(concurring specially in affirmance of the judgment) .
I concur in the affirmance of appellant’s conviction. I also concur in the court’s opinion rejecting appellant’s contention that his waiver of his constitutional right to assistance of counsel was *13not given intelligently or voluntarily. But my reasons for rejecting appellant’s argument with respect to the McNabb-Mallory rule are different from those relied upon by the court. The point was not raised below and I am unwilling to decide it upon the present record which was not prepared for that purpose. We have discretion, of course, to remand the case for further hearings on the question. But it does not appear from anything presented to us that appellant’s claim is of sufficient substance to warrant the exercise of such discretion.
Accordingly, since I think the McNabb-Mallory issue is not available to appellant, I do not consider whether “evidence obtained by state officers, even during a delay which would have violated Buie 5(a) if perpetrated by federal agents, is not admissible in federal courts under the McNabb-Mallory rule.” See Hanna v. United States, 1958, 104 U.S.App.D.C. 205, 260 F.2d 723.