(dissenting from the majority’s opinion, but concurring in the result upon a different ground):
I am of the opinion that the warnings that my colleagues find to have been adequate were not adequate. Here the interrogation by the prosecuting officer of the defendant in custody occurred in New York City on March 1, 1966, at the very time that the four Miranda cases were being argued before the United States Supreme Court in Washington. Certiorari had been granted in the four cases in order “to give .concrete constitutional guidelines for law enforcement agencies and courts to follow.” Miranda v. State of Arizona, 384 U.S. 436, 441-442, 86 S.Ct. 1602, 1611, 16 L.Ed.2d 694 (June 13, 1966). When these guidelines were handed down they were intended “to protect an accused’s Fifth Amendment privilege in the face of interrogation.” One of these guidelines is: “that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today.” Id. at 471, 86 S.Ct. at 1626.
Writing for the Court the Chief Justice continued: “As with the warnings of the right to remain ’ silent and that anything stated [by the accused] can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.” Id. at 471-472, 86 S.Ct. at 1626.
Moreover, he later stated that “if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.” Id. at 474, 86 S.Ct. at 1628 (emphasis supplied). To the same effect, id. at 479, 86 S.Ct. 1602.1
In view of these clear and unequivocal postulates I do not agree with my broth*700ers that the interrogation of March 1 complied with the above-quoted guideline laid down three and one half months later. I would wish that it had, for the United States Attorney does not seem to have been overreaching here and if he had known what the Miranda holdings were to be, I am sure he would have complied with them. ■ Therefore, one is indeed sorely tempted, even though the accused’s trial began after Miranda,2 and was therefore governed by the Miranda postulates, to hold that the interrogation, having been conducted pre-Miranda, ought to be construed to have complied with Miranda guidelines. Yet it is clear that Vanterpool was not informed of his right to have a lawyer present when questioned.
Nevertheless, despite my belief that the Miranda guidelines were not complied with, I join my colleagues in affirming the appellant’s conviction.
The Government carefully excluded appellant’s improperly obtained statement from the evidence it introduced in the prosecution’s direct case. It was in no way referred to and its existence was not even hinted at. Appellant took the stand in his own defense and testified that he had been offered money by one of the agents to introduce the agent to narcotics peddlers so that the agent could buy from them, that the agents used him as an informer, that he introduced the agent to two peddlers and that the agents turned on him when he failed to introduce them to one Juan with the result that he was arrested. His own counsel then elicited from him that after the arrest and before his arraignment the accused had a conversation with someone in the United States Attorney’s office who the appellant said asked him “* * * ¿id the officers proposition me, and did I ever do this before, did I ever take them anywhere to anybody, and I told him I only did it twice * Defense counsel then asked: “You say you only did it twice, what do you mean, did what twice?” Appellant answered: “You know, give them somebody.” Counsel then queried: “Introduce them to somebody?” and appellant replied: “Yes.”
Quite clearly the door was opened for the prosecution to bring out on cross-examination what was actually said at the interrogation, and government counsel on cross-examination elected to do just that — first by reading to the witness, over defense objection, Q. and A. sequences and asking the witness if these sequences took place, and finally, by offering into evidence the entire transcript of the interrogation, which, again over defense objections, became an exhibit in the case.
Though admittedly there is language in Miranda that indicates that even under the circumstances present at this trial the admission into evidence of the transcript of the interrogation violated the protection due this defendant under the Fifth Amendment, we have heretofore stated:
“But we are by no means certain that the Court was addressing itself to the unusual situation where the defendant’s testimony puts in issue the very question of what he told the police. If Armetta had testified not only that he had thought Koslove had borrowed the ear but that he had repeatedly said so in the police station, it is hard to believe that even without a Miranda waiver the Government could not prove that in fact he had told the police an entirely different story of having borrowed the car himself. While Miranda may enable the defendant to testify *701generally as to his innocence free from the impeaching effect of a statement taken from him without the required warnings and waiver, this need not go so far as to include testimony con- . cerning the statement itself any more than the type of embroidery at issue in Walder, a decision with which Miranda did not purport to deal. See United States v. Rivera, 346 F.2d 942 (2 Cir. 1965).” United States v. Armetta, 378 F.2d 658, 662 (2 Cir. 1967)3
It is true that in Armetta the issue of the admissibility of the defendant’s improperly taken statement was first raised on appeal, while here objection to the admissibility was made at trial. Thus, in Armetta our court was necessarily faced with determining only whether the admission of the statement given to the police was “plain error,” under Fed.R.Crim.P. 52(b). Nevertheless, even where timely objection has been made, it is difficult to see how the rule could be otherwise when the fact that there was an interrogation is first injected into the trial by the defendant himself.
While discussing the standards that must be met to establish the waiver of his constitutional rights by one who, without counsel, is in custody, the Court said in Miranda: “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.” 384 U.S. at 475, 86 S.Ct. at 1628.
Surely, therefore, it would not be inconsistent with the great purposes behind the Fifth Amendment privilege, purposes so eloquently set forth by Mr. Justice Goldberg in Murphy v. Waterfront Com’n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), for a court to hold that the privilege is waived where a person who is represented by trial counsel initially injects into his trial in open court by his testimony under oath the substance of a conversation he had with government agents when he, likewise, was in custody and was without counsel. The defense knew that the Government could not introduce the in-custody statement as part of its direct case and that the Government had not done so. The defendant by his own testimony voluntarily and intentionally relinquished his right to have what he said at that interrogation remain hidden from the jury and the trial judge.
. In their dissents in Miranda Justices Clark and Harlan were each of the opinion that FBI warnings issued in the very language in question in the present case would not meet the Miranda test because “the thrust of the Court’s rules is to induce the suspect to obtain appointed counsel before continuing the interview.” 384 *700U.S. at 521, 86 S.Ct. at 1652 (Justice Harlan) ; see also 384 U.S. at 500, 86 S.Ct. at 1641, n. 3 (Justice Clark). Undoubtedly this is an accurate characterization of the majority opinion. See portions of that opinion cited above and also see 384 U.S. at 465-466, 469-471, and 475, 86 S.Ct. 1602.
. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (June 20, 1966). The trial in United States v. Vanterpool also began on June 20, 1966.
. United States v. Armetta, as this case, presents a narrow issue not touched by the holding of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The defendant here, and the defendant Armetta, in testimony elicited by defense counsel upon direct examination, brought into these cases for the first time the fact that there had been police interrogations, albeit ones violative of the Miranda proscriptions, and put in issue the very question of what, when so interrogated, the defendants told the police. See, for example, the treatment of Armetta in Groshart v. United States, 392 F.2d 172 (9 Cir. March 27, 1968), where the Ninth Circuit, although holding that Miranda has undercut Walder, distinguished Armetta from Walder and explicitly declined to consider, id. n. 4, whether in the Armetta situation a statement given at an interrogation violative of Miranda rules may be introduced into evidence by the Government on cross or in rebuttal.