concurring.
I join parts I, II, and IIIA of the opinion of the court. I agree that there is sufficient evidence to support Tyler’s conviction under 18 U.S.C. § 1512(c)(l)(A)(C) and that the statements that Tyler made on July 9, 1992, should have been suppressed because the interrogating officers did not “scrupulously honor[ ]” Tyler’s right under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
I also agree that a remand is necessary with respect to Tyler’s July 20 statement, but I write separately to explain my understanding of the questions to be considered by the district court on remand. I find it helpful to discuss separately each of the discrete doctrines that are touched upon in part IIIB of the majority opinion.
I.
At the outset, I think that it is useful to identify exactly which arguments relating to the July 20 statement are before us. In his motion to suppress, Tyler said the following about the July 20 statement:
24. On July 20, 1992, eleven days after Mr.' Tyler’s arrest on murder and related charges, law enforcement officers proceeded to interrogate him at the Adams County Jail without the presence of counsel.
25. On July 20, 1992, despite the fact that Mr. Tyler had been through the preliminary arraignment and had been sitting in jail for eleven days, law enforcement officers failed to get a written waiver of Mr. Tyler’s Miranda rights.
26. It is submitted herein that Mr. Tyler’s statements were coerced and not knowingly, voluntarily, and intelligently made.
27. These statements were obtained in violation of Mr. Tyler’s constitutional rights. U.S. Const. Amend. V. and U.S. Const. Amend. VI.
28. In the alternative, Mr. Tyler would request that This Honorable Court suppress all statements made after the invocation of his right to remain silent on July 9, 1992, as fruits of the poisonous tree.
App. 37-38.
Thus, Tyler seems to have sought suppression of the July 20 statement on four separate grounds: (1) that the officers failed to *160obtain a written waiver of his Miranda rights, (2) that Tyler did not knowingly, voluntarily, and intelligently waive his Fifth Amendment right to remain silent, (3) that he did not knowingly, voluntarily, and intelligently waive his Sixth Amendment right to counsel, and (4) that the July 20 statement should have bee n suppressed under the “fruit of the poisonous tree” doctrine based on the improper questioning on July 9.
The district court denied Tyler’s motion to suppress the July 20 statement and wrote:
Defendant also seeks to suppress the statement he made to the authorities on July 20,1992. Essentially, Defendant contends that because the officers failed to obtain a written Miranda waiver, we must suppress the statement. However, Defendant has not cited, and our research has not disclosed, a single case which held that the failure to obtain a written Miranda waiver is grounds for suppression of a defendant’s statement where the defendant was verbally informed of his Miranda rights prior to making the statement. Moreover, there is nothing in the record to support an argument that Defendant’s waiver was not knowingly made.
Dist. Ct. Op. at 8-9. Accordingly, the court expressly rejected Tyler’s first argument (that a written Miranda waiver was needed), as well as his second and third arguments (that he did not knowingly, voluntarily, and intelligently waive his Fifth and Sixth Amendment rights). The court did not expressly address Tyler’s fourth argument (i.e., that the July 20 statement should have been suppressed as the fruit of a poisonous tree.)
The section of Tyler’s appellate brief dealing with the July 20 statement reads as follows:
On July 20,1992, two of the same troopers who had previously violated Tyler’s right to remain silent went to the prison where Tyler had been housed to interrogate him further. Tyler had been in prison for ten days, had been formally charged with criminal homicide and related offenses, and had been arraigned. Tyler’s right to an attorney had already attached. In fact, just one day later, on July 21,1992, an attorney was appointed to represent Tyler. (App.392).
The right to counsel “attaches at or after the initiation of adversary judicial proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Nelson v. Fulcomer, 911 F.2d 928, 941 (3rd Cir.1990); see also Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Presently, “adversarial judicial proceedings” had begun. Therefore, the Troopers violated Tyler’s sixth amendment right to counsel and the statement should have been suppressed.
Moreover’, this statement was the product of the initial illegalities that occurred on July 9th and 10th. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As “fruits of the poisonous tree” this statement should be suppressed.
Appellant’s Br. at 43-44. Consequently, Tyler’s appellate brief abandoned the first and second arguments made in his suppression motion, i.e. that a written Miranda waiver was necessary and that he did not knowingly, intelligently, and voluntarily waive his Fifth Amendment right to remain silent. Tyler’s brief instead relied entirely on the third and fourth arguments made in the district court (i.e. that he did not knowingly, intelligently, and voluntarily waive his Sixth Amendment right to counsel and that the July 20 statement should have been suppressed under the “fruit of the poisonous tree” doctrine). I will now discuss each of these arguments separately.
II.
A. I turn first to Tyler’s contention that he did not knowingly, voluntarily, and intelligently waive his Sixth Amendment right to counsel prior to providing the July 20 statement. If Tyler was given Miranda warnings and orally waived his Miranda rights prior to furnishing this statement, then Tyler’s argument is governed by Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). In that case, the defendant, after indictment, waived his Miranda
*161rights and then provided an incriminating statement without counsel present. The defendant argued that he had not made a “knowing and intelligent” waiver of his Sixth Amendment rights (id. at 292, 108 S.Ct. 2389), but the Supreme Court disagreed. The Court identified the “key inquiry” as follows: “Was the accused, who waived his Sixth Amendment rights during postin-dietment questioning, made sufficiently aware of his light to have counsel present during the questioning, and of the possible consequences of a decision to forgo the aid of counsel?” Id. at 292-93, 108 S.Ct. 2389. The Court noted that “the Miranda warnings given [the defendant] made him aware of his right to have counsel present during the questioning.” Id. at 293, 108 S.Ct. 2389. The Court further noted that “the Miranda warnings also served to make [the defendant] aware of the consequences of a decision by him to waive his Sixth Amendment rights during postindictment questioning.” Id. The Court then concluded that “[a]s a general matter ... an accused who is admonished with the warnings prescribed by this Court in Miranda ... has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.” Id. at 296, 108 S.Ct. 2389 (emphasis added) (footnote omitted). In a footnote, the Court pointed out that “[t]his does not mean, of course, that all Sixth Amendment challenges to the conduct of postin-dictment questioning will fail whenever the challenged practice would pass constitutional muster under Miranda.” Id. at 296 n. 9,108 S.Ct. 2389. The Court then referred to a situation in which “a suspect was not told that his lawyer was trying to reach him during questioning” and a situation in which an undercover police officer initiated a surreptitious conversation with an unindicted suspect. Id.
In light of Patterson, the first question that the district court should address on remand is whether Tyler was given Miranda warnings and waived his Miranda rights. Trooper Fenstermaeher and Trooper Graham testified that Tyler was given Miranda warnings and orally waived his rights. See App. 255, 298. No contrary evidence in the record has been called to our attention, and indeed Tyler’s briefs do not assert either that Miranda warnings were not administered or that Tyler did not orally waive his Miranda rights. Nevertheless, since the district court questioned the accuracy of other parts of the officers’ testimony, I agree that we should remand for the district court to make an explicit finding on this point. If the district court finds on the basis of the record of the suppression hearing that Tyler waived his Miranda rights, the court should then consider whether there are any unusual circumstances present that are comparable to those mentioned by the Supreme Court in footnote 9 of Patterson.
B. If the district court finds, on the other hand, that Tyler did not waive his Miranda rights, then Tyler’s Sixth Amendment argument should be analyzed under Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and related cases. Under these precedents, the test is whether all of the relevant circumstances show “an intentional relinquishment or abandonment of a known right or privilege.” Id. at 404, 97 S.Ct. 1232 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).
III.
The other argument that is properly before us is whether the July 20 statement must be suppressed under the “fruit of the poisonous tree” doctrine, which developed in Fourth Amendment cases. See e.g., Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (suppressing statements and tangible evidence resulting from an unconstitutional arrest). The Supreme Court addressed this question in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In that case, the defendant was arrested and made an incriminating statement without having been given Miranda warnings. He was later given such warnings, waived his Miranda rights, and executed a written confession. Relying on the “fruit of the poisonous tree” doctrine, the state appellate court held that the written confession had to be suppressed. *162The state court reasoned that, even though the written confession did not result from “actual compulsion,” “the coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed' his fate.” Oregon v. Elstad, 61 Or.App. 673, 658 P.2d 552, 554 (1983). The state court wrote that, because of the brief period separating the two incidents, “[t]he cat was sufficiently out of the bag to exert a coercive impact on [the] defendant’s later admissions.” Id. at 555.
The United States Supreme Court reversed, holding that the “fruit of the poisonous tree” doctrine does not apply when the “poisonous tree” consists of a violation of the prophylactic Miranda rule. The Court noted that if an initial confession is actually coerced, in violation of the Fifth Amendment itself, “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” 470 U.S. at 310, 105 S.Ct. 1285. But when an initial confession must be suppressed simply because it is obtained in violation of Miranda, “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314, 105 S.Ct. 1285.
Our court applied the teaching of Elstad in United States v. Johnson, 816 F.2d 918, 922-23 (3d Cir.1987). We wrote: “Absent constitutionally impermissible coercion in eliciting an initial confession, the administration of adequate Miranda warnings before a subsequent voluntary confession validates that confession despite the fact that the earlier confession is inadmissible because the- Miranda warnings that preceded it were inadequate.” Id. at 922. On that basis, we affirmed the conviction of the defendant, who had provided an initial oral confession that he claimed was obtained in violation of Miranda, as well as a subsequent written confession furnished after adequate Miranda warnings and a waiver. We held that even if the first, ■ oral confession had to be suppressed under Miranda, the second, written confession was nevertheless admissible, and that any error in admitting the oral statement at trial was harmless. Id. at 922-23.
In view of Elstad and Johnson, it is apparent that the defendant’s invocation of the Fourth Amendment “fruit of the poisonous tree” doctrine is inapposite, and I am fearful that confusion may result from the majority’s reference to “fruit of the poisonous tree” precedents such as Broten v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). See Maj. Op. at 156-57. The majority quotes Brown’s statement to the effect that Miranda warnings by themselves may not be sufficient to “attenuate the taint of an unconstitutional arrest.” Maj. Op. at 157 (quoting Brown 422 U.S. at 602, 95 S.Ct. 2254). Aid the majority observes that “[t]he same is true of an unconstitutionally obtained statement.” Maj. Op. at 157. However, while it is true, as Elstad itself pointed out (see 470 U.S. at 310, 105 S.Ct. 1285), that the taint of an Unconstitutionally obtained statement may not always be attenuated by Miranda warnings, this rule is inapplicable when the initial illegality consists of a violation of the Miranda prophylactic rule.
It is true that the type of Miranda violation in Elstad (questioning a suspect in custody without first providing Miranda warnings) is somewhat different from the type of Miranda violation that occurred here on July 9 (failing scrupulously to honor Tyler’s invocation of his right to remain silent by obtaining a Miranda waiver and questioning him shortly after he initially invoked that right). But I see no basis for concluding that Elstad is not equally applicable in this context. The violation that we have held occurred on July 9 was a type of Miranda violation, not a violation of any of Tyler’s constitutional rights. Indeed, Tyler’s brief did not seek suppression of the July 9 statement on constitutional grounds. See Appellant’s Br. at 37-43.
Applying Elstad and Johnson, the question to be addressed by the district court on remand is whether the July 20 statement was preceded by a valid Miranda waiver. If it was, then the Miranda violation on July 9 *163provides no ground for suppressing the July 20 statement.
IV.
Although Tyler has not presented this argument in so many words, the majority seems to interpret his submissions as raising an additional argument that it is related to, but conceptually distinct from the argument just discussed. This additional argument is that the July 20 statement must be suppressed under Michigan v. Mosley because, in questioning Tyler on July 20 after he had previously invoked his Miranda rights on July 9, the troopers did not “scrupulously honor[ ]” his Miranda rights. See Maj. Op. at 158-59 & n. 11. This argument is conceptually distinct from the Elstad argument addressed above because it is not dependent on the existence of a Miranda violation — or any other type of violation — on July 9: even if the police scrupulously follow Miranda in the initial questioning of a suspect, a Michigan v. Mosley violation may ensue if the defendant invokes his right to remain silent and the police seek to question him shortly thereafter. See Michigan v. Mosley, 423 U.S. at 102, 96 S.Ct. 321 (“To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned.”).
In addressing this Michigan v. Mosley issue on remand, the first question that the district court should address is whether Tyler or the troopers initiated the July 20 interview. Trooper Fenstermacher testified that it was his recollection that he and Trooper Graham went to the prison and spoke to Tyler because they received word from a prison guard that Tyler wanted to talk with them. App. 298, 321. Tyler contends that Fenstermacher’s testimony was “questionable at best” (Appellant’s Reply Br. at 12), but no contrary evidence in the record has been called to our attention. Whether Fenster-macher’s testimony is to be believed is a question of fact that the district court should resolve on remand based on the record of the suppression hearing and the court’s assessment of Fenstermacher’s credibility.
If the district court finds that Tyler initiated the July 20 interview, Michigan v. Mosley does not provide a basis for suppressing any statements that Tyler made on that day. On the other hand, if the district court finds that the troopers initiated the July 20 interview, the admissibility of the July 20 statement will turn on an application of the standard set out in Michigan v. Mosley and the subsequent related cases.
V.
If the district court concludes that the July 20 statement was admissible, then the district court must decide in the first instance whether the admission of the July 9 statement was harmless error. The two statements are substantively very similar, and while the earlier statement incriminated Tyler’s brother David to a somewhat greater degree than did the later statement, see Maj. Op. at 158, Tyler has not yet explained why the earlier statement was any more incriminating to him. Nevertheless, I agree with my colleagues that it is best that we not resolve this question at this time. Until the district court has made the findings necessary to decide whether the July 20 statement is itself admissible, we cannot be sure whether the harmless error issue will ever be reached. In addition, the trial court, which presumably has greater familiarity with the entire record of this case, has yet to make an initial ruling on the harmless error question, and it may be that further briefing and argumentation by counsel on this question at the district court level may provide additional illumination. Accordingly, I agree with my colleagues that we should remand this case to the district court for the findings and other determinations that I have mentioned and, if necessary, for a decision by the district court in the first instance as to whether the erroneous admission of the July 20 statement was harmless.