(concurring) :
Two of Drummond’s contentions as to the use of inculpatory statements warrant additional comment.
The first is his claim that he sought to telephone his wife and his lawyer in the early morning of September 29, 1962, at the beginning of his interview at F. B. I. headquarters, and was refused permission by Agent Palguta- — a request which the Government says was made only when the interview was coming to a close. As a result of the understandable lack of findings due to this having been a pre-Escobedo trial, we cannot know whether Judge Murphy rejected Drummond’s testimony concerning the time of the request as unworthy of belief, as the judge would have been entitled to do even without rebutting evidence, Dyer v. MacDougall, 201 F.2d 265, 269 (2 Cir. 1952), or believed Drummond but considered his inculpatory statements admissible nevertheless, as almost everyone would have thought at the time. Since on the first view there would be no legal issue whereas the second raises problems of some difficulty, I would prefer to hold this appeal pending a hearing and finding by the judge on this simple point of fact, which might eliminate all legal questions and would illuminate any that remained.1 Cf. United States v. *155Santore, 290 F.2d 51, 67-68 (2 Cir. 1959), cert. denied, 365 U.S. 834, 81 S. Ct. 749, 5 L.Ed.2d 744 (1960).
Since a majority cannot be assembled for that course, I think that, for purposes of this appeal, I must accept Drummond’s version of the facts, however unlikely it may be. So doing, I join for affirmance, for reasons similar to those expressed in my concurrence in United States v. Cone, 354 F.2d 129 (2 Cir. 1965). The three-hour'non-coercive interrogation of Drummond at F. B. I. headquarters in the early morning of September 29 was essential to the investigation of a conspiracy placing the country’s very existence in peril. It was imperative for the F. B. I. to find, and to find quickly, who were involved, what damage had been done, and what countermeasures must be taken to avert disaster. Nothing in the language or known purpose of the Assistance of Counsel clause of the Sixth Amendment suggests an intention by the founders that the police must give a man, properly arrested for such a crime, immediate access to family and counsel — with the risk that this may delay or even prevent any meaningful inquiry or alert other participants in a plot against the nation’s existence. Neither, despite the statement in Massiah v. United States, 377 U.S. 201, 206-207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), on the quite different subject of post-indictment interrogation, would I construe the Amendment as requiring that, at this early stage, agents of government may reject a request for access to counsel only under penalty of foregoing use of anything thereafter said by the suspect or its “fruits.”
For reasons indicated in my concurrence in United States v. Cone, supra, I do not read the Assistance of Counsel clause of the Sixth Amendment as speaking to such a truly investigative stage at all. The nub of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), is that when any legitimate investigative purpose is nominal as compared with the desire to extract an inculpatory statement, questioning to procure a confession stands no differently in the police station than before a magistrate; in order for the guarantee of the Assistance of Counsel to be truly meaningful, it must extend to a penumbral zone before the “criminal prosecution” has begun and a suspect has been formally “accused.” Unless the “penumbra” extends all the way to the point of arrest, which the Court in no way held, the interests of society must be dominant at the beginning of the investigative process, just as the interests of the future “accused” prevail at the end. If the need for saving a kidnapped girl’s life justified a failure to warn of the rights to remain silent and to have the assistance of counsel, as Chief Justice Traynor so rightly held in People v. Modesto, 42 Cal.Rptr. 417, 398 P.2d 753 (1965), protection of the nation afforded equal justification for briefly postponing Drummond’s access to counsel here. Moreover, even if we assume Drummond made the request to telephone when he said he did, he did not make it clear that granting it was a condition of his willingness to talk.
The post-arraignment interview on the evening of September 29, which forms the subject of the dissents of my brothers Waterman and Anderson, stands on an entirely different legal basis. At this period Drummond had a constitutional right to the assistance of counsel, as decisions available at the time of his trial made plain. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963).2 Here too we would *156be assisted by an explicit finding from the trial judge, who saw and heard the witnesses, giving his interpretation of the events. But in this instance we have more evidence — very likely all we ever can have — and, since the right to counsel after arraignment was clear at the time of trial, we can properly assume the judge was satisfied that Drummond had elected to forego it. Drummond had solicited the interview with the F. B. I. agents; when they asked him whether he had an attorney, he responded with a historical reference and proceeded to read, edit and sign the statement and to carry on further discussions with them, all despite an explicit warning of his right to consult a lawyer. If there be an ambiguity in the situation, the judge’s resolution of this in the Government’s favor surely was not clearly erroneous.3
. At such a hearing the Government would surely offer Agent Palguta’s log, showing that Drummond’s request was made only at the end of the interview, and would call Palguta and possibly other witnesses. Agreeing with my brother Kaufman that in fairness we ought not to foreclose the Government from presenting such evidence before deciding to order a retrial, see fn. 4 to the court’s opinion, I am not convinced that we can properly consider an exhibit that was never offered, even *155though the failure to offer it was excusable. It would he better not to create further problems, under Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), which a hearing before Judge Murphy could so readily avoid.
. Although Hamilton could he distinguished on the basis argued in Judge Anderson’s dissent, fn. 2, White cannot be. The arraignment there was not “critical” since White was allowed to change his guilty plea; yet the Court held that what he said at that time without the assistance *156of counsel could not be used against Mm. And, quite apart from the light later shed by Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), there could be no real doubt that these decisions applied to out-of-court interrogation of an arraigned prisoner by the police or the prosecutor.
. Although a contrary argument could be constructed on the basis of the Court’s listing “the police have not effectively warned him of his absolute constitutional right to remain silent,” 378 U.S. at 491, 84 S.Ct. at 1765, as a critical factor, I agree with Judge Waterman that the Sixth Amendment right recognized in Escobedo goes beyond the protection with respect to interrogation afforded by the self-incrimination clause of the Fifth. Indeed, as to the post-arraignment questioning here at issue, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), had already made that clear. The case he poses — of an intelligent prisoner who, after arraignment, repeatedly demands counsel but, after thorough warning, continues to answer questions — would be a difficult one; presumably the critical issue would be whether it was made clear that he had the right to consult counsel before answering rather than later. But the very statement indicates that such a case is not too likely to arise; and the judge was warranted in thinking it was not presented here.