(concurring in the result):
I concur in the result reached by six of my brothers. The court’s opinion correctly states that this appeal queries whether the circumstances under which the defendant made his inculpatory statement required that his interrogators advise him of his right to keep silent, his right to counsel, and that what he said might be used in evidence against him. I concur with the court, and with my brother Anderson, that here, despite the officers’ failure to so advise, appellant’s inculpatory statements were properly admitted against him at his trial and the conviction should be affirmed for the reasons so ably stated by my brother Anderson in his dissenting opinion in United States v. Robinson, 354 F.2d 116 (2 Cir. 1965).
Nevertheless, I should also make a separate statement in order to make it quite clear that I disassociate myself from much of the language that purports to support the court’s opinion. Although I agree that the facts of this case do not *129demonstrate the existence of compulsion, and therefore there was no violation of the Fifth Amendment’s guarantee against self-incrimination, I cannot subscribe to that part of the court’s opinion that drastically' curtails the protection provided by the assistance of counsel clause in the Sixth Amendment.
On the ground that this is not “a realistic doctrine for most cases,” 354 F.2d 123, the court flatly refuses to inquire whether at the time the inculpatory statements were made in answer to agent McNeil’s questions the process of questioning this defendant had passed from the “investigatory” to the “accusatory” stage. Indeed, the court states that such an inquiry “would serve no useful purpose.” Though the use of these particular adjectives by the U. S. Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964) leaves unresolved problems, some such test is presently essential to the hard process of deciding when the Sixth Amendment rights explicated by Escobedo first come into play. See, e. g., United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (3 Cir. 1965). I find it surprising that we toss off inquiry into this matter when the Supreme Court has mandated inquiry therein.
The court’s position is that although Escobedo “may have extended the Sixth Amendment’s protection * * * that decision cannot be divorced from its particular facts.” 354 F.2d 124. And it is obvious that the majority, despite the significant language in Escobedo quoted by our dissenting brother, Judge Smith, in his dissent to United States v. Robinson, 354 F.2d 109, at 115, is holding that the admissibility of inculpatory statements made by a suspect prior to the commencement of formal proceedings against him will not be dealt with by ascertaining whether the arresting officers are accusing him of criminality, but will be dealt with under the traditional rubric of “voluntariness,” thereby avoiding the inquiry relative to the constitutional right to the assistance of counsel when the statement was elicited.1
I am dismayed that our court has refrained from facing up to the issues posed by Escobedo as applied to the facts of this case and those in U. S. v. Robinson, 2 Cir., 354 F.2d 109, decided this day. The opinions in Escobeda may well be “fraught with creative ambiguity,” 2 and it is proper to have a fair debate as to when the rights attach that are outlined there.3 It is my belief that we are required to rule upon the admissibility against him at his trial of an accused’s inculpatory statements made to officers by-the test laid down in Escobedo. We cannot ignore that responsibility case by case or avoid it by holding that the inquiry would serve no useful purpose.
In this opinion ANDERSON, Circuit Judge, concurs.
. Certainly dissenting Justices in Escobedo believed the opinion of the Court meant “abandoning the voluntary-involuntary test for admissibility of confessions.” See dissenting opinions of Justice White, speaking for himself, Justice Clark and Justice Stewart, 378 U.S. 495 at 496, 84 S.Ct. 1767 at 1768, and separate dissenting opinion of Justice Stewart, 378 U.S. 493, 84 S.Ct. 1766.
. Freund, Rationality in Judicial Decisions, in Nomos VII: Rational Decision 109, at 118 (Friedrich ed. 1964),
. Several alternative statements of the “critical” stage at which time the rights conferred by Escobedo attach are spelled out in Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, at 58-59 (1965).