(dissenting).
Because I see the district court’s two salient fact findings as not being clearly erroneous, I conclude that this case is distinguishable in two significant respects from United States v. Miller, 589 F.2d 1117 (1st Cir. 1978). Because I see no persuasive reason to expand the scope of Miller, I would affirm the judgment below.
The first of the two findings is that when Melanson made his “volunteered” remarks, he “may reasonably have understood that his rights, as well as Cyr’s, were under consideration.” By “rights” I think it is clear from the use of the plural and from later remarks concerning the scope of Melanson’s understanding that the court was referring to both the right to have counsel appointed and the right to have bail. If indeed Melanson’s outburst could support-ably be found to have been stimulated by a desire to persuade the magistrate that he should have both counsel and bail, or by a view that these rights could be served only by speaking up, we arrive at the point where Melanson could assert certain constitutional rights only by sacrificing his right to remain silent.
This fact would have no legal significance if Melanson had waived his Fifth Amendment right not to have his own statements admitted against him at trial. But the district court’s second factual finding precludes a finding of waiver: the court found that one of the prerequisites to a valid waiver, an understanding by Melanson of his right to remain silent, was not proven by a preponderance of the evidence. If this finding is not clearly erroneous, then the question this case presents is whether a non-waived Fifth Amendment right is unduly burdened by the admission at trial of uncounselled statements made in furtherance of two other constitutional rights. Seen in this light, this case differs in two important respects from United States v. Miller, supra, a holding which in my view should not be lightly extended. For the reasons to be stated I think the findings should not be set aside.
First, I think many indications support the district court’s finding that Melanson may reasonably have understood that his own Sixth and Eighth Amendment rights were still at issue. The court acknowledges several factors: the bail hearing was conducted jointly for the two defendants; it shifted back and forth from one to the other earlier; no final decision had been reached in Melanson’s case; and the magistrate had merely told Melanson to “be seated for a minute”. I think other factors significantly buttressing the district court’s conclusion can be adduced as well: the hearing as a whole had focused intensively at numerous points on the merits of the government’s case; Cyr’s testimony imme*590diately preceding Melanson’s outburst had mentioned and arguably incriminated Melanson; Melanson’s own statements are entirely consistent with his defense, and indeed may very well be seen as directly exculpatory insofar as he denied seeing any blue lights on the police cars; Melanson’s assertion that he intended to aid Cyr is in no way inconsistent with the view that he spoke in an effort to further his own interests; and, finally, the magistrate continued to discuss, and indeed appears to have set, Melanson’s bail after his outburst, despite earlier talk of a delay until counsel was provided. In addition, of course, the district judge held a hearing on the suppression motion, at which he could among other things assess Melanson’s credibility and explore as he saw fit the facts relevant to an understanding of the events at the hearing. While I think the cumulative impact of these indicia is rather overwhelming, I need not go nearly so far; all I say here is that the court’s opinion seems vulnerable to me in saying that the finding below is clearly erroneous.
Second, I find considerable evidence to support the district court’s finding that the government did not prove by a preponderance of the evidence that Melanson understood “his right to remain silent until his attorney was present”. Melanson never affirmatively indicated any understanding of such a right, not to mention an intent to waive it; he testified that he had not knowingly waived any rights in signing a form the day before; the magistrate’s statement of Melanson’s rights was a terse, minimal outline, without elaboration; the statement included no specific discussion of bail hearings, and was immediately followed by questioning relevant to the bail determination; the magistrate’s questioning and the agent’s testimony went quickly and frequently to the events Melanson’s outburst later addressed; and more intangibly — and a matter on which the district court’s later opportunity to observe the witness might give it some advantage — Melanson seems possibly confused or intimidated throughout the hearing: not answering when first asked if he can afford a lawyer, then agreeing to have one in court in a few days, and finally saying he needed a court-appointed lawyer. I would concede that the extent of Melanson’s understanding as to his right to remain silent is a close question. But where, as the district court noted, the government bears a heavy burden in establishing waiver, where the trial court has found the government to have failed to carry such a burden, and where that court has observed the defendant whose credibility is centrally in issue, an appellate court needs heavy artillery to demonstrate a clearly erroneous finding.
Taking these facts to be as found by the district court, I see this case as different in two significant respects from Miller. First, while Melanson might reasonably have felt that his right to counsel as well as his right to bail was at stake at the time he made the statement in question, Miller already had counsel by the time the bail hearing began. 598 F.2d at 1135 n. 17. Thus Melanson was uncounselled at the time of his statements, and also could have thought his Sixth as well as Eighth Amendment rights jeopardized by a failure to speak. For these reasons Melanson’s lack of counsel is significant irrespective of whether his Sixth Amendment rights themselves were violated in this case. Second, we have here an explicit finding by the district court to the effect that Melanson did not intend to waive any rights, a finding supported by the evidence; in Miller, by contrast, the district court had made no finding as to waiver, and we rejected Miller’s argument that no waiver had been intended as “untenable”. 598 F.2d at 1135 n. 17. Thus Melanson’s Fifth Amendment rights are still very much at stake, and the question whether they would be unduly burdened is at issue in a way it could not be in Miller.
I think these distinctions significant — and I think the relevant constitutional and policy considerations suggest that they are at least enough to dictate that we not expand Miller to cover the conflict of rights involved here. Where a defendant, particularly one assisted by counsel, knowingly waives his right not to have his statement *591used against him at trial, no significant policies argue against allowing such use. Where, by contrast, the defendant is unassisted by counsel and no such knowing waiver has been tendered, a very different balance obtains. I have serious reservations as to whether the rather attenuated interest in law enforcement served by allowing the incriminating statements into evidence (i.e., a reliance on bail-hearing statements to obtain convictions) really is sufficient to offset the danger to the relatively palpable and immediate bail and counsel rights at stake. I recognize that a defendant’s own testimony may not be indispensable to a bail determination, but it does seem both that the facts of an incident are highly important to such a determination and that the only description of an alleged offense likely to reach a magistrate in the absence of a defendant’s testimony is that of the prosecution — both of which, of course, are true here. Indeed, barring the subsequent admissibility of defendant’s bail-hearing statements in a case such as this would allow a full and expeditious inquiry to take place at bail hearings without chilling the assertion of important rights at them. See United States v. Dohm, 597 F.2d 535, 544 (5th Cir. 1979) (Goldberg, J., dissenting); id., 618 F.2d 1169 (5th Cir. 1980) (en banc) (holding statements made at bail hearing inadmissible on ground that no knowing waiver of Fifth Amendment rights by defendant had been shown); Note, United States v. Dohm and the Compelled Election Between the Right to Remain Silent and the Right to Reasonable Bail, 94 Harv. L.Rev. 426 (1980); see generally Note, Resolving Tensions Between Constitutional Rights: Use Immunity in Concurrent or Related Proceedings, 76 Colum.L.Rev. 674 (1976).
Although these considerations do not induce me presently to disavow my own opinion for the court in Miller, they take away all taste for expanding it. The relative harmlessness of the statements at issue in this case and the arguably altruistic motivation of the defendant may make admissibility seem innocuous here, but I think such a perception clouds the potentially significant respect in which the court extends a limitation on important constitutional rights. I would hold that, at least where both Sixth and Eighth Amendment rights are arguably at stake, and where a knowing waiver of Fifth Amendment rights is not clearly proven, a defendant’s statements at a bail hearing may not be admitted into evidence against him at trial.
MEMORANDUM AND ORDER
In their Petition for Rehearing and Rehearing En Banc, counsel for appellee have pointed out certain factual inaccuracies in our opinion of March 23, 1981. There, we indicated that the initial hearing for Melanson and his codefendant, Edwina Cyr, began on the morning of Friday, February 8,1980, recessed, and then resumed in the afternoon, with bail being set for the defendants only at the conclusion of the afternoon portion of the proceedings. Counsel for appellee now point out that in actuality bail in the amount of $50,000 was set for Melanson at the end of the hearing on the morning of February 8. We are told that Melanson did not come back before the magistrate until the following Monday, February 11, at which time, with counsel present, bail was reviewed and reduced to $25,000. (Our description of the timing of the proceedings is apparently correct as to Cyr, who came back before the magistrate on the afternoon of Friday, February 8, with counsel present. Bail was then set for her at $10,000 without surety.)
As counsel recognize, the inaccuracies in our opinion are the result of incorrectly dated transcripts in the record on appeal. The record of the morning and afternoon hearings on February 8, as well as the later hearing on February 11, comprise a single transcript bearing the date February 8, 1980. A reading of the transcript does not expose the inaccuracy of that date. The problem is now pointed out to us for the first time.
The Court appreciates having these matters brought to our attention. However, they do not undermine the cornerstone of *592our opinion, which is the fact that Melanson’s “blurted out” remarks were knowingly volunteered in an effort to assist a codefendant and were not improperly elicited or uttered in response to a perceived need to assert his own rights.
We accordingly deny the Petition for Rehearing and make the following amendments to our opinion of March 23, 1981:
[Editor’s Note: Corrections were made in accordance with the order.]
COFFIN, Chief Judge, does not join in the Memorandum and Order. He would vote to grant the Petition for Rehearing.