(dissenting) :
I cannot subscribe to the opinion of my Brothers. I respectfully record my dissent.
This interrogation was as free of coercion and its hallmarks as any interrogation of a prisoner held on a formal charge could be. Done after repeated explanation to him of his rights, and observance of them, I find no basis for overturning the District Court’s finding that it was voluntary. I think it both unnecessary and wrong to distort Slaughter’s statement to the Commissioner that he wished an opportunity to obtain a lawyer to represent him in defense of the Dyer Act charge into a request for the assistance of a lawyer during interviews occasioned by the continuing investigation of the homicide, a thought Slaughter never expressed.
The Commissioner had explained to Slaughter the elements of the Dyer Act offense, his right to remain silent, the possible use against him of anything he said and his right to counsel. The ensuing discussion between the Commissioner and Slaughter about counsel was clearly referable to representation in the Dyer Act case, specifically in the preliminary hearing. When Slaughter said he had a lawyer or thought he could get one to represent him in that proceeding, the hearing was continued to afford him that opportunity.1
When the question of bail was taken up, the Commissioner was told that Slaughter was suspected of the murder of Reed.2 The homicide was under active investigation which was to continue for many months. Indeed, Slaughter was not charged with the murder until more than fifteen months later when a grand jury indicted him on September 9, 1963.
Clearly, Slaughter knew that the homicide was under investigation. He had been asked about it before, and though he had denied knowledge of it, when the Commissioner was told in his presence that he was suspected of it, he had every reason to believe that he would be asked about it again.
Still, he did not express or intimate in any way a desire to have a lawyer at his side in any subsequent interview. At no other time, either before or after, did he express or intimate any such wish.
On May 29,1962, the day after Slaughter had been presented to the Commissioner, the agents had developed additional information conflicting with some of the details of the story that Slaughter had told them earlier about his claimed purchase of the automobile. They sought his explanation of this additional information and to question him about the homicide. That is a perfectly legitimate and proper investigative procedure.3
Before asking him any questions, however, the agents again explained to him that he need not talk, that anything he said might be used against him, and that he had a right to consult a lawyer be*845fore talking to them. He was not told of an undefined right to counsel which he might have related to the formal defense of the Dyer Act charge, the right he had discussed with the Commissioner the day before; he was told specifically that he had a right to a lawyer’s advice and assistance in connection with that very interview.
As the majority opinion notes, this was not the first time F.B.I. agents had informed Slaughter of his right to the advice and assistance of a lawyer at the time of, and in connection with, an interview or an interrogation. Contrary to the impression one might glean from the majority opinion, however, these were not nebulous statements of a right to counsel in an uncertain context; at the moment of arrest and at the opening of each subsequent interview, he was specifically told that he need give no information and of the right to consult a lawyer before he gave any. There is no doubt that Slaughter was aware of his right to a lawyer at the interrogation stage, but he never gave the slightest suggestion of a wish to avail himself of it. Clearly, he thought he could handle that alone, and he knew that he could terminate any interview by a bare expression of a wish to talk no more. He had twice done it.
On May 29, 1962, however, he chose to talk. In a sterile atmosphere free of any suggestion of threat or promise, aware of his rights not to talk at all and to consult a lawyer before deciding whether to talk and aware, too, that an attempt to exercise any of those rights would be scrupulously observed, he claimed none of them. He chose to talk. In doing so, I think he waived all of his Fifth and Sixth Amendment rights, for he knew he could then freely exercise them, but preferred not to.
Slaughter was not being held incommunicado. During the course of the interview of May 29th, he expressed a wish to speak to his wife on the telephone. He was permitted to do it. If he had wished to speak to a lawyer on the telephone, he would have been allowed to do it, and he knew it. If he had indicated a wish that the interview be postponed until he could consult a lawyer, that, too, would have been done, and he knew it.
Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not govern here, for Slaughter was tried long before it was decided.4 It is not inappropriate, however, to note its reference of the right to counsel at the interrogation stage to the Fifth Amendment right against self incrimination. It emphasizes the irrelevance of Slaughter’s statement to the Commissioner the day before that he wished to engage a lawyer to represent him in the Dyer Act case. The question here, whether he waived his rights not to be questioned at all and not to be questioned until he had consented to it after consulting a lawyer, rights deriving principally, at least, from the Fifth Amendment, is not irrevocably bound up with his right to representation in the formal proceedings in the Dyer Act case, a right derived exclusively from the Sixth Amendment. The difference is highlighted by the specificity of the F.B.I. Agents’ explanation of the right to counsel in immediate terms of the requested interview. A waiver of one of those rights to counsel in one context is not inconsistent with an unwavering insistence upon the other. The premise upon which the majority rejects the suggestion of waiver of his right not to talk or to talk only conditionally, that such a waiver would be a departure from his announced intention to exercise his Sixth Amendment right to counsel in the formal defense of the Dyer Act charge, or a retraction of it, appears to me to be baseless.
Here it may be appropriate to interpolate that Slaughter never confessed to anything. He made no statement directly implicating him in the homicide. All that he did was to vary his version of some of the details of his story of a purchase of the vehicle. Such statements, *846intended to be exculpatory, are to be excluded when offered by the prosecution, if clearly incriminating statements, obtained under the same circumstances, would be excluded, as Miranda teaches, but what occurred underlines Slaughter’s evident fearlessness in talking on May 29th and his belief that he did not then need the protection of any of his known rights, except his right to terminate the questioning whenever he wished.
Miranda does teach that once a prisoner has requested the assistance of counsel while being interrogated, the interrogation must cease until a lawyer has been obtained or provided, the prisoner has consulted with him and the lawyer is present or there is clear consent to questioning in his absence. Even if Miranda generally governed here, however, it would be inapplicable, for Slaughter never made such a request. There was no suggestion that he ever wished it. After Miranda of course, his waiver would have been more formally recorded, but, in this pr e-Miranda case, there is no warrant for this appellate court holding, as a matter of law, that there was no waiver when Slaughter admittedly and incontestably knew that he need not disclose anything, that he had a right to consult a lawyer before disclosing anything and could terminate the interview by an expression of the unconditional or conditional wish, but, knowing all that, and without importunity of any kind, chose unreservedly to talk.
Miranda also tells us that once a prisoner has invoked his privilege of remaining silent, interrogation must stop. Slaughter had done that the day before. Interrogation then stopped. Whether with respect to a trial conducted after Miranda, that decision means that under no circumstances can there ever be another attempt at interrogation, we need not decide. Here the question is whether the attempt, after a day’s lapse of time was coercive under all of the circumstances. I think it was not.
On May 28th, the day before, Slaughter terminated an interview with a statement that he wished to talk no more. Conversation during the return trip from the Commissioner’s office was similarly cut off. On that day, however, Slaughter must have been weary. He had scarcely any sleep the night before. While the record does not disclose his exact words or the specific circumstances in which they were uttered, it is readily inferable that his expression was .of a wish to talk no more then and not an invocation of a right not to be questioned again.
The agents who interviewed him on May 29th were not present the day before. They testified they had not known of his termination of interviews the day before. Had they known, however, what they did on the 29th was hardly coercive as a matter of law in light of their careful explanation that he need not talk and the readiness with which Slaughter entered upon and carried on the conversation.
If a police official persists in an interrogation after explaining to a prisoner that he need not talk and the prisoner’s expression of an election not to talk, the prisoner may soon get the impression that the statement of his right was an empty formalism and observance of his right a forlorn hope. This record requires no such finding, however. Slaughter’s rights had been scrupulously observed. There is no doubt that he knew on May 29th when he responded to the questions of the two new agents that he need not talk to them and that they would respect his right if he chose not to talk.
In Miranda, the Supreme Court expressed at length its approval of the F.B.I. practice as disclosed to it, and stated that its practices were Miranda's requirements. The F.B.I. has a reputation for fairness, and its internal discipline is such that, generally, its regulations and instructions are carefully obeyed by its agents. Under the circumstances, there is no compelling need to pick at its practices or to overturn convictions because of some slight, imagined flaw.
This is particularly so, in a case such as this, when the evidence of the state-*847merits made on May 29, 1962 bore so remotely and tangentially on the issues at the trial. It reflected upon his credibility; it added nothing to the proof of his guilt. It was a long trial involving many witnesses who had to be brought from distant places. To put the government to the great expense and trouble of retrying him and to further dilute the finality of judgments in criminal cases is too high a price to pay for indulgence of a sentimentalism.
Of course, I find no flaw whatever. I find nothing coercive, nothing in violation of the Fifth or Sixth Amendments in questioning Slaughter after repeated, careful explanation to him of his right to counsel in the interrogation stage and at that very time, a right Slaughter never attempted to exercise, merely because he had expressed a wish for the assistance of counsel in the formal proceedings in the Dyer Act case.
The cases in other courts uniformly support my position. An uncounseled prisoner, either before or after arraignment, may waive explicitly or, in a preMiranda case, implicitly, his right to a lawyer in connection with an interrogation after the expression of a wish for a lawyer.5
I would affirm.
. An engaged lawyer failed to appear on the date to which the hearing was continued. Because of his absence, there was a further postponement. Other continuances were granted, and, ultimately, the court appointed a lawyer to represent him.
. He was suspected of the murder, of course, because there was probable cause to believe he had stolen the victim’s automobile. The agents may have thought him a likely suspect in the murder ease, even the most likely suspect, but, at that time, they had no more than suspicion. Whether, under these circumstances, the investigation had then “focused” upon him within the rule of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, I find it unnecessary to determine, for I find no deprivation of any right to counsel.
. His lawful detention under the Dyer Act charge was not a barrier to further reasonable interrogation of him in the course of a continuing investigation of the homicide. United States v. Carignan, 342 U.S. 36, 71 S.Ct. 853, 95 L.Ed. 1363.
. Johnson v. State of New Jersey, 384 J.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
. United States v. Drummond, 2 Cir., 354 F.2d 132 (Drummond had thrice been denied permission to telephone a lawyer At the opening of the post-arraignment interview, he told the agent of the last denial. Though the agent did nothing to rectify the earlier denial, Drummond was held to have waived his right to the assistance of counsel in connection with that interview, because he responded readily after explanation of his rights); United States v. Currie, 2 Cir., 354 F.2d 163 (prearraignment interview after the defendant had taken steps to obtain ? lawyer, but before he had succeeded); United States ex rel. Stovall v. Denno, 2 Cir., 355 F.2d 731 (Judge Friendly’s opinion, dissenting; the majority did not reach the question because they found no right to counsel in connection with that post-arraignment procedure).
Each of those pre-Miranda cases were decided upon the assumption that the principles of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, were applicable, as they are here.
Even if a prisoner has a lawyer and has consulted him, he, alone in the lawyer’s absence, may waive his right to his lawyer’s assistance in connection with an interrogation. He does so in a preMiranda case by responding readily, if he knows his rights. Commonwealth of Pennsylvania ex rel. Craig v. Maroney, 3 Cir., 348 F.2d 22, 31-32, rehearing denied by the court en banc, three judges dissenting because the interrogation was after the indictment, 352 F.2d 30; Babb v. United States, 8 Cir., 351 F.2d 863; Loftis v. Eyman, 9 Cir., 350 F.2d 920; Beavers v. United States, 9 Cir., 351 F.2d 507.