(dissenting) :
I believe that the majority opinion, possibly due to an incorrect characterization of the reasoning of the district court, overrules sub silentio the guiding principles set forth in this court’s decision in United States v. Cobbs, 481.F.2d 196, 200 (3d Cir. 1973), upon which the district court relied. Particularly because this is not an en banc decision, I respectfully dissent and would affirm the district court judgment on the facts of this record.
According to the district court, “[t]he critical issue in this case ... is whether the waiver of the right to counsel should be held to be valid”. After a careful analysis, the court found that considering the totality of the circumstances, the Government had failed to meet its burden of proving that the statement was properly obtained and that the defendant had voluntarily and knowingly waived his right to counsel. In making this finding, the court relied on the following factors: (1) although technically competent at the time of his interrogation to understand the nature of his constitutional rights and the meaning of his signed waiver, defendant was nevertheless suffering from mental illness, and the FBI agents who obtained the waiver and subsequent statement knew that he had previously been a patient in a mental hospital; (2) the Miranda warnings were given to defendant only in a written form, which he read and signed without any oral explanation from the agents; (3) defendant showed no awareness that he might be represented by Mr. Moon, a court-appointed lawyer located in the same city where he was arrested and who repre*1382sented him on another bank robbery-charge on which he was awaiting sentence in that district; and (4) the FBI agent failed to contact Mr. Moon prior to the interrogation, even though he knew that Mr. Moon represented defendant in the Peoria case and correctly assumed that he would represent him in any other legal trouble in that Illinois district at that time.
These last two factors seem to have been the most important considerations in the view of the district court, for much of its oral opinion is taken up with a discussion of United States v. Cobbs, supra,. In Cobbs, this court held that a custodial interrogation of de: fendant after counsel had been appointed, but without notice to or permission of counsel, did not violate defendant’s rights to remain silent and to have counsel pri- or to the interrogation where defendant had freely and intelligently waived those rights. However, the opinion went on to provide district courts with the following guidance:
“Although the practice of custodial interrogation in the absence of and without the permission of retained or appointed counsel is technically permissible, the practice is not commendable. The relationship between lawyer and client risks significant erosion and the ability of counsel to effectively represent his client is seriously jeopardized when this kind of interrogation ensues. These risks would be materially reduced if in such situations the District Court, in inquiring into the voluntariness of such statements would expect the prosecution to demonstrate that the waiver of the presence of counsel was knowing and intelligent. Also, in cases where this issue is important, the Government’s evidence in support of the voluntariness of the waiver should also include evidence to the effect that the accused, prior to making a statement, specifically acknowledged that he was aware that he was represented by an attorney. While we emphasize that we do not consider such evidence as mandatory, we do believe that the consideration of such evidence by the District Court is a stronger and, therefore, a more preferable basis upon which to conclude that the evidence in question should be received." (Emphasis added.)
Id. at 200. Relying on this language, the district court in this case found that there was no evidence that defendant was aware that Mr. Moon could represent him in this matter and considered this fact in reaching its conclusion that defendant’s waiver of his constitutional rights was not knowing and intelligent.
In view of this focus on the question of the validity of defendant's waiver, I fail to understand how the majority opinion (at pp. 1879 and 1380) can characterize the district court’s decision as resting on an application of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), a case never mentioned, much less relied on, by the district court. I can find nothing in the district court’s analysis which conflicts with the holdings of Hoffa v. United States, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and United States v. Osser, 483 F.2d 727, 733-734 (3d Cir.), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321 (1973), for those eases were concerned with defining the scope of the right to counsel, not the voluntariness of a waiver. Nor do I read the district court’s decision as embodying an exclusionary rule based on ethical considerations (see majority opinion at p. 1380). Although there is language in its oral opinion condemning the practice of taking a statement in the absence and without the knowledge of counsel, the district court’s reliance on Cobbs makes clear that this factor was considered merely as evidence on the issue of the validity of the waiver.
Finally, I cannot agree that the district court’s finding of an invalid Miranda waiver is clearly erroneous, “resting as it does on the single factor that the F.B.I. agents knew Crook was represented by an attorney in an unrelated case” (majority opinion at p. 1380). In the *1383first place, this assertion overlooks the three other factors relied on by the district court. See p. 1381 above. In particular, it ignores the finding that there is no evidence that defendant was aware that Mr. Moon could represent him in this case. Since Cobbs clearly places the burden on the Government to introduce evidence showing that prior to making a statement the accused “specifically acknowledged that he was aware that he was represented by an attorney,” the district court properly considered this factor, even if it were true, as the majority opinion states (at p. 1380), that “[n]o contention has been made that Crook was unaware, when he signed the waiver, that Moon represented him in connection with the Peoria case.” Furthermore, while it is literally correct that in considering the validity of the waiver, “[t]he relevant inquiry is not what the FBI agent knew but what Crook knew and understood,” (majority opinion at p. 1380), the evidentiary principles set forth in Cobbs for determining the vol-untariness of a waiver are applicable only where the court finds a custodial interrogation has occurred in the absence of and without the permission of counsel. Thus, the district court’s discussion of the FBI agent’s knowledge of the attorney-client relation between Mr. Moon and defendant and his failure to contact Mr. Moon was highly relevant, albeit indirectly, to its determination of the validity of defendant’s waiver.
In summary, I believe the district court’s decision in this case represents a conscientious and proper application of the above-quoted language in the Cobbs opinion. I recognize, of course, that this language is not, strictly speaking, part of the holding of that case. However, where, as in Cobbs, a panel of this court has attempted to lay down guidelines to assist in the resolution of a difficult and important constitutional issue, district courts are entitled to rely on them and should not be reversed for doing so without a full reconsideration, of the original decision by the entire court. Thus, I do not believe the policies previously followed by this court permit reversal without hearing of this case by all active judges. See F.R.App.P. 35(a) and paragraph M.l.b.(l) of Internal Operating Procedures (3d Cir.).