Waterman, Friendly and Smith, Circuit Judges.
Appellant Haywood Williams and his codefendant Mills Skinner were tried under an indictment charging violations of the federal narcotics laws, 21 U.S.C. §§ 173-174. The first count charged that from April 1, 1963 forward Williams and Skinner conspired to and did receive, conceal, sell, and facilitate the transportation, concealment, and sale of approximately 17.70 grams of illegally imported heroin. The overt acts set forth as furthering this alleged conspiracy, and a substantive offense they were charged with in the second count, related to a transaction which occurred on April 26, 1963, involving the sale of approximately 17.70 grams of heroin hydrochloride to one John Coursey, an agent of the Federal Bureau of Narcotics, which was handed to Coursey by appellant. Two further counts in the four count indictment, counts three and four, charged appellant with illegal possession and transportation of.32 grams of illegally imported cocaine on November 5, 1963.
On December 1, 1964, after a five day trial before a judge sitting without a jury, Williams and his codefendant were found guilty as charged on counts one and two, and Williams, as a second offender, was sentenced to serve a term of 10 years. He was acquitted on counts three and four. Though both defendants timely filed notices of appeal, the appeal by Williams is the only one thus far brought forward, and only his rights are considered here.
Upon appeal Williams maintains that certain inculpatory statements he made to federal officers after his arrest and before he was brought before the U.S. Commissioner were erroneously admitted into evidence at his trial because he was denied the assistance of counsel and thus deprived of rights secured to him under the Sixth Amendment to the Constitution. He further claims that the entire testimony of Narcotics Agent Kreppein concerning the substance of the interviews the agent had with appellant should be struck pursuant to subsection (d) of the Jencks Act, 18 U.S.C. § 3500(d), because Kreppein could not produce at trial the informal notes he took while eliciting the statements from appellant.*fn1
We turn first to appellant's contention that the admission at trial of certain post-arrest, prearraignment statements made by him to various federal officers who failed to warn him of his right to counsel violated his Sixth Amendment rights as explicated by the Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). Recently the decisions of the Court in Escobedo and other cognate cases dealing with the Sixth Amendment right to counsel have been exhaustively interpreted and applied in several cases by our court sitting in banc.*fn2 E.g., United States ex rel. Stovall v. Denno, 355 F.2d 731 (2 Cir. 1966); United States v. Drummond, 354 F.2d 132 (2 Cir. 1965); United States v. Cone, 354 F.2d 119 (2 Cir. 1965); United States v. Robinson, 354 F.2d 109 (2 Cir. 1965).*fn3 We of the present panel, irrespective of our individual positions expressed in our separate opinions in these in banc cases, believe that, for the time being, we should accept these recent pronouncements by a majority of our court on the "right to counsel" issue. Cf. United States v. Kelly, 349 F.2d 720, 778 (2 Cir. 1965). We reserve to ourselves our several approaches to this issue,*fn4 and await further guidance from the Supreme Court.*fn5
Appellant was arrested by Narcotics Agents Kreppein and Bailey at the corner of 129th Street and Seventh Avenue in Manhattan at 3 A.M. on November 5, 1963. The arrest was for the sale of the 17.70 grams of heroin made to Agent Coursey on April 26, 1963.
When arrested Williams was immediately informed by Agent Kreppein that he "was under arrest in violation of the federal narcotic laws and anything he said could be used against him in one straight blush."*fn6 The Government concedes that he was not advised that he was entitled to the assistance of counsel before speaking further with the federal agents. A ten to fifteen minute conversation between the agents and appellant then ensued while the three sat together in the front seat of appellant's automobile. During the course of this conversation, Bailey, who was seated on the right or passenger side of the front seat, discovered several cocaine capsules on the floor of the automobile. Kreppein testified that appellant at that time admitted the cocaine was his.*fn7 Kreppein also testified that after the cocaine had been found appellant stated "that he wished to cooperate with us in initiating further cases involving narcotic violators * * * if we would forget about the arrest." When the agents informed appellant that they could not overlook the arrest appellant promptly withdrew his offer of cooperation. Appellant made no request for counsel during the course of his scene-of-arrest conversation. He was then driven to the Federal House of Detention on West Street in lower Manhattan where he was confined until about 9:30 A.M. on that same day.
At approximately 9:30 A.M. Kreppein took Williams from the House of Detention to the office of the Narcotics Bureau in Manhattan "for processing." Kreppein testified that a second conversation took place there and that appellant initiated this second conversation by asserting he had never sold narcotics. Kreppein then made it clear to appellant that appellant was not being arrested for possessing the cocaine he had admitted he owned but for an April 26 sale of heroin, and that the narcotics agents were well acquainted with many of the circumstances surrounding that sale. Some fifteen to twenty minutes later, appellant, while continuing to deny that he had delivered any narcotics to the federal undercover agent, Coursey, to whom the narcotics had been sold that day, admitted that he had negotiated with Coursey and that he had accepted the money for the heroin prior to its delivery to Coursey by another. Appellant was not informed at any point during this conversation that he had a right to consult with counsel.
After appellant had been fingerprinted and photographed at the offices of the Narcotics Bureau Kreppein took him to the United States Courthouse in Foley Square where the U.S. Commissioner had his office. Upon arrival at the courthouse, however, appellant was first taken to the office of Martin R. Gold, an Assistant United States Attorney. Gold asked appellant 67 questions which, with the answers that were given by appellant, were taken down and transcribed by a stenographer and were introduced into evidence by the Government at appellant's trial, as Government's Exhibit 22A.*fn8
In addition to appellant, his interrogator, and the stenographer, Agent Kreppein and a second narcotics agent were present. Gold's interrogation began as follows:
Q. Your name is Haywood Williams? A. Yes.
Q. Mr. Williams, my name is Martin Gold, and I am an Assistant United States Attorney. Do you ...