Waterman, Moore and Hays, Circuit Judges. Waterman, Circuit Judge (dissenting from the majority's opinion, but concurring in the result upon a different ground).
Appellant was convicted on two counts of selling heroin in violation of 21 U.S.C. §§ 173 and 174 after a trial before the Honorable Irving Ben Cooper and a jury.*fn1 Concurrent sentences of five years inprisonment on each count were imposed.
Appellant's principal argument on this appeal is that his pre-arraignment statement to an assistant United States attorney should not have been admitted into evidence because the warnings he was given were inadequate under the standards set forth in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We hold that the warnings were adequate and affirm the judgment.
On February 28, 1966 appellant was arrested and placed in the Federal House of Detention. The next morning he was taken to the office of an assistant United States attorney for questioning. Before any effort was made to elicit information about the crime charged, the following colloquy took place:
"Q. * * * Do you understand what the charge is? A. Yes.
Q. I want to advise you that you have a right to an attorney and to consult with a lawyer at this time. Do you have a lawyer? A. No, I don't have a lawyer.
Q. Do you have the money to hire a lawyer? A. No.
Q. The Commissioner who will fix bail in your case will also tell you about the steps that can be taken to assign a lawyer to you if you don't have the money to hire one. Is there anyone you would like to talk to now to get legal advice or to find out whether one can be contacted? A. There would be no way to reach them -- just my wife.
Q. * * * I also want you to know that you don't have to answer any of the questions that I am going to ask you. You may remain silent and not say anything. Anything you do say may be used against you at a later time as evidence. Do you understand everything I have explained to you? A. Yes.
Q. If you wish to remain silent, you can do so and your silence will not be held against you for any reason. Do you understand that? A. Yes.
Q. How far did you get in school? A. As far as the 11th grade.
Q. You have not had any difficulty understanding these things that I have explained then? A. No."
Appellant then admitted that he had formerly used narcotics, that he had sold narcotics "a couple of times," and that he had met John Coursey, the agent to whom he was accused of selling heroin. However, ...