Hastie, Chief Judge, and Seitz and Aldisert, Circuit Judges.
Three months after appellant was indicted for murder by a state grand jury in New Jersey, he was arrested in New York as a fugitive felon and returned to New Jersey for prosecution.*fn1 He was then interrogated by police officers who did not advise him of his right to remain silent; at this time he was not represented by counsel. Certain incriminating statements made by him at this interrogation were introduced at trial.*fn2 He was convicted on May 8, 1963, and sentenced to life imprisonment.
The New Jersey Supreme Court affirmed the conviction on June 22, 1964;*fn3 the United States Supreme Court denied certiorari on November 16, 1964.*fn4 He availed himself of the appropriate state post-conviction procedures,*fn5 and then sought habeas corpus relief in the District Court.*fn6 He now appeals from the order of the court below denying relief.
We must decide whether the introduction at his state trial of post-indictment incriminating statements made without counsel violated constitutional principles enunciated in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246, decided on May 18, 1964, while appellant's case was on direct appeal.*fn7
The District Court concluded that although O'Connor was interrogated after indictment while he was without counsel and not advised of his right to remain silent, the rule of Massiah was nonetheless subject to the same retroactive limitation as Escobedo and Miranda.*fn8
Before we reach the question of whether the Massiah ruling enunciated in 1964 may be applied to the 1963 trial of this appellant, it is necessary to decide if the present appeal falls within the substantive rule of that case. If it does not, then the chronology of the cases becomes an immaterial point.
The defendant in Massiah was accused of a federal narcotics offense. Following his arrest, he retained counsel, was indicted, pleaded not guilty, and was released on bail. While he was free on bail, a federal agent, with the cooperation of a co-defendant, surreptitiously monitored a conversation between Massiah and the co-defendant. The substance of the conversation containing incriminatory statements was introduced at trial, and he was convicted. The Supreme Court held that the introduction of the extrajudicial statements violated the accused's Sixth Amendment right to the aid of counsel, stating:
"This view no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, where the court noted that '* * * during perhaps the most critical period of the proceedings * * * that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants * * * [are] as much entitled to such aid [of counsel] during that period as at the trial itself.'" 377 U.S. at 205, 84 S. Ct. at 1202.
Citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), inter alia, the Court continued: "The same basic constitutional principle has been broadly reaffirmed by this Court." But the Court then added: "Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies." This was an obvious implication that the rule of Massiah was to apply only to federal prosecutions,*fn9 although the reasoning in the opinion was expressed in terms of "basic constitutional principles". The opinion concluded:
"All that we hold is that the defendant's own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at trial." 377 U.S. at 207, 84 S. Ct. at 1203.
Massiah left three important questions unanswered: (1) Was it applicable only to federal prosecutions? (2) Was it restricted to special "circumstances" or did it confer an absolute right to counsel in all cases following indictment? (3) Was it to be applied retroactively?
The first of these questions was answered in Lyles v. Beto, 379 U.S. 648, 85 S. Ct. 613, 13 L. Ed. 2d 552 (1965). The defendant in Lyles had been convicted of burglary in a state prosecution. His extrajudicial confession given after indictment while not represented by counsel was introduced at trial. Relying on Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959),*fn10 Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958) and Cicenia v. LaGay, 357 U.S. 504, 507, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958), the Fifth Circuit held that there was no absolute ...