(concurring and dissenting).
I agree that these cases must be reversed for, although the appellants were repeatedly and properly warned by state authorities of their rights to counsel, there is nothing in this record to support a waiver of that right. We learn from the specifics of Miranda that neither the silence of the accused nor the actual giving of a statement is sufficient in this regard and the evidence in this case offers nothing further. But I do not agree, as I read the main opinion to hold, that an express declination of the right to counsel is an absolute from which, and only from which, a valid waiver can flow. Miranda states that such a declination followed closely by a statement “could” constitute a waiver. It does not negate other possibilities. Nor would I.
The main opinion also holds that on re-trial all the inculpatory statements of the appellants must be excluded. I am not satisfied that this record requires such a firm direction. The invalid interrogation by state authority does not necessarily blanket a federal prosecution with the “fruit of a poisonous tree.” Green v. United States, 10 Cir., 386 F.2d 953. I agree, of course, that a written waiver-statement merely reiterating earlier oral statements does not cure a violation of Miranda but I do not consider the present record sufficient to dictate the application of that rule. The United States, if it desires to do so, should be given an opportunity to show that the taint of the state in*990terrogation did not project to the federal interrogation and that the latter was within the confines of Miranda. There is, in this record, some indication that the statement of Sullins followed quite closely after he signed the form waiver. In all other matters I concur in the opinion.