concurring:

At appellant’s trial, the Government used a transcript of the tape made by Agent Kallis during his April 25,1980 session with the defendant. Much of the tape was so unclear as to be unintelligible. The transcript represented important information for the defense concerning the Government’s version of the conversation between Gee and Agent Kallis; its significance was independent of the significance of the tape itself. Under these circumstances, if the transcript was in existence at the time that the defendant made his discovery request, production was required, because the transcript was both a “relevant written or recorded statement ] made by the defendant, or cop[y] thereof,” Fed.R.Crim.P. 16(a)(1)(A), and a “document[ ] . .. material to the preparation of [Gee’s] defense,” Fed.R.Crim.P. 16(a)(1)(C), “within the possession, custody or control of the government.”

Counsel for the appellant listened to the tape in question together with Government prosecutors on July 31, 1980. At that time, the prosecutors made the representation that no transcript of the tape existed. Counsel then specifically requested production of a transcript of the tape, on August 7, 1980. In response to this discovery motion, the Government on August 22 stated that “[p]laintiff has provided all the transcripts there are. No further transcripts exist at this time.” The trial court ruled that the transcript was not in existence when Gee made his final discovery request, and accordingly no Rule 16 violation had occurred. 1 The Government, however, conceded at the hearing on the issue that the tape was transcribed on or before the date indicated on an evidence tag attached to the *1171 tape. The tape and tag are included in the record on appeal, and the tag plainly indicates that the transcript was prepared on “7-14-80,” well before the conference and before Gee’s discovery motion. For this reason, I conclude that the district court’s finding that the transcript was not in existence was clearly erroneous, and that the Government committed a serious Rule 16 violation.

I concur, however, because the appellant has demonstrated no prejudice to his case flowing from the wrongful failure to produce the transcript.

. The trial court following a hearing made no explicit finding as to when the tape was transcribed, but concluded that the date was sometime after July 31, 1980. See Maj. op. at 1167-1168 n. 4.