Court of Appeals for the D.C. Circuit

Calvin L. Ricks v. United States

118 U.S. App. D.C. 216 · 1964 U.S. App. LEXIS 5136 · 334 F.2d 964

June 9, 1964 · Docket 17771

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Opinion

BAZELON, Chief Judge.

A jury found appellant not guilty by reason of insanity on three counts of rape and one count of assault to commit rape. It found him guilty on four counts of robbery, five counts of assault with a dangerous weapon, and nine counts of housebreaking. The court committed appellant to St. Elizabeths Hospital on the verdicts of not guilty by reason of insanity and imposed sentences on the guilty verdicts to begin from date of imposition.1 We are urged to reverse the guilty verdicts chiefly on the ground tha,t the trial court erred in admitting several damaging oral and written statements which the police elicited from appellant in violation of Rule 5(a), Fed.R.Crim.P., and of his right to counsel.

These statements were obtained in the following circumstances. After Mrs. M., a rape victim, had identified appellant’s photograph, Detective Wallace arrested appellant, without a warrant, at his home at approximately 3:50 p. m. on a Sunday, and took him immediately to the Ninth Precinct Police Station where he was charged on the arrest book with rape and housebreaking. Appellant denied the charges. At 4:20 or 4:25, Mrs. M. positively identified him in a line-up as her assailant, and Detective Wallace, the arresting officer, was “perfectly satisfied” with her identification. But appellant continued to deny the charges. Sex Squad Detectives Wolfgang and Kline arrived at the precinct station at about 4:30 and were informed of Mrs. M.’s positive identification. Within five or ten minutes Detective Wolfgang began interrogating Ricks, and Detective Kline began efforts to reach an Assistant United States Attorney by telephone for advice as to a “night arraignment.” Kline reached an Assistant at 5:10 p. m., and upon being told that “it would be perfectly all right to hold the man over until Monday morning,” Kline made no effort to locate a committing magistrate.

At 5:30 Detective Wolfgang brought Mrs. M. into Ricks’ presence, where she related her version of the alleged crime. During this confrontation, which lasted until 6:00 p. m., Ricks did not depart from his claim of innocence. But after Mrs. M. stepped out of the room, Ricks admitted raping her, and he apologized to her when she returned.

At 6:05 p. m. Ricks was placed in a second line-up before a Miss S., who had been raped over seven months earlier, and before a son-in-law of Mrs. L., a victim of a more recent assault with a razor blade. Neither identified Ricks.

As Ricks left this line-up, Wallace told him that his fingerprints were found on the razor blade, and said, “Calvin, you might as well tell the truth.” Ricks said nothing, but a few moments later he passed Mrs. L.’s son-in-law in the corridor and said, “You’re the man that chased me out of the house when the woman on the second floor screamed.” At 7:00 p. m. Ricks was placed in a third line-up before a Miss A., who was unable to identify him as her attacker seven months previously. When the police ended their questioning of Ricks at 7:00 p. m. on Sunday, he had denied attacking Misses A., S. and C., and admitted attacking Mrs. M. and Mrs. L.

Ricks, who had no counsel, was taken before a Commissioner the next day (Monday) at 10:20 a. m. The Commissioner stated the charges and advised Ricks of his right not to make any statement and his right to retain counsel and to have a preliminary hearing. The Commissioner stated that Ricks could choose either (1) to have a hearing, (2) to waive the hearing, or (3) to postpone the hearing “for the purpose of contacting counsel or contacting any member of his family relative to securing counsel for him.” 2 When Ricks chose the latter, the hearing was continued for three days and he was held without bond. Immediately after Ricks’ appearance before the Commissioner, Detective Wolfgang obtained Ricks’ permission for an interview in the Commissioner’s cellblock. Ricks agreed to Wolfgang’s suggestion that Mrs. M. join them, but when Mrs. M. entered, Ricks asked her to leave. Then in the presence of only Detective Wolfgang, Ricks admitted several crimes, including those charged here, orally and by writing on cards and signing his name opposite various items on a list of open crimes. He stated that he wanted to apologize to his victims. Wolfgang left about 11:55 a. m.

At 2:23 that afternoon Ricks was taken before a judge of the United States District Court for a hearing on the United States Attorney’s request to release Ricks to the police “to assist in the solution of various * * * crimes.” Ricks agreed to go with the police, although the judge told him that he did not have to and that anything which transpired could be used against him. The judge did not tell Ricks that he had a right to counsel, nor did he offer to appoint counsel. Ricks was released to the police for four hours during which he repeated his earlier admissions.

At trial all of Ricks’ statements were admitted into evidence over his objection.

In Mallory v. United States,3 the Supreme Court provided a clear interpretation of Rule 5(a) of the Federal Rules of Criminal Procedure:

“The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on ‘probable cause.’ The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course be ‘booked’ by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” 4

We think Mallory requires exclusion of the statements which the police elicited from Ricks on the day of his arrest. Mrs. M. positively identified Ricks to the satisfaction of the arresting officer about thirty minutes after the arrest. At least at that point, if not earlier,5 the police were required to take Ricks before a committing magistrate unless further delay was occasioned by some proper purpose, such as the checking of a volunteered alibi or explanation “susceptible of quick verification.” 6 It is said that such verification is required for the accused’s protection against wrongful charges.7 But Ricks did not volunteer an alibi or explanation. Instead he maintained his innocence throughout the approximately two hours of detention after his arrest. The police activity during that period hardly reflects “the ordinary administrative steps required to bring a suspect before the nearest available magistrate.” 8 And the questioning which preceded Ricks’ statements precludes any claim that they constituted “spontaneous threshold confessions.” 9

Nor can the delay of a preliminary hearing be justified on the ground that police activity for that period was required to investigate other unsolved crimes for which there was no probable cause to arrest the accused.10 The ban against delay was not lifted each time the accused was confronted with another charge. Apparently the police were aware of this, for shortly after Mrs. M.’s positive line-up identification of Ricks, they tried to reach an Assistant United States Attorney about a “night arraignment.” It is clear, however, that neither the Assistant’s advice nor the posited inaccessibility of a committing magistrate licensed the police to continue “to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.”11

Appellant maintains that his statements on Monday after his appearance before the Commissioner must also be excluded because they were the “fruit” of his earlier illegally obtained admissions. See Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962). We do not reach that question, however, because these statements must be excluded on another ground.

“The complicated process of criminal justice is * * * divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication.” McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943). This division underlies the scheme of the Federal Rules of Criminal Procedure. Detection and apprehension are police functions. But “without unnecessary delay” after arrest the police must relinquish custody and control of the accused to the committing magistrate, a judicial officer. His function is to advise the accused of his rights under Rule 5 and-to conduct a hearing as soon as possible-to determine whether there is sufficient probable cause to warrant further detention of the accused. Pending that determination, and in the absence of bail, the accused is transferred to jail where he is in the custody of the warden12 subject to judicial, and not police, control.13 The purpose of the transfer is “to avoid all the evil implications of secret interrogation” by the police. See McNabb v. United States, supra, 318 U.S. at 344, 63 S.Ct. at 614. Those implications would not be avoided if the police were free to continue interrogation after the transfer.

Here Ricks was committed to jail pending the determination of probable cause, and the hearing thereon was continued solely for the purpose of granting him an opportunity to obtain counsel.14 But the police nipped this opportunity in the bud by virtually following upon Ricks’ heels, from the Commissioner’s hearing room into the cellblock, to continue their interrogation.15 And later the same day, an Assistant United States Attorney moved in the District Court for Ricks’ release to the police for four hours.16 Despite the fact that Ricks had not yet obtained counsel17 the District Court released him to the custody of the police.

If Ricks had had counsel, the police would not have interrogated him in private and at length in the Commissioner’s cellblock.18 Nor could they have taken him uncounselled into the District Court for the hearing which culminated in his delivery to the police and further interrogation.19 The mere fact that Ricks had not yet obtained counsel did not allow police to “continue to hound [him] * * * to give evidence against [himself] * * * until there is no escape at the trial * * 20 Ricks’ right to counsel did not depend on a race with the police. The police activities here violated the general scheme of the Federal Rules of Criminal Procedure, and the specific order of the Commissioner implementing Ricks’ right to counsel.

The Supreme Court has recently ruled that a confession obtained by a police agent from an uncounselled defendant on bail after indictment could not be used against him at trial. Massiah v. United States, 84 S.Ct. 1199, 1204 (1964). The Court recognized as a “constitutional rule” the New York doctrine that “Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 175 N.E.2d 445, 448 (1961). Mr. Justice White, in dissent, recognized that the Court’s holding “would seem equally pertinent to statements obtained at any time after the right of counsel attaches, whether there has been an indictment or not * * ''.” And the New York Court of Appeals in People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E. 103 (1962), and People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651 (1962), has barred confessions obtained in the absence of counsel both after probable cause had been found and during continuance in the probable cause hearing.2121

We need not decide whether the logic of Massiah requires all Federal courts to exclude such pre-indictment confessions since we may, and do, reach our conclusion here in the exercise of our local supervisory power.2222

Reversed and remanded for a new trial.

.

. The court imposed sentences of five to fifteen years on each of four of the housebreaking verdicts, to run consecutively, and sentences on all the other guilty verdicts, to run concurrently with the sentences for housebreaking. Appellant has not raised, and we therefore do not consider, the question whether the verdicts of guilty and not guilty by reason of insanity on counts arising out of a single occurrence are inconsistent.

Appellant has not raised, and we therefore do not consider, the question whether the verdicts of guilty and not guilty by reason of insanity on counts arising out of a single occurrence are inconsistent..

. The Commissioner did not offer to appoint counsel for Ricks if he was indigent. He was apparently prepared to hold the hearing without counsel if Ricks chose this alternative; he would also have allowed Ricks to waive hearing without a lawyer’s advice.

Twenty-two years ago, in holding that the privilege against self-incrimination applied at preliminary hearings, we said that the hearing was a “judicial proceeding” and not a “prosecutor’s inquisition,” that its purpose is “to decide between the informer or prosecutor and the accused on the preliminary question of his temporary restraint. * * * In subject matter and function, the hearing is judicial. It should be so in essential procedure.” We stated:

“For the same reasons the accused is entitled to have counsel at the hearing. If authority for this is needed, it is supplied by the decisions which sustain the right when the accused demands such aid at this stage. [Citing eases.] * * * As with the right of counsel, waiver of the privilege must be informed and intelligent. There can be no waiver if the defendants do not know their rights.”

Wood v. United States, 75 U.S.App.D.C. 274, 279-280, 286, 128 F.2d 265, 270-271, 277, 141 A.L.R. 1318 (1942).

In 1946, however, the Advisory Committee on the Federal Rules of Criminal Procedure stated in a note to Rule 44, that the Rule’s requirement for the assignment of counsel at every stage of the proceed*967ings “does not include preliminary proceedings before a committing magistrate.” And in 1949 this court, relying upon this note, observed in a habeas corpus proceeding that “[t]here is no constitutional ' requirement that the accused be represented by counsel on arraignment where he pleads not guilty * * * [or] at the preliminary hearing where he pleads not guilty.” Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S.Ct. 150, 94 L.Ed. 540 (1949). Quoting a Ninth Circuit case which had asserted that “the preliminary hearing is an ex parte proceeding,” the Council opinion concluded that no prejudice could occur if a “not guilty” plea was entered. But Wood had pointed out that the temporary loss of liberty authorized by the magistrate’s “judicial proceeding” was itself prejudicial. And the inconsistencies with Wood were unnecessary to Council’s holding that a conviction is not subject to collateral attack merely because counsel was absent during pretrial proceedings, unless that absence prejudiced the accused at trial. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), east doubt on the Council dicta that a lawyer is necessary only if a defendant pleads guilty.

If the advisory note to Buie 44, taken with Buie 5(b), is construed to establish a right only “to retain counsel” for the preliminary bearing, then the question arises whether there is an “invidious discrimination” between defendants who can afford to retain counsel and those who cannot. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct 917, 8 L.Ed.2d 21 (1962); Trilling v. United States, 104 U.S.App.D.C. 159, 177, 260 F.2d 677, 695 n. 24 (1958) (opinion of Bazelon, C. J.). The Advisory Committee’s proposed amendments to Rule 44 and Rule 5 would make counsel available equally to all defendants starting with their “initial appearance before the Commissioner.” See 1964 U.S. Code Cong. & Ad. News, Pamphlet No. 6, pp. 805-06, 832-33.

See also D.C.Code § 2-2202, which provides for the assignment of Legal Aid Agency attorneys by the Commissioner “in preliminary hearings in felony cases,” and requires him “to provide assignment of counsel as early in the proceeding as practicable.”

He was apparently prepared to hold the hearing without counsel if Ricks chose this alternative; he would also have allowed Ricks to waive hearing without a lawyer’s advice.Twenty-two years ago, in holding that the privilege against self-incrimination applied at preliminary hearings, we said that the hearing was a “judicial proceeding” and not a “prosecutor’s inquisition,” that its purpose is “to decide between the informer or prosecutor and the accused on the preliminary question of his temporary restraint.* * * In subject matter and function, the hearing is judicial.It should be so in essential procedure.”We stated: “For the same reasons the accused is entitled to have counsel at the hearing.If authority for this is needed, it is supplied by the decisions which sustain the right when the accused demands such aid at this stage.[Citing eases.]* * * As with the right of counsel, waiver of the privilege must be informed and intelligent.There can be no waiver if the defendants do not know their rights.”Wood v. United States, 75 U.S.App.D.C.274, 279-280, 286 , 128 F.2d 265, 270-271, 277 , 141 A.L.R. 1318 (1942).In 1946, however, the Advisory Committee on the Federal Rules of Criminal Procedure stated in a note to Rule 44, that the Rule’s requirement for the assignment of counsel at every stage of the proceed ings “does not include preliminary proceedings before a committing magistrate.”And in 1949 this court, relying upon this note, observed in a habeas corpus proceeding that “[t]here is no constitutional ' requirement that the accused be represented by counsel on arraignment where he pleads not guilty * * * [or] at the preliminary hearing where he pleads not guilty.”Council v. Clemmer, 85 U.S.App.D.C.74 , 177 F.2d 22 , cert. denied, 338 U.S. 880 , 70 S.Ct. 150 , 94 L.Ed. 540 (1949).Quoting a Ninth Circuit case which had asserted that “the preliminary hearing is an ex parte proceeding,” the Council opinion concluded that no prejudice could occur if a “not guilty” plea was entered.But Wood had pointed out that the temporary loss of liberty authorized by the magistrate’s “judicial proceeding” was itself prejudicial.And the inconsistencies with Wood were unnecessary to Council’s holding that a conviction is not subject to collateral attack merely because counsel was absent during pretrial proceedings, unless that absence prejudiced the accused at trial.Hamilton v. Alabama, 368 U.S. 52 , 82 S.Ct. 157 , 7 L.Ed.2d 114 (1961), and White v. Maryland, 373 U.S. 59 , 83 S.Ct. 1050 , 10 L.Ed.2d 193 (1963), east doubt on the Council dicta that a lawyer is necessary only if a defendant pleads guilty.If the advisory note to Buie 44, taken with Buie 5(b), is construed to establish a right only “to retain counsel” for the preliminary bearing, then the question arises whether there is an “invidious discrimination” between defendants who can afford to retain counsel and those who cannot.See Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963); Hardy v. United States, 375 U.S. 277 , 84 S.Ct. 424 , 11 L.Ed.2d 331 (1964); Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 (1963); Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); Coppedge v. United States, 369 U.S. 438 , 82 S.Ct 917 , 8 L.Ed.2d 21 (1962); Trilling v. United States, 104 U.S.App.D.C.159 , 177, 260 F.2d 677 , 695 n.24 (1958) (opinion of Bazelon, C. J.).The Advisory Committee’s proposed amendments to Rule 44 and Rule 5 would make counsel available equally to all defendants starting with their “initial appearance before the Commissioner.”See 1964 U.S. Code Cong.& Ad. News, Pamphlet No. 6, pp. 805-06, 832-33.See also D.C.Code § 2-2202, which provides for the assignment of Legal Aid Agency attorneys by the Commissioner “in preliminary hearings in felony cases,” and requires him “to provide assignment of counsel as early in the proceeding as practicable.”.

. 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

.

. Id. 354 U.S. at 454, 77 S.Ct. at 1359. And see D.C.Code § 4-140.

And see D.C.Code § 4-140..

. We need not decide whether delay to conduct a line-up is “necessary” delay. Cf. Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666, 671 n. 9 (1963).

Cf.Gatlin v. United States, 117 U.S.App.D.C.123 , 326 F.2d 666 , 671 n.9 (1963)..

. Mallory v. United States, 354 U.S. 449, 455, 77 S.Ct. 1356 (1957). And see Watson v. United States, 101 U.S.App.D.C. 350, 352-353, 249 F.2d 106, 108-109 (1957).

And see Watson v. United States, 101 U.S.App.D.C.350, 352-353 , 249 F.2d 106, 108-109 (1957)..

. See, e. g., Metoyer v. United States, 102 U.S.App.D.C. 62, 65, 250 F.2d 30, 33 (1957).

62, 65 , 250 F.2d 30, 33 (1957)..

. Mallory v. United States, 354 U.S. 449, 453, 77 S.Ct. 1356 (1957).

.Compare, Heideman v. United States, 104 U.S.App.D.C.

. Compare, Heideman v. United States, 104 U.S.App.D.C. 128, 130-131, 259 F.2d 943, 945-946 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959). And see Tatum v. United States, 114 U.S.App.D.C. 188, 313 F.2d 579 (1962).

In Ginoza v. United States, 279 F.2d 616 (9th Cir. 1960), the court, sitting ezz banc, ruled inadmissible a statement made after only 25 to 45 minutes of interrogation. It said: “Here, there was nothing spontaneous about Ginoza’s admissions and damaging statements. Nor were they given promptly after his arrest. They were the product of intensive interrogation in private, surrounded only by law enforcement officers and after confrontation by an informer.” Id. 279 F.2d at 621. The court also noted that “while aggravated circumstances existed in the McNabb case, and to some extent in Upshaw * * * and Mallory, the rule of exclusion for which they stand is not dependent upon such a showing.” Id. 279 F.2d at 622.

And see Tatum v. United States, 114 U.S.App.D.C.188 , 313 F.2d 579 (1962).In Ginoza v. United States, 279 F.2d 616 (9th Cir. 1960), the court, sitting ezz banc, ruled inadmissible a statement made after only 25 to 45 minutes of interrogation.It said: “Here, there was nothing spontaneous about Ginoza’s admissions and damaging statements.Nor were they given promptly after his arrest.They were the product of intensive interrogation in private, surrounded only by law enforcement officers and after confrontation by an informer.”Id. 279 F.2d at 621 .The court also noted that “while aggravated circumstances existed in the McNabb case, and to some extent in Upshaw * * * and Mallory, the rule of exclusion for which they stand is not dependent upon such a showing.”Id. 279 F.2d at 622 ..See Coleman v. United States, 115 U.S.App.D.C.

. See Coleman v. United States, 115 U.S.App.D.C. 191, 194, 317 F.2d 891, 894 (1963); Trilling v. United States, 104 U.S.App.D.C. 159, 164-167, 260 F.2d 677, 682-685 (1958); United States v. Meachum, 197 F.Supp. 803 (D.D.C.1961).

159 , 164-167, 260 F.2d 677, 682-685 (1958); United States v. Meachum, 197 F.Supp.803 (D.D.C.1961)..A magistrate is available twenty-four hours a day.

. A magistrate is available twenty-four hours a day. “If because of some extraordinary circumstance no magistrate were available, it would not follow that questioning could continue.” Coleman v. United States, 114 U.S.App.D.C. 185, 186, 313 F.2d 576, 577 (1962).

Coleman v. United States, 114 U.S.App.D.C.185, 186 , 313 F.2d 576, 577 (1962)..The Commissioner’s Temporary Commitment form (Admin.

. The Commissioner’s Temporary Commitment form (Admin. Office Dorm 97) authorizing Rick’s detention read as follows :

“To: The United States Marshal of the District of Columbia;
“You are hereby commanded to take the custody of the above named defendant and to commit him with a certified copy of this commitment to the custodian of a place of confinement within the District of Columbia approved by the Attorney General of the United States where the defendant shall be received and safely kept until discharge in due course of law. The above named defendant has been arrested but not yet fully examined by me upon the complaint of L.. . M..., charging * * * rape * *
The above named defendant has been arrested but not yet fully examined by me upon the complaint of L...M..., charging * * * rape * * .See Trilling v. United States, 104 U.S.App.D.C.159 , 176, 260 F.2d 677, 694 (1958).

. See Trilling v. United States, 104 U.S.App.D.C. 159, 176, 260 F.2d 677, 694 (1958). And see Manual fob United States Commissioners 18 (Rev. ed. 1948) : “Every commitment should be directed to the marshal or his deputies. No other officers are legally authorized to execute a commitment.”

No other officers are legally authorized to execute a commitment.”.See note 2 supra.

. See note 2 supra.

The Commissioner testified that- if Ricks had taken the initiative at his first appearance, and “had indicated to me that he was unable to secure counsel, I then would have offered to contact Legal Aid. * * * ” faet, js -^at happened when Ricks appeared without counsel for his hearing three days later.

* * * ” faet, js -^at happened when Ricks appeared without counsel for his hearing three days later..

. Since interrogation after the inception of the criminal process may be analogous to the taking of the accused’s deposition, we note that the rules governing depositions in civil cases, substantially adopted by reference and inference in Criminal Rule 15 for depositions in criminal cases, provide that “the deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.” Fed.R.Civ.P., Rule 26(a).

Fed.R.Civ.P., Rule 26(a)..

. “The Government moves * * * that * * * Ricks * * * be released to the custody of a Deputy United States Marshal and two members of the Metropolitan Police Department * * * to assist in the solution of various house-breakings and related crimes upon the express desire of Calvin Dee Ricks to assist the Police Department.”

.Compare Rule 44, Fed.R.Crim.P..

. Compare Rule 44, Fed.R.Crim.P.

. On oral argument the Government conceded the truth of appellant’s assertion that “When a defendant is represented by counsel, it is the practice of the United States Attorney not to permit any communication to be had by members of his staff or the police with the defendant except through, or with the permission of, counsel for the defendant.” This is consistent with Canon 9, A.B.A. Canons of Professional Ethics. Cf. Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963) :

“The Government’s brief concedes that secret, ex parte interrogations of defendants are not conducted when a prisoner has counsel. Presumably, legal ethics forbid a United States Attorney or a Government agent to bypass the lawyer of a defendant fortunate enough to have the means to engage counsel. This is a proper ethic for lawyers. But here the effect is to allow the prosecution to take advantage of an indigent prisoner without counsel, imperilling his constitutional rights by subjecting him to questioning intended to convict him, while recognizing an accused’s freedom from secret inquisition if he can afford counsel.”
This is consistent with Canon 9, A.B.A. Canons of Professional Ethics.Cf.Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963) : “The Government’s brief concedes that secret, ex parte interrogations of defendants are not conducted when a prisoner has counsel.Presumably, legal ethics forbid a United States Attorney or a Government agent to bypass the lawyer of a defendant fortunate enough to have the means to engage counsel.This is a proper ethic for lawyers.But here the effect is to allow the prosecution to take advantage of an indigent prisoner without counsel, imperilling his constitutional rights by subjecting him to questioning intended to convict him, while recognizing an accused’s freedom from secret inquisition if he can afford counsel.”.Compare Rule 15, Fed.R.

. Compare Rule 15, Fed.R.Crim.P., which sets out the procedure for taking a deposition of cmy witness at defendant’s request. The Rule clearly contemplates the presence of counsel for all parties at the deposition. In fact, Rule 15(c) requires that “if a defendant is without counsel the court shall advise him of his right and assign counsel to represent him unless the defendant elects to proceed without counsel or is able to obtain counsel.” Thus there can be no doubt that when the court orders in effect that a defendant’s own “deposition” be taken purportedly at his own request (see note 15, supra,), his counsel must be notified and given the opportunity to attend, and if he has no counsel, he must be told of his right to appointed counsel for the purpose of the “deposition.” See also note 18, supra.

The Rule clearly contemplates the presence of counsel for all parties at the deposition.In fact, Rule 15(c) requires that “if a defendant is without counsel the court shall advise him of his right and assign counsel to represent him unless the defendant elects to proceed without counsel or is able to obtain counsel.”Thus there can be no doubt that when the court orders in effect that a defendant’s own “deposition” be taken purportedly at his own request (see note 15, supra,), his counsel must be notified and given the opportunity to attend, and if he has no counsel, he must be told of his right to appointed counsel for the purpose of the “deposition.”See also note 18, supra..Ex parte Sullivan, 107 F.Supp.514, 517 (D.C.Utah 1952)..Both Meyer and Rodriguez are cited in Massiah (at note 3).

. Ex parte Sullivan, 107 F.Supp. 514, 517 (D.C.Utah 1952).

. Both Meyer and Rodriguez are cited in Massiah (at note 3). See also People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628 (1963).

.

. See Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946); Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993 (1949).