(dissenting).
Judge Edgerton’s opinion from which I dissent demonstrates how easily a simple matter can be made to seem complicated. As in some other cases of late, a synthetic situation is presented where a previously unnoticeable molehill is caused to resemble a constitutional Mt. Everest. Little more is required than the facts to cut it down to size. To that end we may turn appropriately to the transcript of the hearings on Short’s pretrial motions.
Deputy Sheriff Kelly and another deputy in Wake County, North Carolina, had been looking for Short since the issuance of a North Carolina warrant on March 1, 1961. Wanted in Zebulon on a charge of assault with a dangerous weapon, Short had been “running” — a fugitive. The deputy sheriffs learned that by September in 1962, Short had been coming to his mother’s house in Raleigh. Specifically, they received a “tip” on September 13, 1962 that he was there, and they went to the mother’s house to arrest him.
Short’s sister met the deputies near the front door. Asking them for a search *887warrant and otherwise setting up a clamor concerning the presence of the officers, she managed to warn her brother who ran out the back door. Two local police remained outside. Short was climbing a fence in the rear of the house when the Raleigh police officers caught him. The deputies with Short in their cruiser by radio notified the Zebulon, North Carolina, authorities of the arrest. The latter then for the first time informed Kelly that Short was wanted in Washington. A check of teletype files in various headquarters finally revealed the name of Lieutenant O’Bryant of the Metropolitan Police as the author of an August 10, 1962 teletype request for assistance in locating Short. Meanwhile Short had been booked on the Zebulon charge and had been committed to jail in default of bail.
Deputy Kelly the next day telephoned to Lieutenant O’Bryant and learned that Short was still wanted here on a charge of armed robbery. O’Bryant asked the deputy to find out whether or not Short was willing to be returned to the District.
We may turn next to what had happened in Washington a month or so earlier. Short was then believed to be involved in at least two cases in the District of Columbia. On July 28, 1962, a man who turned out to be the appellant Short, armed with a sawed-off shotgun and accompanied by Johnson, David Jones and Arthur Jones had held up a liquor store. On August 3, 1962, Short, then armed with a revolver and accompanied by Johnson and David Jones, had attempted to hold up a grocery store. This time Short’s fingerprints had been recovered from grocery cans which he had handled. Lieutenant O’Bryant thereafter, on August 10, 1962 to be exact, had obtained from the Municipal Court a warrant for the arrest of Short. Such a warrant “may be executed in any part of the District by any member of the police force * * (Emphasis added.) D.C.Code § 4-138 (1961). That warrant, of course, possessed no force and effect in Raleigh, North Carolina. Still, if Short were willing to return here with O’Bryant, that Municipal Court document would offer at least some color of basis upon which the North Carolina state authorities might release their prisoner to the custody of O’Bryant.
So it was, with the more serious charges pending here, that O’Bryant asked the North Carolina officers to ascertain whether or not removal proceedings could be waived. Short was a North Carolina prisoner, so that consent of the state authorities was a prerequisite. If they were willing to yield the prisoner to the District of Columbia, the next step involved Short’s consent. Unless he were to agree to removal, O’Bryant would have been required to swear out a complaint, Rule 3, and to serve a warrant for the arrest of Short, Rule 4, to be executed “by a marshal or by some other officer authorized by law,” Rule 4(c). Then would follow the procedure prescribed in Rule 40(b).1 Resort to such procedures became unnecessary, however, for Short on September 14,1962, executed a waiver which read as follows:
“State of North Carolina County of Wake
14 day of September, 1962.
I, Willie Lee Short, Jr., hereby freely and voluntarily agree to accompany Det. O’Briant [sic] or other officer as a prisoner, from the County of Wake and State of North Carolina, to Washington, D. C. for the purpose of answering to the charge of Armed Robbery there pending against me.
Furthermore, I hereby waive all formality, and am willing to return to Washington, D. C. with the said Officer without the Governor’s requisition, or the other papers legally necessary in such cases, and exonerate all concerned, including Robert J. Pleasants, Sheriff from any blame, *888compulsion or interference in this connection.
I certify that the above was signed in my presence, and that this agreement has been made without compulsion of the authorities here, and upon the free desire of myself, Willie Lee Short, Jr.
Signed: Willie Lee Short, Jr.
Witnesses: L. W. Kelly, D.S. J. T. Turner, D.S.”
Informed by telephone that Short had signed that waiver, O’Bryant on September 15, 1962 flew from Washington to Raleigh.
Some of my colleagues have decided that when the jailers in North Carolina allowed O’Bryant to see Short, the latter “became” the prisoner of the District of Columbia officer. They say that from the time O’Bryant made a notation of “arrested” on the Municipal Court warrant of August 10, a period of unnecessary delay began to run. Thus, they conclude, the subsequent confession was invalidly extracted and could not lawfully be used against Short.
In my view the lieutenant might just as well have writen “arrested” on a laundry check. The local magistrate’s warrant had no validity whatever in Raleigh. It could not serve to authorize O’Bryant to take Short before the nearest federal judge or commissioner or anywhere else. It could not make Short the “prisoner” of O’Bryant. My colleagues observe of the lieutenant, “He well knew that Short was to be held. He had no authority to release him.” Of course he did not. Short remained in the jail subject to its discipline until the following day when the state authorities released Short for his return to Washington. Under such circumstances Rule 40 had no application to this case for the simple reason that Short had agreed to come back here with O’Bryant. On that account Rule 40 can not predicate exclusion of the confession.
O’Bryant advised Short of his rights. A deputy sheriff testified to his presence when O’Bryant interviewed Short, that Short was advised of his rights, that any statement he made might be used for or against him, and that Short answered voluntarily, without coercion and without any promises or inducements. Indeed, the record shows, O’Bryant also told Short “he didn’t have to tell me anything if he didn’t want to tell me, that I wasn’t even going to request that he tell me something if he did not want to tell me.” Within two or three minutes, Short began answering questions about four different crimes.
O’Bryant arranged to have Short’s family come to the jail. He gave each of them a copy of Short’s statements. He read the statements to the family. He asked if there was any word that he was reading that was different from the words on their copies. He asked Short if the confession were true, and he said it was. Short’s wife, his sister and the latter’s fiance, McCloud, heard Short acknowledge the truth of the statements. All testified to the same effect at the hearing. Short, however, denied that O’Bryant had read the confession to him in their presence.
Such was the record, but in much greater detail, upon which the experienced trial judge based his rulings. He said:
“I do not believe Short’s testimony. He made it clear beyond a shadow of a doubt, in my mind, that he was simply not telling the truth about it. I didn’t believe anything that he said. He even contradicted his own wife. He contradicted his own sister. And, in some measure, he contradicted McCloud. And then to say, when asked on cross-examination about his testimony before the grand jury, that he gave answers which are exactly the opposite of the answers which the grand jury minutes, so much of it as was read to him, showed he did — he said ‘no’ when the record shows that he said ‘yes,’ or he said ‘yes’ when the record shows that he said ‘no’ — I just don’t believe it.”
*889The specious contentions before the District Court were demolished by the facts as outlined and by the conclusions reached by the judge. The latter obviously perceived before him a wary sophisticate who knew precisely what he was doing as he advanced his various claims. Thus the judge correctly ruled that the motion to suppress the confession should be denied.
This was not a situation where there “was a working arrangement between the federal officers and the sheriff,” as in Anderson v. United States.2 On the contrary, the state case had no connection whatever with the robbery charges in the District of Columbia. O’Bryant simply confronted Short with the evidence against him and the confession followed. As did the Supreme Court in Coppola v. United States,3 we should affirm.4
It is obvious from the transcript that O’Bryant in Raleigh and the prosecutor before the grand jury were particularly interested in what help Short might give in clearing up certain crimes not here considered. Perhaps his testimony predicated the indictment of others. Perhaps as to such other offenses, Short hoped to exculpate himself; indeed for all we are shown, he may have done so.5 When Short appeared before the grand jury, the Assistant United States Attorney said:
“Q. Mr. Short, I want you to know that you are before the Grand Jury and that we are going to ask you some questions. I want you to know you don’t have to say anything. If you do tell us anything your statement is being taken down and can be used against you at any future trial arising out of any matter that we talk about here, or any other matters. Do you understand that ?
“A. Yes.
“Q. Knowing that you still want to come in here and testify ?
“A. Yes.”
Short testified at the District Court hearing that he had wanted to go before the grand jury.6 “Because I know I hadn’t did anything.” The next questions and answers disclosed in the transcript read:
“Q. Well, now, did you tell them you had done anything when you testified ?
“A. No, I didn’t.
“Q. You denied everything when you testified ?
“A. That’s right.”
As noted above, the trial judge refused to believe Short. He perceived that Short had lied when he so testified, in the foregoing respects as in every other contested instance. But Short’s testimony provides the sort of record upon which my colleagues rest. So they are able to say “We think taking him before the grand jury without his consent and asking him anything violates his privilege.” (Emphasis added.) The transcript is exactly the opposite. Elsewhere they add: “Moreover, in our view Short gave no consent * * * to be taken before the grand jury on October 2. His actual state of mind is irrelevant, since a state of mind that is not expressed or implied by words or conduct has no legal effect.” Of such stuff are dreams made. My colleagues even state — as they are bound to do — that Lieutenant *890O’Bryant had “asked Short whether he wanted to testify before the grand jury and Short said he did. Short denied this. We accept O’Bryant’s testimony. But, if as Short claimed, he did not know what a grand jury was, he may well have thought O’Bryant meant a trial jury.” (Emphasis added.) Not a shred of record evidence entitled to credence supports any such conclusion; the position taken by my colleagues has no more foundation in this case than their willingness to write the record as they want it to read. Only thus can they predicate their desire to reach the conclusion that Short’s appearance before the grand jury was “compelled.” If the findings of a District Judge who has heard all the witnesses and observed their demeanor are to have no greater significance than my colleagues would accord them here, preliminary hearings become a mere exercise in futility.
The pronouncements of some of the majority upon so grand a scale sound in sheer vacuity. In any event, after everything has been said, the plain fact is that no testimony given by Short before the grand jury was offered at trial. The judge actually recessed the hearing early so that defense counsel might examine the grand jury minutes and be prepared to indicate therefrom any basis of possible prejudice. No such proffer followed. The judge had made it clear that he was not interested in the mass of the testimony as to other crimes. He wanted only such material as had a bearing on this case.
The indictment was valid even without Short’s confession and even if based only on O’Bryant’s testimony. The trial judge correctly followed what the Supreme Court had said in Costello v. United States7:
“If indictments were to be held open to challenge on the ground that there was * * * incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency * * * of the evidence before the grand jury. This is not required by the Fifth Amendment.”
The trial judge properly ruled that the motion to dismiss the indictment must be denied, and we should affirm his ruling.
When one realizes how many thousands of criminal cases have reached the federal courts and again, how many of those in turn have reached the Supreme Court, it seems strange that only now does the “right to counsel” take the turn my colleagues give it. Speaking of Short’s having said that he wanted to testify before the grand jury, my colleagues say, “In any case, willingness on September 16 is not willingness on October 2. There is nothing to show that anyone even thought on October 2 that Short was then willing to be taken to the grand jury and interrogated.” (Emphasis added.) The Assistant United States Attorney thought so; he even asked Short about it, supra. Short thought so; he told the grand jury he wanted to testify (text supra).
But in the meantime, Short had appeared before the committing magistrate on September 17, 1962. An attorney had then been appointed to represent him at the preliminary hearing. Notwithstanding, my colleagues say “Short’s Sixth Amendment right ‘to have the Assistance of Counsel for his defense’ was withheld.” Apparently they mean to imply that the right was “withheld” by the Government. At another point my colleagues say “By failing to inform counsel of the impending examination, the prosecution deprived Short of his as*891sistance at a crucial time and greatly to Short’s prejudice.” 8
So far as appears Short’s counsel may well have advised him that his best chance to secure ultimate consideration at the hands of the prosecution or the sentencing judge depended upon the degree of cooperation he might extend in connection with the other crimes then under investigation. Such advice is not unusual. Granting that my deduction is sheer speculation in view of the state of the record, it is at least as valid as the supposition voiced by my colleagues that it is “unlikely that Short would have repeated his former confessions there if he had been counseled.” I do not agree that an attorney would have told Short that his voluntary confession was “illegally obtained.” Following the law, at least before the present majority opinion, he would have said “The confession may be offered at trial. Your best bet is to cooperate — like Johnson.” 8a
Mr. Justice Brennan observed as late as this June,
“[T]oday the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States, 168 U.S. 532 [18 S.Ct. 183, 42 L.Ed. 568], the Court held that ‘In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person “shall be compelled in any criminal case to be a witness against himself.” ’ Id., 168 U.S. at 542, [18 S.Ct. 183].” (Emphasis added.) 9
Here, of course, it was clear that Short had not been compelled to incriminate himself. Let it be noted that my colleagues have not decided that Short’s confession was involuntary; rather, they have sought to resolve its admissibility on alleged noncompliance with Rule 40.
Be that as it may, we do not find my colleagues saying that Short’s Sixth Amendment right had been “withheld” because he had sought and had been denied an attorney. They seek to support their conclusion by a totally artificial reference to Escobedo v. Illinois.10 But let us see what the Court there said:
“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (Emphasis added.)
If the District Judges seek to understand the opinion of my colleagues in terms of Massiah v. United States11 cited by my colleagues, let me point to fundamental variances there from the situation here shown. In that case, Mas-siah had been indicted, had counsel and was at liberty on bail as the Government authorities well knew. Even so, acting in concert with a co-defendant who with*892out Massiah’s knowledge had agreed to become a witness for the Government, the authorities concocted a deliberate and surreptitious subterfuge. They planted in the co-defendant’s car broadcasting equipment to pick up Massiah’s conversation. Then with receiving equipment in a following car, they overheard whatever Massiah had to say when not aware that he was being victimized by the Government-conceived plot for his interrogation. He had not been put on notice that what he was saying was being recorded by federal agents.
Even Powell v. Alabama12 does not help my colleagues. They point to the sentence reading, “He requires the guiding hand of counsel at every step in the proceedings against him.” But in Powell, the prisoners had been arraigned without counsel immediately upon the return of the indictment. Six days thereafter the trials were commenced, and no counsel representing the defendants appeared when the case was called for trial. Thus, the Court was saying, during the most critical period of the proceedings “from the time of their arraignment until the beginning of trial, when investigation and preparation were vitally important, the defendants did not have the aid of counsel.”13 Those were the steps of the proceedings which the Court so obviously had in mind.
We have made it clear that if an accused be without counsel at a preliminary hearing, a plea of guilty made without warning or advice can not be used in evidence against him.14 My colleagues do not so much as mention our own well established rule or the case in which it is stated, Council v. Clemmer.15 There a unanimous court held specifically that there is no constitutional requirement that the accused be represented by counsel at a preliminary hearing where he pleads not guilty. But Short was so represented in this case. This court also pointed out in Clemmer, that Rule 44 of the Federal Rules of Criminal Procedure in providing for representation by counsel “at every stage” is intended to apply only to proceedings in court, and Short had counsel in all court proceedings.
It may respectfully be suggested that no Sixth Amendment right was “withheld” from Short, by anybody. Much less does it appear that the prosecution in any way had negated Short’s rights by “failing” to inform the counsel after the preliminary hearing that Short had wanted to appear before the grand jury, and thereafter had willingly appeared. Again the facts in this case speak loudly and clearly for Short said so himself. Perhaps at this point, my colleagues do not believe him!
In recapitulation, we find our majority colleagues unable to say that some automatic rule of exclusion must bar Short’s voluntary confession in North Carolina.
So a theory is fashioned to apply where state officers on a completely independent state charge arrest their wanted accused at a point more than 100 miles from Washington. If that state prisoner agrees to dispense with removal proceedings and to return to this District whence he is a fugitive, a Metropolitan Police officer who goes to get the man must not permit the accused voluntarily to confess his crime until after the officer swears out a complaint, has the man, arrested and then presented before a federal judge or commissioner. Failure so to *893comply with Eule 40(b) will bar the confession here, my colleagues say. Moreover, not only will Short’s conviction be reversed but those of all co-defendants receive like treatment.
Some of my colleagues would take a new tack in working up a “right to counsel” bar. They realized that the record could not belie Short’s expressed willingness to testify before the grand jury, and that the committing magistrate, the police and the Assistant United States Attorney had warned Short against self-incrimination. They knew, as our law requires, that Short had counsel at the preliminary hearing and again at trial. So they conclude that the indictment must be dismissed because the Government “prevented” Short from consulting some attorney. To achieve that result they had to reason that the attorney they had in mind was the one first appearing for Short!
In part to bolster such syntheses, some of my colleagues cite Lee v. United States.16 Let me note in part what was there said by Circuit Judge Hutcheson, dissenting.17 He spoke of the “personal views of the majority judges” and others who wish to change settled principles governing trial and error in a criminal case by “introducing new and strange doctrines.” In their view, as he put it,
“a convicted defendant is regarded as a personal ward of the appellate courts and instead of being compelled, as statute and rules provide, to show for reversal that his trial was attended with prejudicial error, he is required only to invoke and enlist in his behalf the supposed supervisory powers and personal interest of the Court of Appeals, or enough of its judges to carry the day for him.” (Italics in original.)
The facts in this case after all are the best answer to my majority colleagues— as to points where they are a majority. I agree with Judge Prettyman and join his opinion where my doing so will sustain his position. At all events, I would affirm.
I am authorized to state that Senior Circuit Judge Prettyman and Circuit Judges Wilbur K. Miller and Bastían join in this dissent.
BUEGEE, Circuit Judge:I agree in large part with what Judge Prettyman has expressed. Compare Spriggs v. United States, 118 U.S. App.D.C. 248, p. 252, 335 F.2d 283, p. 287 n. 1 (dissenting opinion). However, I desire to make several points separately because of seeming internal conflicts in what is the operative holding of the majority under Part VI. I do not read Judge Edgerton’s opinion as holding that an indictment cannot rest on a confession simply because that confession would be inadmissible at trial under Eule 5(a) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). As I read it, the remand should be construed as meaning that the District Court is now to determine what evidence the Grand Jury had other than Short’s own testimony. In sum, the written statements of Short could afford an adequate basis for an indictment without reference to their admissibility at trial; the majority has not decided otherwise. It is Short’s uncounseled testimony to the Grand Jury, rather than his written confession, to which the majority objects. However, I agree with Judge Prettyman that a remand to accomplish the stated objectives is pointless and that any basis for such remand was waived by appellant Short’s counsel in the District Court. (See discussion, Point VI, opinion of Judge Prettyman.)
If we are prepared to say that an un-counseled accused is not to be taken before a Grand Jury without first being afforded court appointed counsel (if indigent), we ought to declare this as a requirement; the supervisory powers of this court and the District Court over the administration of justice are broad *894enough to do so. Moreover, our objective should be fundamental fairness to an accused rather than added negative techniques which frustrate the administration of justice and produce multiple retrials until at last the court dismisses the indictment for denial of a speedy trial. See, e. g., Marshall v. United States, 119 U.S.App.D.C. -, 337 F.2d 119.
. The foregoing references are to Federal Rules of Criminal Procedure. Because of the waiver, 18 U.S.C. § 3041 (1958) is not here involved (and see Reviser’s Note),
. 318 U.S. 350, 356, 63 S.Ct. 599, 602, 87 L.Ed. 829 (1943).
. 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961); and see Papworth v. United States, 256 F.2d 125, 127 (5 Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed. 2d 88 (1958).
. Cf. Morgan v. United States, 111 U.S.App.D.C. 127, 294 F.2d 911 (1961).
. Johnson, who had participated with Short and others herein named in the July 28 robbery and the August 3, 1962 robbery attempt, entered a pretrial plea of guilty and testified for the Government. One indictment naming Johnson was then dismissed.
. He certainly had received Rule 5 advice from the committing magistrate, and, no doubt, similar caution from the attorney who appeared with him at the preliminary hearing.
. 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); and see Lawn v. United States, 355 U.S. 339, 349, 350, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Holt v. United States, 218 U.S. 245, 247, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).
. Italics mine.
. See note 5, supra, as to the disposition of Johnson.
. Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, p. 1493, 12 L.Ed.2d 653 (1964).
. 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765 (1964).
. 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
. 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932).
. Price v. Johnston, 144 F.2d 260, 262 (9 Cir.), cert. denied, 323 U.S. 789, 65 S.Ct. 312, 89 L.Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S.Ct. 558, 89 L.Ed. 650 (1945); we have so interpreted the Powell dictum. Edwards v. United States, 78 U.S.App.D.C. 226, 228, 139 F.2d 365, 367 (1943), cert. denied, 321 U.S. 769, 64 S.Ct. 523, 88 L.Ed. 1064 (1944).
. Wood v. United States, 75 U.S.App.D.C. 274, 287, 128 F.2d 265, 278, 141 A.L.R. 1318 (1942); there Mr. Justice Rutledge reviewed many facets of the counsel problem in a elassie opinion which underlies in substantial part the language now appearing in Fed.R.Crim.P. 5.
. 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949).
. 322 F.2d 770, 777 and 778 (5 Cir. 1963).
. Id. at 779.