(concurring) .
While I agree with the majority opinion that the judgment of conviction must be reversed for the reasons stated in the opinion, I do not share the views expressed regarding the admission in evidence of the testimony of the member of the Alaskan Territorial Police, who was permitted to testify to much of the substance of the matters contained in the signed confession made by the appellant at Seattle, which confession the trial court excluded because taken in violation of the provisions of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Prior to the admission of this testimony, appellant objected to its receipt in evidence and requested the district court to conduct a hearing out of the presence of .the jury in order to determine preliminarily whether such officer’s testimony was the fruit of the violation of the rights of appellant as set forth in Rule 5(a). The district court overruled the objection and denied the request. In my opinion, many of the facts set forth in the majority opinion tend to support my view that the district court should have acceded to appellant’s request. It is conceivable that after such a hearing, at which the appellant would have probably testified, the trial court might have overruled appellant’s objection and permitted such testimony to go before the jury, on the ground that such testimony was from an independent source and was not derivative of the violation of the provisions of Rule 5(a). The ruling of the court, however, placed the appellant in a position of jeopardy. In order to properly present this point to the jury the appellant would have been compelled to present testimony of the circumstances surrounding his arrest at Seattle and of the written confession made by him. Otherwise, the appellant would have been in no position to show that the admissions made at Anchorage were the fruits of the acts of the officers at Seattle, which the trial court found to be unlawful and in violation of Rule 5 (a).
On retrial of this action I feel that the district court should carefully consider the holding of a hearing out of the presence of the jury should this testimony be again offered before determining its admissibility.