(concurring) :
I assume that when the majority opinion says “The admissibility of confessions in federal criminal prosecutions is governed by § 3501 which must be read as a whole,” it does not decide by implication on the serious issues whether that section, added by the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 210, intended to overrule Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or would be constitutional if it did. Cf. United States v. Lamia, 429 F.2d 373, 377 (2 Cir.), cert, denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970); 1 Wright, Federal Practice and Procedure § 76 at 121-22 (1969). Here the Assistant United States Attorney gave the warnings required by that decision. It is too clear to require discussion that, both under pre-1968 and post-1968 standards, the overnight lodging of Marrero in the Federal House of Detention was not an “unnecessary delay” within F.R.Cr.P. 5(a). On the other hand, if the matter were res nova in our court, I would find that the detour through the Assistant United States Attorney’s office when a commissioner was available after this long period was such an “unnecessary” delay.
However, we are now spared the necessity for debating the precise effect or the correctness of previous decisions of this court on the application of Rule 5(a). Section 3501(b) states that “the time elapsing between arrest and arraignment of the defendant making the confession” is simply one factor to be considered by the trial judge in determining voluntariness. Section 3501(c) prohibits a ruling of inadmissibility solely on the ground of delay if the confession was given within six hours after arrest plus such additional period as is found to be reasonable considering the means of transportation and the distance to be traveled to the nearest available magistrate, a phrase which can legitimately be read as also including the availability of the magistrate because of the hour of the day. The real issue in this case is whether § 3501(c) implicitly requires a finding of involuntariness when its conditions have not been met, as in my view they were not here. On the basis of the language and the legislative history, I agree with the reasoning in United States v. Halbert, 436 F.2d 1226, 1231-1237 (9 Cir. 1970), that the answer should be in the negative. On that basis, as well as on the ground of harmless error, I concur.