(dissenting) :
I must dissent for the reason that in my view Collins’ conviction was obtained through use of an oral confession secured from him in violation of constitutional safeguards specifically prescribed by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
If the sole issues on this appeal were the delay in arraignment of Collins and the voluntariness in fact of his oral confession, I would abide by the trial court’s exercise of discretion. Even as to these issues, however, the questions presented are much closer than the majority indicates. In this case a 19-year old addict was arrested in Queens County, New York, at 3:00 P. M. on October 5, 1970, and taken to a local New York City precinct station where he was processed and an unsuccessful attempt was made to interrogate him. He was held there *798from 3:25 P. M. until 6:30 P. M. instead of being brought directly to the United States Courthouse in Brooklyn for arraignment1 and then taken to the FBI Headquarters in Manhattan, the trip from Queens requiring approximately two hours instead of the usual half-hour to one hour. There he was again “processed” until 10:30 P. M., another effort to interrogate him was unsuccessful, and by 11:00 P. M. he was lodged at the Federal House of Detention in Manhattan, where methadone was administered.
Some time between 10:00 and 10:30 A. M. on the following morning two FBI agents drove him from the Federal House of Detention to the United States Courthouse in Brooklyn. During the course of the trip they made another unsuccessful attempt to interrogate him. Arriving at the courthouse they did not bring him immediately to the United States Magistrate’s office for arraignment, but took a detour via the United States Attorney’s office where one more unsuccessful effort at interrogation was made. Finally, when the interrogation was taken over by an Assistant United States Attorney, Collins broke down at 11:45 A. M. and confessed. The confession was obtained 20 hours after his arrest, after he had on three occasions asserted his constitutional right to remain silent, and without the benefit of his having legal counsel. It seems to me that the totality of circumstances (his age, lack of counsel, addiction, assertion of his right to remain silent, and the 20 hours without arraignment between his arrest and confession) posed a strong potential for compulsion which might have warranted the rejection of his statements according to the standards set forth in Title II of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 3501.2 However, since the weight to be extended to some of these factors turns on credibility, I would not disturb Judge Bartels’ findings as to voluntariness.
Even accepting the trial judge’s findings that Collins’ confession was voluntary, however, the Supreme Court’s decision in Miranda mandates its exclusion on constitutional grounds. In that historic decision the Court prescribed specific procedural safeguards to be followed by law enforcement officials in the conduct of in-custody interrogation and prohibited the government from introducing into evidence as part of its case any statement obtained in violation of these procedures, regardless of its vol-untariness in a particular case. After outlining the warnings that must be given and the steps that must be taken with respect to a suspect held in custody before lawful interrogation might proceed the Court stated:
“We have concluded that without proper safeguards the process of in-custody interrogation of persons suspect- . ed or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights *799must be fully honored. (Emphasis supplied) •x * * * * *
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Emphasis supplied) 384 U.S. 436, 467, 473-474, 86 S.Ct. 1602, 1624.
The foregoing procedures represent the law of the land. The record here makes it clear that they were disregarded by the government interrogators. When the FBI agents, immediately after arresting Collins and giving him the warning prescribed by Miranda, first attempted to interrogate him about the bank robbery he advised them that “he didn’t want to talk about it [the bank robbery]” (Testimony of FBI Agent Mahaf-fey). Strict and literal application of the Supreme Court’s directions in Miranda would have required the government thereafter to cease efforts to interrogate Collins, at least until he was represented by counsel.3 But even if it be assumed that Collins’ initial claim of privilege on October 5th did not preclude further attempts to interrogate him on the following day, the record is clear that the crucial statement finally given by him on October 6th at 11:45 A. M. to the Assistant United States Attorney was obtained as the result of persistent efforts to interrogate him after he had stated on two occasions within a short period on the morning of October 6th that he did not want to discuss the bank robbery or to make a statement. More specifically, after he was picked up by FBI Agents Hardin and Neville at the Federal House of Detention between 10:00 A. M. and 10:30 A. M. and, following Miranda warnings, they attempted to interrogate him, he stated that he didn’t want to discuss the matter (Testimony of Agent Hardin), and “that he did not want to make a statement” (Testimony of Agent Neville). When, shortly after they arrived at the courthouse at approximately 11:00 A. M., the agents again gave him Miranda warnings in the office of the Assistant United States Attorney and again attempted to interrogate him, Collins once more stated that he did not want to talk about the bank robbery. The situation at approximately 11:15 to 11:30 A. M. on October 6th was summed up by Agent Neville as follows:
“Q. So he [Collins] had told you in the automobile he didn’t want to talk about [the bank robbery] and he told you again in Mr. Puccio’s office that he didn’t want to talk about it? * -x- -x- * * *
“A. Yes, sir.”
With commendable candor FBI Agent Hardin conceded that the agents were using the period during which they waited for the arrival of the Assistant United States Attorney in an effort to obtain a statement from Collins. In furtherance of this objective, the agents talked about the robbery between themselves, obviously hoping that their conversation would influence Collins. They told Collins that “there is a strong possibility that he may have something to do with it [the robbery],” that they were appealing to his better nature in order to stop bloodshed and that a “reliable” informer had pegged him as one of the robbers. With the stage thus set, Assistant United States Attorney Puecio ar*800rived. Once more Miranda warnings were given to Collins, this time by Pue-do, details of the government’s case against him were outlined by the FBI agents to Puccio in Collins’ presence, and then the Assistant United States Attorney sought to induce Collins to talk. Against this background it is not surprising to find that after initially refusing to talk, Collins, a 19-year old addict, broke down within 15 minutes and admitted his involvement in the robbery. The next five hours were spent by the agents in getting details, including information with respect to others involved in the robbery.4
I find it difficult to conceive of a clearer violation of the plain and unequivocal proscription laid down by the Supreme Court in Miranda than that revealed by the record here. Despite the fact that Collins had on three occasions asserted his constitutional right to remain silent, two of them within a period of approximately one hour before he finally began talking, repeated efforts were made to interrogate him by those who held him continuously in their custody. Under such circumstances a waiver of the right to remain silent should not be inferred.5
The necessity for rejecting statements obtained under similar circumstances as the result of custodial interrogation has been .recognized by other circuits. See, e. g., United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970); United States v. Priest, 409 F.2d 491, 493 (5th Cir. 1969); United States v. Slaughter, 366 F.2d 833, 841 (4th Cir. 1966) (en banc). I find no basis for the majority’s attempt to distinguish the decision in Crisp and Priest on the ground that the defendants there were subjected to “intensive questioning immediately following a refusal to answer.” Neither court *801placed its decision on any such ground.6 Indeed, the Supreme Court has indicated that a statement taken in violation of the protections provided in Miranda must be summarily excluded. Questions of the circumstances of its taking, such as whether or not subsequent questioning was “intensive,” are relevant only in applying the Due Process standard of vol-untariness which prevailed before Miranda, Davis v. North Carolina, 384 U.S. 737, 739-740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), and that standard does not apply here.
We are not here confronted with a change of circumstances or a situation where a suspect, some hours or more after interrogation has ceased, voluntarily waives his right to remain silent and initiates a statement. See, e. g., United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970); State v. Godfrey, 182 Neb. 451, 155 N.W.2d 438, cert. denied, 392 U.S. 937, 88 S.Ct. 2309, 20 L.Ed.2d 1396 (1968).
The effect of the majority’s decision is to overrule sub silentio the precise mandate laid down by the Supreme Court in Miranda. A substantial segment of the federal judiciary may justifiably believe that the Supreme Court went too far in that decision and that the specificity of the procedural safeguards prescribed by it has had the effect of creating an unnecessary strait jacket that should be loosened to permit use of a custodial statement voluntarily given, even though the interrogators have failed to touch all of the bases prescribed by the Supreme Court in Miranda. But any modification of Miranda must come from the Supreme Court, see, e. g., Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), or by constitutional amendment. Until then we are bound by that decision.
. If he had been under 18 years of age, immediate arraignment would have been required by the Federal Youth Corrections Act, 18 U.S.C. § 5035, and the statement obtained from him some 20 hours after his arrest would probably have been excluded, see United States v. Glover, 372 F.2d 43 (2d Cir. 1967); United States v. Binet, 442 F.2d 296, 302 (2d Cir. 1971).
. I concur in the view that this statute modifies the McNabb-Mallory doctrine (McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957)) to the extent of authorizing a district court, notwithstanding delay in arraigning a defendant, to admit a statement given by him upon finding, after consideration of the totality of the circumstances (including the delay), that it was voluntarily given. See United States v. Marrero, 450 F.2d 373 (2d Cir. 1971); United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970); Grooms v. United States, 429 F.2d 839 (8th Cir. 1970).
. The Supreme Court did indicate that where a suspect has an attorney present “there may be some circumstances in which further questioning would be permissible,” 384 U.S. at 474 n. 44, 86 S.Ct. at 1627. Collins contends that he telephoned his mother on the night of October 5th and asked her to get him a lawyer but the government replies that as far as it knows he did not make the phone call until between 1:00 and 2:00 P.M. on the next day, after he had started his confession. He was represented by counsel when he was finally arraigned at 5:45 P.M. on October 6th.
. Although the majority does not discuss the question, its statement (page 793) that the evidence against Collins “was overwhelming” suggests that admission of Collins’ statement, if erroneous, was “harmless beyond a reasonable doubt,” see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Although there is authority supporting the view that admission of an unlawfully obtained confession requires automatic reversal, Payne v. Arkansas, 356 U.S. 560, 567-568, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); People v. Schader, 62 Cal.2d 716, 730-731, 44 Cal.Rptr. 193, 401 P.2d 665, 673-674 (1965), in any event, it is difficult to see how admission of Collins’ confession would constitute harmless error, since it was the source of the “overwhelming evidence” against him. Befoz-e Collins confessed, the Government did not know the identity of the other bank robbers. Collins furnished them with the first names of some of the others, a description of the get-away car, and other information which enabled the government to apprehend the defendants. It was the testimony of the co-defendants thus apprehended that constituted the “overwhelming evidence” against Collins.
. See, e. g., the American Law Institute’s Model Code of Pre-Arraignment Procedure (Study Draft No. 1, 1968) § A5.08(2) (e), drafted after Miranda, which states:
“No waiver shall be sought from an arrested person after any time that he has indicated in any manner that he does not wish to be questioned or that he wishes to consult counsel before submitting to questioning. [No statement . made by an arz-ested person after any time that he has indicated in any manner that he does not wish to be questioned or that he wishes to consult counsel before submitting to questioning, unless it is made in the pz-esence of or upon consultation with counsel, shall be admitted into evidence against such person in a criminal proceeding in which he is the defendant.]”
The Notes on subsection (e) state that:
“As the investigation of the case develops, it may be quite natural for the police to inquire of an arrested person whether he wishes to change his mind and make a statement or submit to questioning, and there may be cases where such a change of mind can occur without any semblance of coercion. On the other hand, even a voluntary-seeming waiver given after a person has once indicated he does not wish to cooperate may be the product of subtle coercion; the very passage of time while a person continues to be in police detention will create fears and pressures undermining the will to insist on one’s right to silence and right to counsel.”
. In Orisp the Seventh Circuit stated:
“Both the letter and spirit of the Supreme Court’s decision in Miranda call for condemnation of even this seemingly innocuous police conduct. The procedural safeguards imposed in that case were premised upon the observation that custodial interrogation in the absence of defense counsel is inherently intimidating and destructive of free enjoyment of the constitutional privilege against self-incrimination. To be effective, those safeguards must be fully observed, and the rights of the suspect must be jealously guarded. Not even the slightest circumvention or avoidance may he tolerated. The rule that interrogation must cease, in whole or in part, in accordance with the expressed wishes of the 462 F.2d — 51 suspect means just that and nothing less. Once the privilege has been asserted, therefore, an interrogator must not he permitted to seek its retraction, total or otherwise. Nor may he effectively disregard the privilege by unreasonably narrowing its intended scope.” (Emphasis supplied.) 435 F.2d 354, 357.
In Priest the Fifth Circuit also recognizes that Miranda is absolute, stating:
“Situations to which Miranda applies . . . are governed not by the general test of voluntariness but rather by the more precise test of whether the constitutionally required warning was given and, if given, whether the rights set out by that warning were knowingly, intelligently, and voluntarily waived.” 409 F.2d 491, 493.