Waterman and Feinberg, Circuit Judges, and Bartels, District Judge.*fn* Waterman, Circuit Judge (concurring).
This is an appeal from a judgment of the United States District Court for the Southern District of New York convicting the appellant, Raymond Anderson, after a jury trial, on two counts of violating 21 U.S.C. §§ 173 and 174.
Count 1 of the indictment charged Anderson with selling, on February 10, 1966, 32 grams of illegally imported heroin, and Count 2 with illegally concealing and facilitating, on December 5, 1966, the transportation of 1.5 grams of heroin.
The Government's evidence established the following: On February 10, 1966, about 10:30 P.M., Narcotics Agent Herman A. Scott and an informant from the Bureau of Narcotics under the surveillance of Agent Leo Thomas met Anderson at the Cafe Lounge, 1753 Amsterdam Avenue, New York, N. Y., and later the same evening, pursuant to Anderson's directions, met him again at Allan's Restaurant, 138th Street and 8th Avenue, New York, N. Y., where Agent Scott purchased from Anderson seven bundles of glassine packets of heroin for $600.
In the early evening of December 5, 1966, Narcotics Agents Thomas and Charles T. Collins, armed with a warrant, arrested Anderson while seated in a car near 141st Street and 7th Avenue, New York, N. Y. Incident to the arrest, they made a search of the car which uncovered fifteen glassine envelopes of heroin secreted under the front floor mat. Thereafter they placed Anderson in a Government vehicle and proceeded to the office of the Bureau of Narcotics at 90 Church Street, New York, on the way to which Anderson expressed a desire to cooperate. After arrival at 90 Church Street Anderson, upon questioning by Agent Thomas, made certain admissions identifying his chief supplier of heroin and also naming six or seven other narcotics violators in the Harlem area.
Before the trial Anderson moved to suppress the receipt in evidence of these admissions upon the ground that he had not been first advised in full of his constitutional rights. A voir dire hearing was held before Judge Bonsal outside of the presence of the jury, at which Agent Thomas related the warnings given to Anderson as follows:
"Q. Agent Thomas, would you tell us what conversation you had with the defendant Raymond Anderson in the fingerprint room at approximately 8 p.m. on the evening of December 5, 1966? A. Well, I told him again that I was a Federal narcotic agent and that he had been arrested for violation of the Federal narcotic laws and specifically the sale of narcotics to an undercover agent.
I then told him that he had a right to a lawyer at this time, and if he had one I would be glad to call the lawyer for him, that if he didn't have one that the Court would appoint him one.
I further stated that he had a right to remain perfectly silent and that anything he did say could be used against him at a later date in a court proceeding.
He said that he didn't want to speak to a lawyer and that he understood.
I then asked him, first, if he wanted anything to eat. He told me that he had a heart condition and that he had ulcers and that he had a very limited diet, and he named four or five foods. I asked him what he wanted. He said he wanted two vanilla malteds, which I asked Agent Collins to get for him.
Agent Collins then left."
Agent Collins, in whose presence the warnings were given partially but not fully, corroborated ...