(dissenting) :
I dissent from the holding of the majority that Drummond, at his interrogation by F. B. I. Agents Palguta and Gamber, between 7 and 9:30 p. m. on September 29, 1962, following his initial arraignment before the United States Commissioner, waived his right to have the assistance of counsel.
The circumstances surrounding this interrogation bring it within the holding of the Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The Government agents had in hand ample evidence to establish the corpus delicti and enough in Drummond’s oral confession, given early that morning, to sustain a conviction. It was, by that evening, certainly no longer a general inquiry into an unsolved crime and had definitely focused upon Drummond as a self-confessed accused. Although the Government urges that the continued process of interrogation was for the purpose of ascertaining the scope of the espionage activity in the interests of national security and while to a great extent this was undoubtedly so, the evidence obtained in the interrogation was used at Drummond's trial to convict him. All of the elements on which Escobedo was based are present in Drummond’s case as it stood during the evening of September 29th, 1962, with the exception of the fact that Drummond was warned of his Fifth and Sixth Amendment rights and Escobedo was not. But it is not reasonable to suppose that the Supreme Court intended that the holding of Escobedo would not apply if that single factor were missing, particularly where, as here, Drummond had made it clear that he wanted to retain counsel. Drummond testified that he tried three times to get in touch with a lawyer to represent him. Once toward the end of the first interview with the agents at about 3:30 a. m., September 29th he says he asked to call his wife and a lawyer. As to this, Agent Palguta’s notes in his log disclose that Drummond asked to call his wife but was refused because he was about to be taken before the Commissioner. Drummond claims that he again asked to call a lawyer, while he was at the Courthouse, just before his first arraignment. This is not corroborated by any notes of the agents. Drummond again attempted to call a lawyer after his return to the House of Detention, but the officials in charge refused him permission to do so. At 7:05 p. m. at the evening interview, when Drummond was warned of his right to counsel, he told the agents of his thwarted efforts earlier in the day to call a lawyer. Palguta’s log reflects this as stated in footnote five of the majority opinion, but the agent felt it was no concern of his at that time and did nothing *161to afford Drummond the opportunity to use a telephone.
The majority opinion does not specifically concede or deny Drummond’s right to the assistance of counsel at that stage of the investigation, under the holding in Escobedo. It avoids an interpretation and application of that case to the facts of the present case, and does not attempt fully to distinguish it. The majority do grant that “ * * * the denial of a request to call counsel during a pre-arraignment interview may, in other circumstances, render any incriminating statements inadmissible.” They then go on to say that the “other circumstances” would be the absence of those facts present in Drummond’s case which are: that he is “an intelligent defendant, fully warned of his rights [who] nevertheless clearly evinced a strong desire to co-operate and made elaborate disclosures before his earliest request for counsel * * But this is tantamount to saying that if an accused plainly and emphatically waives his Fifth Amendment right against self-incrimination, he thereby, ipso facto, waives his Sixth Amendment right to the assistance of counsel — a proposition which is untenable on its face.
In concluding that Drummond was not deprived of his Sixth Amendment right to counsel, the majority’s principal reliance is upon the theory of waiver. In effect, they are saying that, in pursuit of a carefully thought-out plan of his own to avoid disaster, or at least mitigate his punishment, by pretending to have engaged in a private and harmless effort, as a patriotic citizen, to trap Soviet spies, and driven by an overwhelming emotional compulsion to tell all, Drummond was insistently cooperative with Government agents; and that Drummond’s affirmative efforts to disclose all he knew were so undeniably voluntary that they operated as a complete waiver, not only of all Sixth Amendment rights that Drummond then knew that he had, but any which might be discovered in the future, as occurred through the holding in Escobedo.
The difficulty with the waiver theory is that at the beginning of the interrogation by the agents on the evening of September 29th, Drummond made it expressly clear that he wanted a lawyer, and at no time then or thereafter did he say or imply that he didn’t want one. It is true that, in spite of not having one present, Drummond went on, without hesitancy or objection, answering questions by the agents.1 While this might constitute a waiver of his right against self-incrimination, it cannot be taken as a waiver of a right to counsel in the face of his express declaration that he wanted counsel. The majority note the accepted, basic, legal requirements for waiver: that it can have validity only if it represents an intentional relinquishment or abandonment of a known right or privilege; that it must be done intelligently and knowingly; and that courts indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) which requires a showing that an accused was offered counsel and that he intelligently and understandingly rejected the offer; and Escobedo v. State of Illinois, supra. They find all of these conditions fulfilled by the post-warning voluntary disclosure by Drummond of additional in*162criminating statements during the evening of September 29th, in spite of his clearly enunciated assertion that he wanted a lawyer. With this conclusion I must disagree. Moreover, it is far from clear how, on the present record of the case, Drummond could be said to have relinquished a known right to the assistance of counsel on the 29th day of September, 1962, when no one knew such a right existed until the Escobedo decision on June 22, 1964.2 As this is a pending case it does not seek a retroactive application of the Escobedo holding.
Perhaps what was done or not done by all concerned with Drummond’s express desire on September 29th, 1962, to have a lawyer, including Drummond’s failure to insist on having one before confessing further, is explained by the fact that no such right was recognized or known on that date; and what the agents meant, and what Drummond thought, was that he was entitled to a lawyer for the formal proceedings in court but not for the investigative stage, once he was regarded as “an accused.” Perhaps that is all Drummond was asking for, but, from the record before us, it would be reasonable to presume that he wanted to consult one at the time he was asking for one. In any event, this court is in no position to say.
As Judge Kaufman so cogently stated in a recent but pre-Escobedo case, United States ex rel. Durocher v. LaVallee, 2 Cir., 330 F.2d 303, 310 (1964),
“Where, as here, petitioners allege that they were unaware of their right to counsel, that they were never so advised, and that, in fact, the Supreme Court did not recognize their right until after their convictions, a finding of waiver would border on the fanciful.”
While it may be said that this case is distinguishable because Drummond was advised of his right to counsel, the facts here are even more compelling because Drummond said he wanted counsel — a combination of circumstances which places a finding of waiver in the present case, as the record now stands, in the realm of the fantastic.
Obviously the trial court never had an opportunity to evaluate the evidence and such factual conclusions as it might have reached in the light of Escobedo. The Government in its brief concedes that the record is incomplete for the purpose of passing upon the issue of waiver. The case should therefore be remanded to the trial court for a finding and ruling on this matter. If the court below concludes that Drummond did not waive his right to the assistance of counsel at the interview from 7 to 9:30 p. m. on September *16329th, 1962, then Drummond is entitled to a new trial. The trial court would also have to pass upon the issue of waiver as it concerned Drummond’s alleged request to call counsel at about 3:30 a. m., September 29th. I agree with the majority that even if the trier found Drummond’s story to be true, all of his oral admissions, made prior thereto, would not be rendered inadmissible.
. It should be noted that Drummond’s message to the agents, asking them to see him on September 29th, was simply to give them the name of Esther Katz to whom he had referred in his previous statements, but whose name he had then been unable to recollect, and also to show them on a map the place where he thought the camp was located. The incriminating statements which Drummond gave in addition were brought out by the agents’ interrogation of him in making the most of the opportunity the visit afforded them. Though he apparently answered willingly, he did not beckon the agents for the purpose of insisting upon giving them this additional information. These circumstances disclose precisely the kind of situation in which Escobedo holds the right to counsel necessarily attaches.
. I must differ with the view, which my brother Friendly suggests in Ms concurring opinion, that, by the evening of September 29th a right to counsel had attached under the rule laid down in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), which preceded Drummond’s interrogation, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), which followed it. In Hamilton and White the right to counsel attached, not simply because the defendants were brought before a magistrate for .arraignment, but rather because the state laws required that the accused enter a plea at the arraignment which made it “a critical stage in a criminal proceeding.” Hamilton v. State of Alabama, supra, 368 U.S. at 52, 82 S.Ct. at 157; White v. State of Maryland, supra, 373 U.S. at 60, 83 S.Ct. at 1051. In the present case, even though Drummond was taken before the United States Commissioner in the early hours of September 29th, he was not required to enter any plea nor did anything occur which might indicate that the proceedings had reached a “critical stage.” In fact, all that happened at the brief hearing before the Commissioner was that bail was fixed and a date for the postponed hearing was set. Hamilton and White were based upon a finding totally absent from the circumstances of the initial, inconclusive and incomplete arraignment in this case, namely that “Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.” 368 U.S. at 55, 82 S.Ct. at 159; 373 U.S. at 60, 83 S.Ct. 1050. Therefore Drummond’s right to the assistance of counsel in the evening of Sepetmber 29, 1962, depends solely upon the holding in Escobedo.