*3 arrest, Immediately upon Clements was in- CHAPMAN, Before ERVIN and Circuit formed that he would be shown the warrant Judges, BRYAN, and Senior Circuit Judge. for his arrest when brought he was before a ERVIN, Judge: Circuit magistrate. While being transported to the police station, local agent an ATF informed Calvin Demonsier Clements was convict- Clements of his rights under Miranda v. by jury ed of purchasing despite a firearm Arizona, previous felony state conviction and (1966).1 L.Ed.2d 694 agent The then asked making false statements on his application Clements if he rights, understood these firearm, for the in violation of 18 U.S.C. Clements responded the affirmative. 922(a)(6) 922(h)(l)(1982). ap- On §§ testified, The agent later somewhat hesi- peal, Clements contends that his sixth that he also tantly, amendment to the told Clements of the assistance of coun- sel was violated by pending the admission of an indictment either at the time of uncounseled confession he shortly made af- arrest or while in the car.2 Clements flatly explanation purpose 1. The consulting lawyer. of Clements’ Miranda provided was read verbatim from a you may your right card waive advice of coun- agent by the ATF: your right you sel and to remain silent and you any questions, my may questions Before we ask it is answer or make a statement duty you your rights. to advise have consulting you You lawyer without if so desire. say Anything you to remain silent. against you can be During used agent Court or other cross-examination of the ATF proceedings. You have the to consult hearing defense counsel at the on Clements’ attorney making any before statement or motion, suppression following colloquy oc- answering any question you may have curred: you during questioning. him with you Did tell him that he had been indict- Q. attorney appointed by You have an grand jury? ed represent you you Court to if cannot afford sir, A. Yes I believe I did. you or otherwise obtain one. If decide to you When did tell him that? Q. questions answer now with or without a law- A. I believe after I advised that we had a yer, you stop question- still have the federal arrest warrant. ing stop questioning at time or for the trial, At count of the indict- handgun of the indictment denied that he learned was dismissed on Clements’ motion. coming magistrate.3 ment before prior evidence tended to show government’s The station, the arriving police After at the rifle purchased had Clements ATP again read Clements the agent ATF had during falsely found the search and then agreed Miranda formula. Clements past “no” to a about his question answered state- inculpatory, tape-recorded make an on a standard form he filled criminal record to a search of his ment. He also consented while making purchase. jury out officers for home law enforcement counts, guilty remaining found him of both in the indict- the .22 caliber rifle named July was set for sentencing hearing and the consent, ment. Armed was informed July 28. On rifle, a state search warrant for presentence report letter that the was now engaged lengthy officers in a examination *4 hearing available to him. At the Clements home, a eventually discovering of Clements’ continuance for the purpose moved for a as well as the rifle. The handgun 9mm obtaining affidavits from distant witnesses government subsequently obtained a su- the report. to rebut certain statements in perseding charging indictment Clements motion, The court denied Clements’ struck illegal receipt handgun of the as well report, some items from the and sentenced as the rifle. to two five year Clements consecutive suppress Clements moved before trial to terms. discov- his confession and the two firearms during ered the search. The district court II.

ruled the search warrant invalid because a search outside by judge issued a state contends that the district court Clements jurisdiction, the latter’s but found that finding knowingly erred in that he had consented to a search of his Clements amendment intelligently waived his sixth the The court expressly home for rifle. counsel, to right opposed his fifth they the officers’ claim that dis- disbelieved right. amendment Miranda Clements’ the the ri- handgun finding covered before that, according view it critical to his is fle, which was view. apparently plain facts, version of the he was not informed The court therefore admitted the rifle and before that he was under indictment suppressed handgun. the The court also a asked to make statement. was extreme- although found Clements shift, guarantees The sixth amendment working night tired from a he was ly officers, prosecution the accused in a criminal not tricked or overborne have the assistance of counsel for right and that his waiver of counsel and his con- “to States, v. United were and volun- his defense.” In Massiah intelligently fession made 201, 84 12 L.Ed.2d 246 judge The district stated that tarily. held that this (1964), Supreme or was informed of Court whether not Clements upon confes- attaches an individual’s indict prior making right his indictment his right and that the is importance,” by grand jury sion was not “of critical and ment are elicited from to resolve the violated when admissions discrepancy declined between absence of counsel. person the issue and that an indicted in the testimony on clear, therefore, It is that Clements’ sixth agent. of the No, questioned suppression was at the A. sir. hearing by attorney: any give you copy of them Did Q. Clements, any indictment? Mr. at time between Q. No, you initially time that made contact with A. sir. you April any you men who arrested an indict- Did tell what them Q. tape recording was the time at which this are ment means and what ramifications made, agents did of the officers or person? for a you you inform had been indict- No, A. sir. ed? thermore, already had attached at with the right cooperation police may amendment individual; the time of his arrest. may benefit never be- all, come a “defendant” at be guaranteed by to counsel right The charged with a lesser crime than if he re- analytically is distinct the sixth amendment mains the other unhelpful. silent On counsel mandated Mi right from hand, once an indictment has been re- Arizona, 384 randa turned, police questionee occupy both In order to 16 L.Ed.2d quite government different stances. The privilege fifth amendment secure self-incrimination, has the now-de- against against Constitution assembled its case requires as construed the Miranda Court fendant, at least to the satisfaction of safeguards, including procedural certain police questioning Further grand jury. during of counsel right to the assistance legitimate investigation, species but The sixth amend interrogation. custodial meanwhile, defendant, discovery.4 counsel, hand, ment on the other the full procedural has been vested with privilege of independent constitutional target affords the Constitution Rhode significance. fundamental Is prosecutorial power. He government’s Innis, 300 n. land v. gain talking: has much less to from it is 1689 n. beginning definition too late to avert the (policies underlying coun prosecution. criminal quite sel and sixth amendment “are The Miranda to counsel is re *5 Williams, distinct”); Brewer v. 430 U.S. reasons, we 387, 397, 1232, 1238, quired empirical because 97 51 L.Ed.2d 424 S.Ct. (1977) (Miranda pro and sixth amendment realities of a recognize psychological rights). tect different difficulty and the interrogation custodial confused, person may ex legally-unlearned Opinions vary about what differences this perience preserving the constitutional make. analytical distinction should while privilege against self-incrimination believe, view, is that courts better we interrogation. custodial con should, undergoing among things, apply other stricter trast, right claims to counsel prosecution standard of review to sixth amendment that counsel was waived in sixth amend- government is a constitutional constraint in Miranda required ment cases than is person with a forbidding action interaction Satterfield, cases. v. 558 See United States been against prosecution whom criminal has 655, (2d Cir.1976); F.2d 657 United States opportunity unless the to obtain initiated 236, Brown, (5th Cir.1978) v. 240 569 F.2d counsel has been afforded.5 J., (Simpson, dissenting). The basis for Cir. Waiver of the sixth amendment this stricter standard has to do with the from right may presumed to counsel not be underlying different Miranda and policies record, only found when may a silent but be sixth amendment alluded Su- “that an accused was the evidence shows In a preme pure Court in Innis. and under intelligently offered counsel but situation, right the sixth amendment where Carnley the offer.” v. standing^ rejected has are in- play, police not come into 890, 506, 516, 884, Cochran, 82 S.Ct. 369 U.S. of investi- proper volved in their business amend (1962). Since the sixth gating person questioned crime. The of the defend questioning ment forbids process, is not a criminal “defendant” in the of counsel unless the ant in the absence extraordinary safeguards with all of the “it takes privilege, Fur- defendant waives that Constitution affords such individuals. course, interrogation unnecessary question, propriety 5. “Proof of formal is 4. We do not of suspected protection investigation the sixth amend invoke the of of continued of other activity is tantamount But ment. A conversation criminal of an indicted defendant. Henry v. United interrogation investigation is sufficient.” such abide the con must States, 544, (4th Cir.1978) See United F.2d 547-48 straints of the 590 sixth amendment. aff’d, J., Anderson, 1192, concurring), (5th (Butzner, 447 U.S. States v. 1196 Cir. 523 F.2d 264, 2183, (1980). 1975). 115 65 L.Ed.2d 100 S.Ct. Cir.

1035 of informer in defend- question (government plant answer to a prisoner’s more than amendment). sixth right question infringed waive his not to have the ant’s cell Innis, at place.” appeal, in the first Most for this the de- importantly asked 14, (Stevens, n. 14 n. 100 at 1696 must know what constitutional 314 S.Ct. fendant J., reviewing a claim dissenting). waiving, possess The court or she is some right he reasonable “indulge every of waiver should of that understanding meaning basic Zerbst, waiver.” Johnson v. presumption against Johnson v. 304 right. generally See Zerbst, 458, 464, 1019, 58 1019, 1023, 58 82 L.Ed. U.S. 1023, 1461 There need not 82 L.Ed. (1938) (valid waiver of constitutional 1461 be, however, explicit statement of waiv- relin- “ordinarily an intentional v. er the defendant. Cf. North Carolina privilege”). of a known or quishment Butler, 373 n. to the busi- approach There is no uniform (1979) (Miranda n. 60 L.Ed.2d determining ness of whether counsel has case) (“our today to counsel decision in the been waived. Courts Second Circuit may that a court find an merely ... follow the strictest rule: intelligent understanding rejection judicial proceedings are initiated [A]fter counsel in situations where the defendant attaches, and the to counsel a de- much”) (emphasis did not state as expressly fendant in a criminal case effective- counsel original). finding A of waiver of ly only waive the assistance counsel simple cannot be made on the basis of a after constitutional being advised inquiry past question into events: “the officer, rights by judicial duty whose it facts, historical question waiver [is] the content explain is to requires ‘application one which ... but significance of those and of principles constitutional to the facts as ” charges lodged against him. Brewer, found.’ 430 U.S. at Giacalone, F.Supp. v. United States (citation omitted). at 1241 also Cahill (S.D.N.Y.1980). A “failure to advise Rushen, Cir.1982) [an (9th 678 F.2d him, against of the indictment (question accused] of waiver is one of constitutional *6 to ascertain that he steps to take reasonable law, fact). not of indictment, a find precludes knows of the prosecution For the to demonstrate knowingly, volun ing that defendant] [the waiver, allowing it must evidence waived his sixth intelligently and tarily the court to find several interlocked but v. Carvey amendment to counsel.” elements. In a recent Miranda case distinct LeFevre, 19, (2d Cir.1979), 22 cert. 611 F.2d Supreme the cautioned that “waivers Court 1858, denied, 100 64 446 U.S. only voluntary, of counsel must not be but However, if the 276 even L.Ed.2d intelli knowing must also constitute a and the accused is informed of indictment gent relinquishment or abandonment warnings, Miranda the given well as Second known or Edwards v. Ari privilege.” find waiver: may still refuse to Circuit zona, 477, 482, 101 451 merely informing this case can de- “nor in (1981). The same is true a his indictment be fendant of the fact of fortiori of waivers of the sixth amendment substitute for a satisfactory considered a A valid waiver of sixth amendment right. of the explicit explanation clear and Sixth of the voluntary counsel must be the act giving up.” defendant rights Amendment coercion, psy physical defendant free Mohabir, v. 624 F.2d United States v. chological, subtle or overt. Brewer See Circuit, First while (2d Cir.1980). The 1150 Williams, 387, 97 51 adopt per whether to the refusing to decide (1977) 424 officer’s success (police L.Ed.2d the accused be told of that requirement se attempt exploit religious ful to defendant’s that “an unre- indictment, has indicated amendment). The scruples infringed sixth significant be if might indictment vealed that her ac defendant must realize his or from precludes of it ignorance privi tions are a waiver of a constitutional position his being appraise able to lege. Henry, United v. States intelligent waiv- making an therefore from L.Ed.2d 115 of the indict- Payton, prior 615 F.2d to his informed States v. er.” United Cir.1980). ment, other end (1st At the er- their admission was not harmless repeatedly has spectrum, the Fifth Circuit Therefore, we the case ror. must remand rights waiver of amendment found a sixth court of determination the district given was Miranda where the defendant' that when was first informed he Clements in some warnings and indicated fashion had been indicted. See, warnings. he understood those that Watkins, v. 681 F.2d e.g., Jordan III. (5th Cir.1982) (defendant responded affirm- when if he his atively asked understood that the district contends Brown, rights); Miranda United States fatally defec- judge’s jury instructions were (5th Cir.1978) (en banc) (de- 569 F.2d 236 jury not they require tive because did form). waiver signed fendant Miranda “willfully” a false state- find that he made with agree We cannot the Fifth he when ment on the form filled out he The Miranda approach. Circuit’s and sixth rifle, and did not bought they because counsel are fungi amendment not find he knew his require jury that ble; safeguards waiver does illegal. of the rifle was Clem- possession imply necessarily not the individual is the inclusion of argument ents bases his on forego willing lawyer’s assistance dur “willfully” “knowingly” words ing questioning prosecution if a criminal indictment, proc- due alleged an already has On commenced. the other requirement ess that all offenses in- status hand, we do think that enforcement of clude a criminal scienter element. Clem- requires adoption sixth amendment ents cites two decisions this court Circuit’s rule that Second waiver be position. claims In United support an preceded by explanation of amend Behenna, (4th States v. F.2d 573 Cir. guarantee judicial ment’s of counsel 1977), charged the defendant was with officer. we hold that order for misstating his state resi “knowingly” a waiver of sixth amendment counsel purchase dence with the of a in connection already individual who indicted has been This court reversed his conviction firearm. meet requirements constitutional lacking while that an observing indictment knowledge comprehension, that individ re “knowingly” not have word would ual at a minimum must informed that he be In quired that result. Id. at 575. United indictment, or she is under unless the indi (4th Hedgecoe, States v. F.2d Cir. has actual knowledge vidual or constructive 1970), charged the defendant was of the indictment.6 light of this conclu falsely that he was not signing statement sion, we cannot on the present determine *7 the Control prohibited by Omnibus Crimes validity record the of As Clements’ waiver. acquir- Act of and Safe 1968 from Streets above, we noted the district court declined reversed, in court Be- ing gun. This to resolve the evidentiary conflict between henna, trial had not re- because the court Clements’ and that of ATF testimony the quired jury the to find that the defendant agent. If Clements’ confession his con making sent to a search the rifle were knew he was a false statement. obtained holding requirement police This with that in- 6. does not conflict our deci inconsistent with Hines, sion in United States v. F.2d 132 of of indictment form an individual the fact Cir.1979), denied, (4th Payton, rt. See prior questioning person. that ce (1980). inculpa- (Butler rule 615 F.2d at 924 and Second Circuit tory statement at issue in Hines was made after not in- sixth amendment counsel waiver of arrest but before indictment. Nor is hold- our consistent) (by implication). ing present appeal precluded, in the as the suggestion, Contrary this to the dissent’s maintains, government Supreme the Court’s per holding se ordain a blanket rule. does not decision, merely rejected Butler which the view assume, deciding, that a different We without proper that waiver can inferred on never be interrogating if the officer result follow would Butler, record. 441 U.S. at n. were of the indictment. unaware holding way at 1757 n. This in no CHAPMAN, readily

These decisions are dis Circuit Judge, concurring part dissenting part: In conceiva both cases it was tinguishable. statement, that the defendant’s while ble dissent from respectfully portion I that of untrue, was made to lie. without the intent opinion majority holding the that this case moved In Behenna defendant had to the district must be remanded court for only purchas Carolina before shortly South of determination whether Clements’ confes- ing gun yet and had not established sion and to a search for the rifle his consent residence there. In knowl

legal Hedgecoe, prior were to his informed obtained of the contents of a federal edge specific of the indictment. was required correctly statute to answer signed. which the In the form defendant I case, hand, on the other Clem discussing the new Before which the rule signed a statement that representing ents opinion establishes on waiver of a majority he had never been convicted of a crime amendment right defendant’s sixth to coun- by over a punishable year’s imprisonment, sel, that, point I out even if the would although knew that he had been convict introduction Clements’ confession such a crime for over imprisoned ed of counsel, the rifle violated Virginia. year Commonwealth of introduction of this evidence was harmless Furthermore, did in judge district fact both the rifle and error because the confes- the jury specific instruct on willfulness and simply sion cumulative of evi- were other Finally, general intent. there is no consti In guilt. light dence of the substantial requirement that tutional definition guilt evidence of independent defendant’s incorporate a crime the element criminal rifle, and the I confession would hold jury scienter. There was no error in the “beyond it is clear a reasonable doubt instructions. complains that the errors defendant [the of] to the did not contribute verdict obtained.” IV. California, Chapman v. judge’s Clements attacks the district re- 17 L.Ed.2d grant him a to prepare fusal continuance establish that a defendant has order to to the That presentence report. rebuttal firearm in violation of 18 “received” a decision was within the district dis- judge’s (1982), 922(h)(1) necessary it is not U.S.C. § this court presented cretion. Clements has actually pos- to show that defendant no how explanation concrete in violation of that sessed a firearm statute. judge’s decision was an abuse of that discre- violated showing The statute is tion. possession took of or know- the firearm. ingly accepted United States V. Turnmire, (4th Cir.1978). 574 F.2d 1156 findWe no error in the district court’s Accordingly, purchase of the rifle instructions or in of Clem- jury its denial receipt acceptance of a fire- constituted ents’ motion for a of his sen- continuance subsequent posses- of his independent arm tencing hearing. we remand the purchase sion of the firearm. Clements’ for a factual case determination testimony established by the rifle was court of was in- district when Clements *8 from the of a sales clerk store where the formed had been indicted. If of by and the purchased testimony rifle was to a inculpatory statements and his consent Further, and his wife. both the defendant prior for the to given search rifle were Tobacco, Alcohol, (ATF) and Firearms the indictment, confession told of the the the which defendant was re- Form 4473 suppressed, and the rifle must be Clem- complete before the quired purchasing to granted ents new trial.7 which signature rifle was con- contained the govern- defendant REMANDED. nected to the Morrison, 361, 365, 66 L.Ed.2d 564 7. See United States v. U.S. 101 449 1038 incrimination,” Jersey, Johnson v. New This evidence handwriting expert.

merit’s 1778, 1772, 16 of receipt to show 729 adequate than was more [86 that the rifle was (1966), the evidence it is clear that the rifle and L.Ed.2d 882] years home two in the defendant’s found here informed Clements warnings given contribut- could not have purchase after its counsel, to right amendment of sixth convic- to Clements’ slightly than ed more to right fifth amendment as well as his of the illegal receipt charge on the tion against self incrimination. protection rifle. Clements, 82-00016- v. No. United States independent was also substantial There 13, 1982). E(H) (N.D.W.Va., Aug. filed other on the to convict Clements evidence no that “there is majority recognizes The that him charged indictment count of the to the business of deter- approach uniform on ATF a false statement making waived.” mining whether counsel has been above, the defend- Form 4473. As stated that Appeal at 11. The Ante Courts the form was connected signature ant’s on tak- the issue have directly have addressed government’s handwrit- majority opin- The varying approaches. en addition, testimony ing expert. reviewing job ion does commendable that Clements the sales clerk established circuits and I do the decisions of the other pres- the form in her completed read and interpretations -with its disagree ence. disagree I do those decisions. it to draw. with the conclusion seeks II to reach unnecessary think it is Though I so far gone Circuit has Only Second sixth issue of whether Clements’ that adopt per requiring as to se rule to counsel was violated right amendment pending informed of a indict defendant be of the and his confes- the introduction rifle an “intentional ment before he can exercise sion, treatment of that issue majority’s abandonment,” Johnson relinquishment forces me to dissent. Zerbst, 458, 464, 58 S.Ct. v. per establishes a se rule majority The (1938), of his sixth 82 L.Ed. that a never waive his to counsel. United States amendment subsequent to indictment unless counsel Mohabir, (2d Cir. v. 624 F.2d the defendant has been informed that he is Circuit, 1980).1 The Fifth other or has actual or construc- under indictment hand, approach a case case has taken knowledge tive indictment. This all the circumstances of that evaluates assumption rule rests on the that the warn- a de- whether particular case determine Arizona, ings by Miranda v. required of his possessed knowledge fendant that intentionally relinquished counsel and to inform a are insufficient defend- Watkins, F.2d See, v. e.g. Jordan right. ant to coun- of his sixth amendment 1067, (5th Cir.1982); United States assumption. sel. I this The accept cannot Brown, Cir.1978) (en (5th 569 F.2d the district court in its order language of banc). suppress motion to denying Clements’ approach I think the Fifth Circuit’s instructive: majority characterizes more reasoned. first When Clements was arrested decisions in Jordan the Fifth Circuit inter- again beginning taped at the amend- finding waivers of sixth Brown as view, the now familiar Mi- given he was the fact solely ment from “prime warnings. Although randa given warnings defendants were guarantee of Miranda was to full purpose understanding of those indicated an privilege against effectuation of the self- rule, fact, during post goes presence indictment of counsel 1. The Second Circuit further interrogation, a federal requirement he must be taken before than be the defendant right explained pending requires judicial officer to have the informed of a indictment. It Mohabir, that, F.2d prosecu- him. United States v. before a defendant in a federal *9 (2d 1980). right tion can waive his sixth amendment to Cir. warnings. Although warnings Miranda to response Special Agent Webb’s state- certainly played important part an in each he ment that had warrant for Clements’ case, findings of waiver did not rest arrest for violations of federal firearms familiar solely warnings. use of those laws, thought Clements stated that he his Jordan, twenty-nine In was charge arrest involved a firearm began old, the educational years possessed equiva- discussing question, the firearm a Mar- college, lent of two of and had the years lin .22 rifle.2 stopped Clements was at this experience of seven in “the service” years Webb point by Special Agent and informed in personal management and air traffic con- rights of his Miranda and he that responded given trol. He was Miranda warnings at he rights. gave understood those Before he least four times before he made the chal- second, statement, taped version of his lenged responded “Yes, confession and he I again Clements was informed of his Miran- do” when asked after the last if warning rights again responded da and he that he understood his rights. Finally, there was rights. understood those Clements was not no evidence that the defendant’s statement questioned period detained or such a of was influenced an atmosphere of induce- time that give any would rise to inference ment and coercion. 681 F.2d at 1074. In improper of coercion and there was no other Brown, the defendant was a college gradu- Only forty evidence of coercion. minutes ate who elementary had worked an elapsed between time Clements was ar- school teacher for thirteen years. taped rested and the time his interview days challenged before she made the state- agents with was completed. ATF ment, she rights by had been advised of her and most Finally, importantly, a consider- security guard and a city policeman ATF portion able of the standard Miranda charges. connection with related state Im- warnings form which was read to Clements statement, mediately before she made the to questioning explana- before is devoted an warnings Miranda were to her read and she right tion of a defendant’s to counsel.3 read and signed express rights waiver of does not that his waiver argue form. The interrogation took in a place unwillingly response was made or in to any public corridor shortly before the defend- kind He that trickery. dispute does ant’s preliminary hearing on the related right attorney he knew of his to consult an state charges and there was no evidence of have an questioning attorney before any improper inducement or coercion. 569 His present during questioning. only argu- F.2d at 238-239. knowledge ment is that indictment Clements, confession, at the time of his was to make his waiver intention- necessary year was old electrical maintenance knowing meaning al and within the school, foreman completed high who had Johnson v. Zerbst. nine hours of college credits and various electronics courses and seminars. Before he On case, the facts of this it cannot be said given was any warnings and in knowledge of the indictment was nec- suggest against you I do not mean to these some- ean be used in court or other “spontaneous” given you proceedings; right what statements before have consult an attorney making any Clements was advised of his Miranda before statement or an- any differently any you may swering questions; should be treated from the him have receiving you during questioning; you statements Clements made after Mi- warnings. randa attorney appointed by these statements have an the Court do offer represent you you additional evidence of the lack of in- if cannot or afford oth- trickery surrounding one; ducement you or if erwise obtain decide to answer statement and of the questions lawyer, you intentional nature of or now with without a right Clements’ waiver stop of his sixth amendment questioning still have the at stop counsel. questioning purpose time for the or however, consulting lawyer; you may warnings 3. The text of the is as follows: your waive the to advice counsel and silent, you any questions, my you may Before we ask it is to remain answer duty you your rights. questions to advise make a You have statement without con- silent; say lawyer you anything you sulting to remain if so desire. *10 essary in order Clements’ waiver to be

knowing Although and intentional. no de- Nancy BLY, Wayne L. Administratrix of Supreme precludes cision of the Court Bly, deceased, Appellee, A. per adopted by se rule it majority, is equally true that such a rule is not required COMPANY, OTIS ELEVATOR a New by any Supreme Court decision.4 Only the Jersey Corporation, Appellant. Second Circuit has seen fit to se adopt per No. 82-1430. Although rule.5 the majority disavows or- ante daining rule, a per se 6, 1036 n. I see United of Appeals, States Court no it per difference what has done and a Fourth Circuit. se rule where the investigating officer 13, Argued Jan. 1983. aware of the indictment. If the purpose 4, Aug. Decided 1983. majority’s is to ruling protect person indictment, of a why under should

there be a difference as to whether

interrogating officer knew or did not know distinction, the indictment? If there is a

it the purpose indicates of the rule is to

punish officer protect and not

rights of the accused.

I think the rule contributes no further

protection to the sixth amendment rights of

criminal defendants and that we should re-

frain from adopting appears what to be an

inflexible rule. Supreme approach which, dicta, although Court’s to waiver of a be indicative of the approach per defendant’s sixth amendment to have court’s to the use of se rules to present during post-indictment questions counsel interro- decide of waiver of constitutional gation Williams, rights: is illustrated Brewer v. 387, 1232, (1977). 97 S.Ct. 51 L.Ed.2d 424 question This is not the first criminal case to Brewer, finding the court’s of no waiver was whether a defendant waived his constitution- totality based on a consideration of the rights. al It is an issue with which courts surrounding circumstances confession, the defendant’s repeatedly must deal. Even when a so approach implicitly which coun- fundamental as that involved, to counsel at trial against per sels the use of se rules. More question of waiver must be de- Butler, recently, in North Carolina v. 441 U.S. particular termined on “the circum- facts and 369, 1755, (1979) 99 S.Ct. 60 L.Ed.2d 286 case, including surrounding stances Supreme per Court considered the se rule em- background, experience, and conduct ployed by Supreme the North Carolina 458, Court Zerbst, accused.” Johnson v. 304 U.S. prevented which the introduction in evidence 1019, 1023, 1461], S.Ct. 82 L.Ed. [58 against given a defendant of his statement dur- Washington, also United States v. 431 U.S. ing interrogation custodial unless the 52 L.Ed.2d [97 explicitly presence had waived his to the Bustamonte, 238]; 412 U.S. Schneckloth v. lawyer. of a The court held that North 854]; Frazier 36 L.Ed.2d [93 Supreme per Carolina se Court’s rule was not Cupp, v. 1424, [89 required Arizona, by Miranda v. 684], 22 L.Ed.2d 374-75, 441 U.S. at 99 S.Ct. 1757-58 principles During other of constitutional law. Mohabir, rights, its discussion of waiver of constitutional 5. United States v. 624 F.2d following (2d Cir.1980). the court made the observation