you're pestering him, asking him to see if he can get you a meeting so you can negotiate with Mr. Dwyer, he never even mentions this campaign contribution?
A. Never even, he just didn't.
Q. Never did after that one meeting?
A. No.
Joint Appendix ("Jt. App.”) at 1125-27.
. Smith’s earlier written statement was not admissible against him at his own trial because it was an admission made in the process of plea bargaining with the government. Fed.R.Crim. P. 11(e)(6)(D).
. The trial was, of course, actually a joint trial of Asher and Dwyer. Asher’s pretrial motion to sever his case from Dwyer’s was denied by the district court.
.Asher disputed the admissibility of Smith's prior statement in a motion in limine, in objections at trial and in a post-trial motion. The specific remedy he urged upon the district court was redaction of the fourth paragraph of Smith's statement.
. The district court, in the course of admitting this evidence over Asher’s objection, gave the United States Attorney a warning: “All right. Well, I’m going to overrule the objection. You may have to retry this case, Mr. West, if you want to put [Smith’s statement] in. You are entitled to do it.” Jt.App. at 1195. Although the majority concludes otherwise, I view this warning as sobering and, indeed, quite prescient.
. The district court, in denying Asher’s acquittal/new trial motion, decided that his attorney's questioning implied that Smith had fabricated his testimony. Although the district court’s factual finding to this effect was clearly erroneous, the Court agrees with the district court’s implicit legal conclusion (z.e., that Asher’s cross-examination was the proper focus of the factual inquiry).
. For instance, Rule 801(d)(2), which like Rule 801(d)(1) is an exception to the general rule that hearsay evidence is inadmissible to show the truth of the matter asserted, is triggered when the admission of a party-opponent "is offered against a party_" Fed.R.Evid. 801(d)(2) (emphasis added).
. In Provenzano, for example, we noted that "[sjome evidence of [the witness’s] deal with the federal government was introduced in cross-examination, by Provenzano's lawyer, who raised the issue of [the witness’s] bias or motive_’’ 620 F.2d at 1001 n. 20 (emphasis added); accord United States v. Snead, 447 F.Supp. 1321, 1326 (E.D.Pa.) (a "prior statement ... offered to rebut the charge of recent fabrication ... [is] exactly the type of evidence contemplated by Federal Rule of Evidence 801(d)(1)(B)”) (emphasis added), aff’d without published opinion, 577 F.2d 730 (3d Cir.) (table), cert. denied, 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775, 439 U.S. 851, 99 S.Ct. 156, 58 L.Ed.2d 154 (1978), and 441 U.S. 909, 99 S.Ct. 2003, 60 L.Ed.2d 379 (1979).
. Of course, this will not always, or even often, be the case. In this prosecution, for example, where Asher and Dwyer were tried together, Smith’s testimony for the government supported reasonable inferences that were harmful to Dwyer and exculpatory to Asher. Thus, to the extent that Dwyer succeeded in impeaching the credibility of government witness Smith, the jury might have concluded that Asher's conduct was more culpable than Smith’s testimony indicated on its face.
. The district court eloquently explained the problem with this "maneuver” when it sustained this same objection in an unrelated situation at trial where, ironically, the roles of the two defense attorneys were reversed.
[T]he [witness’s] reference ... did fall within the ambit of what was opened up on cross by Mr. Hundley, but I am concerned about having it held in any way attributable to Mr. Killion’s examination, and it worries me that his client is going to get tagged with something that came up not of [Killion’s] volition but rather from Mr. Hundley’s volition and so for that reason I’m going to sustain Mr. Kil-lion's objection.
Jt.App. at 1279.
. Taken to its logical extreme, the government’s "opening statement" argument would destroy the hearsay rules as we know them, for, in its view, whenever a defense attorney’s opening statement contained any remark that could be construed as attacking the credibility of an anticipated adverse witness, the government could begin building its case by introducing as substantive evidence that witness’s prior, out-of-court statements. Rule 801(d)(1)(B), by contrast, requires events to proceed in a more logical manner: testimony by a witness, impeachment of that testimony by opposing counsel, and then the introduction of the witness's prior statement to rebut the inference of recent fabrication.
. The government claims that United States v. Feldman, 711 F.2d 758 (7th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 317 (1983), indicates that "statements in an opening address" are clearly adequate to invoke the hearsay exception of Rule 801(d)(1)(B). Brief of Appellee at 45. Feldman was a case where the attorney for the only defendant, ”[d]uring [his] opening statement, ... elaborated at considerable length on the 'deal' [a witness] had made with the prosecutors.” 711 F.2d at 766. In addition, ”[d]uring cross-examination, the defense [attorney] questioned [the witness] about the role the government would play in the event that any state licensing agency should bring a disciplinary action against him.” Id. At this point in the trial, the district court held a lengthy side bar conference, where it
repeatedly asked the defense if it intended to argue that the [witness's] plea agreement was a motivation to fabricate. The court pursued the issue [at side bar] for ten pages of trial transcript.... Finally, after a recess, defense counsel stated that he intended to talk about the plea agreement during closing argument, but that he did not intend to argue that it was a motivation for recent fabrication. However, since the defense could offer no other inference that it intended to draw from the plea agreement, the [district] court permitted the introduction of the [witness’s] prior consistent statement.
Id. It was on this basis that the Court of Appeals for the Seventh Circuit ”agree[d] with the district court that [defendant] Feldman’s use of the plea agreement was to impliedly charge that it motivated [the witness] to fabricate his trial testimony.” Id. The fact that Feldman's attorney had first referred to the witness's plea agreement in his opening statement was a fortuity that played no role in the appellate court’s Rule 801(d)(1)(B) analysis.
. In the context of an unrelated argument that no member of this panel finds it necessary to reach, the government's brief mentions its right to impeach its own witness. See Fed.R.Evid. 607. Since there is no basis for construing anything in West’s direct examination of Smith as an attempt to impeach the witness, however, Hundley's replication of parts of West’s questioning does not raise an inference, via Rule 607, that Hundley was accusing Smith of fabricating his testimony.
. The government’s remaining arguments, made in passing, lack merit and deserve little comment. The claim that Hundley’s cross-examination of Torquato, whose credibility Hund-ley was attacking, showed that Hundley’s methods of implying witness fabrication were more subtle throughout this trial than were Killion’s, is interesting, but it is unsupported by specific record references and is subsumed, I believe, by the other claims that I have already addressed. The fact that Hundley submitted to the district court proposed points for charge that, when construed very broadly, can be viewed as touching upon parts of Smith’s story or his credibility as a witness, is irrelevant; proposed points for charge are obviously not part of the substantive evidence before a jury, which is the focus of provisions such as Rule 801(d)(1)(B). The claim that it would not have been an abuse of discretion for the district court to admit into evidence the full story of the threat to indict Judy Smith, including how that threat related to William Smith’s offer to cooperate with the government, is also irrelevant; the contents of Smith's proffered statement are not relevant to this “fuli story," and, in any event, Smith could not have read this prior statement into evidence against Asher unless and until Smith's credibility had been attacked by Asher’s attorney.
The government's final claim deserves special mention. That Hundley "used the witness Smith to impeach Torquato’s testimony concerning whether or not the dollar figure of $500,000 had been mentioned at the first Asher meeting and $300,000 at the 1985 Asher meeting,” Brief of Appellee at 39, exemplifies the exact point of Asher’s appeal. Much of Smith’s testimony was, at least in comparison to Tor-quato's testimony, favorable to Asher’s claim to have committed no crime. That is the reason why Hundley "used the witness Smith to impeach,” as opposed to impeaching him.
. Because Asher’s Rule 801(d)(1)(B) argument succeeds at the threshold, there is no need to address his independent contentions (1) that Smith’s prior statement was not consistent with his trial testimony, and (2) that, because Smith’s prior statement was not made before his motive to fabricate arose, it was inadmissible to rebut a charge of recent fabrication. See De Peri, 778 F.2d at 977 (while ”[t]he timing of consistent prior statements divides the courts of appeals!,] ... [w]e find it unnecessary to enter this debate here”); see generally Note, Prior Consistent Statements: Temporal Admissibility Standard Under Federal Rule of Evidence 801(d)(1)(B), 55 Fordham L.Rev. 759, 759 (1987) (“A controversy has arisen among the federal courts of appeals as to whether admissibility of ... a prior consistent statement is contingent on its being made prior to the alleged fabrication or improper motive. The majority of courts that have addressed the issue find this temporal requirement implicit in FRE 801(d)(1)(B), in order to ensure the statement’s relevance;” Note defends this majority approach) (footnotes omitted); see, e.g., United States v. Vest, 842 F.2d 1319, 1329-30 (1st Cir.1988) (Campbell, C.J., joined by Garth and Bownes, JJ.); but cf. United States v. Obayagbona, 627 F.Supp. 329, 337 (E.D.N.Y.1985) (Weinstein, C.J.) (“Generally, it would seem useful to drop this ... element_ There is no warrant for it in the language of the rule and it unnecessarily complicates the court's problems in administering trials. Rules 401 to 403 provide a better and more flexible guarantee of fairness.”); Note, Prior Consistent Statements and Motives to Lie, 62 N.Y.U.L.Rev. 787, 788 (1987) ("because any admitted prior consistent statement is subject to cross-examination about motive in front of the trier of fact, evaluation of a motive to fabricate a statement is unnecessary”).
. The majority, viewing Asher’s trial as a finished product rather than as an unfolding presentation of evidence, chooses not to mention which evidence was cumulative from the jury’s point of view.
. See generally United States v. Bernal, 814 F.2d 175, 185 (5th Cir.1987); United States v. Taylor, 508 F.2d 761, 765 (5th Cir.1975); Savoy v. Savoy, 220 F.2d 364, 367 (D.C.Cir.1954); cf. generally Pennsylvania v. Ritchie, 480 U.S. 39, 51-52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987) (plurality opinion) (evidence "that a witness is biased, or that testimony is exaggerated or unbelievable ... can make the difference between conviction and acquittal").
. See United States v. Pendas-Martinez, 845 F.2d 938, 941 (11th Cir.1988) ("It is an abuse of discretion ... to admit into evidence and send to the jury room government agent case summaries which constitute a written summary of the government’s theory of the case.”); United States v. Brown, 451 F.2d 1231, 1234 (5th Cir.1971); United States v. Ware, 247 F.2d 698, 701 (7th Cir.1957) ("The error ... was compounded by the fact that the jury was permitted, over objection by the defendant, to have the exhibits in the jury room during its deliberations. The jury thus had before it a neat condensation of the government’s whole case against the defendant. The government’s witnesses in effect accompanied the jury into the jury room. In these circumstances we cannot say that the error did not influence the jury, to the defendant’s detriment, or had but a very slight effect."); EEOC v. Colgate-Palmolive Co., No. 81 Civ. 8145, slip op. at — (S.D.N.Y. Feb. 3, 1986) [available on WESTLAW, 1986 WL 1810],
.See generally Rainey v. Beech Aircraft Corp., 784 F.2d 1523, 1528 (11th Cir.) (“defendants were able to capitalize on the improper admission of [opinion evidence] by highlighting the opinions to the jury during closing argument”), vacated, 791 F.2d 833 (11th Cir.1986), reinstated on rehearing en banc, 827 F.2d 1498 (11th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1073, 99 L.Ed.2d 233 (1988); United States v. Reynolds, 715 F.2d 99, 105 (3d Cir.1983) ("In this case there is much more than the mere risk of prejudice_ There is actual prejudice. Here, the powerfully incriminating hearsay statement was admitted into evidence ... and offered again by the government in its closing argument to the jury as circumstantial evi-dence_”); United States v. Palumbo, 639 F.2d 123, 128 (3d Cir.) (error was not harmless where, inter alia, “hearsay testimony ... was impermissibly commented on by the prosecutor during cross examination and in his closing”), cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981); cf. generally United States v. Zarintash, 736 F.2d 66, 72 (3d Cir.1984) (where “the Government in its summation did not mention, let alone stress," the evidence that was admitted in error, its admission was harmless).
. See United States v. Versaint, 849 F.2d 827, 831-832 (3d Cir.1988) (erroneous exclusion of police report not harmless); Boyce, at 831 ("Far from being harmless error, the introduction of McMahon’s statement was the linchpin in the evidence forming a central and cohesive bridge between the circumstantial evidence and the identify of Boyce as a participant in the burglary.”); United States v. Pearson, 746 F.2d 787, 795-96 (11th Cir.1984) (“[T]here was no testimony that [defendant] had access to or had ever occupied the upstairs area where most of the guns [that the court admitted into evidence against him] were found. In fact, the evidence was to the contrary. Furthermore, the court gave no instruction limiting the extrinsic evidence against [defendant] to the two guns found in his bedroom. While we can find no abuse of discretion in admitting the firearms against [his codefendant], their admission against [defendant] was irrelevant and prejudicial.”).
Because, in my view, Asher is legally entitled to complete relief on the evidentiary aspect of his appeal, there is no need to address Asher’s remaining, independent, claims (1) that the jury charge improperly amended the indictment, and (2) that each of his convictions was based upon a scheme to defraud the public of its "intangible” right to a public official’s loyal, faithful and honest services, which scheme, since McNally, is not encompassed by the federal mail fraud statute.
. Of course, even if a majority of the panel was persuaded to take this approach, the government would remain free to reprosecute appellant on any counts on which he may be or remains lawfully indicted.