(dissenting) :
I regret that I cannot agree with the majority opinion in this case. The following are my reasons:
Appellant, an authorized firearms dealer, owner and operator of the Modern Gun Shop, in Birmingham, Alabama, was convicted of a violation of the National Firearms Act largely on the testimony of a secret Government informer named Sirles, who is an ex-convict, having been convicted when 18 years of age on interstate transportation of a stolen vehicle and placed on probation, and the testimony of Federal Alcohol and Tobacco Tax Agent McGinnis, for having unlawfully sold a submachine gun to Sirles. Appellant denied the sale of the gun but admitted selling some of the parts of such a gun to Sirles. He also pled entrapment. Numerous errors are specified by appellant. However, I will consider only one specification which in my opinion is sufficient to require reversal of the conviction and a new trial. This specification, made by appellant for the first time on appeal, relates to the admission of the alleged prejudicial testimony by the secret informer, Sirles, and Agent McGinnis. Sirles testified that eight days after appellant’s indictment and before his trial, appellant, then free on bail, telephoned Sirles asking that he meet him. Sirles was not known to appellant to be a Government informer. Nor was appellant aware that prior thereto, on December 7, 1964, the date of the alleged offense, in the several meetings Sirles had that day with appellant to consummate the sale of the gun, Sirles had been equipped by Agent McGinnis with a miniature radio transmitter which he wore on his person, allowing Agent Mc-Ginnis to hear electronically all of the conversations between them. As a result of appellant’s call, Sirles telephoned Agent McGinnis, inquiring whether he should attend the meeting, and was told to do so by McGinnis. The meeting between appellant and Sirles was held on February 18, 1965 in Sirles’s automobile and Agent McGinnis was secreted in the trunk where he overheard the entire conversation between Sirles and appellant which lasted about forty-five minutes. McGinnis had equipped himself with a tape-recording device which he testified', failed to work, but he heard the conversation nevertheless.
Both Sirles and McGinnis then testified at appellant’s trial to the conversation between Sirles and appellant, much of which testimony was highly damaging and prejudicial to appellant. These witnesses testified that they heard appellant ask Sirles what he had done with the sub-machine gun he had sold him, and Sirles said he had given it to a truck driver in Miami, Florida. Sirles testified that appellant told him he had quite a few ille- ■ gal tommy guns; that he was worried about the gun he sold him and threatened Sirles that if he appeared against him or the gun ever came into court, somebody named Shorty the Baptist would take care of him. Agent McGinnis corrobo- - *192rated Sirles’s testimony. He said that he heard appellant ask what Sirles had done with the submachine gun he sold him and' Sirles replied that he sold it to a Miami truck driver; that appellant said the gun had better not turn up in court; that all appellant had to do was pick up the phone and call Shorty the Baptist and they would be “rubbed out”; that for every legal gun, appellant had an illegal one.
Appellant relies on the Supreme Court’s decision in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), in support of his contention that admission of the testimony of Sirles and McGinnis to the conversation between appellant and Sirles in the automobile constituted reversible error. In Massiah, evidence was used against the accused of incriminating statements made by him to a co-defendant after their indictment and release on bail and in the absence of Massiah’s counsel. The statements were overheard on radio by a Government agent without defendant’s knowledge that his co-defendant had decided to turn informer or that he had permitted a Government agent to install a radio transmitter under the front seat of co-defendant’s automobile. The Supreme Court held that defendant’s Fifth and Sixth Amendment rights relative to the privilege against self-incrimination and to the aid of counsel had been violated by use of defendant’s incriminating statements in evidence against him.
The majority opinion attempts to distinguish Massiah, arguing that it differs on the facts because the idea of the meeting in Massiah at which the federal agent surreptitiously overheard incriminating statements by defendant to his co-defendant originated with the Government, whereas in the present case the suggestion for the meeting is said to have originated with appellant. The majority opinion argues that there was no deliberate plan by the Government to obtain incriminating statements from appellant, which statements were voluntarily made by him subsequent to his indictment and while he was purportedly attempting to intimidate Sirles from testifying against him at the trial. The majority opinion states that several decisions rendered since Massiah lend support to its holding that there has been no invasion of appellant’s constitutional rights since his statements to the secret informer, Sirles, overheard by Agent McGinnis, were voluntary and not deliberately elicited. The majority cites United States v. Gardner, 7 Cir., 1965, 347 F.2d 405, where a deputy marshal taking a defendant and another prisoner to a federal building to confer with their attorneys overheard an incriminating conversation between the two prisoners, and was allowed to testify to it and the Seventh Circuit affirmed. Also cited is United States v. Accardi, 2 Cir., 1965, 342 F.2d 697, where the defendant volunteered certain incriminating statements to a Government agent who had come to a gasoline station to serve a subpoena on defendant’s brother-in-law. In the cited case conversations were initiated by defendant with the Government agent who was present for an entirely different reason than to interrogate the defendant, and in fact did not ask a single question of defendant concerning the facts of the case. The statements were admitted. Another citation is that of Stowers v. United States, 9 Cir., 1965, 351 F.2d 301, which involved a prisoner in the same cell with a defendant who testified to incriminating conversations with him. The Ninth Circuit affirmed, stating that there was no evidence to support appellant’s contention that the cellmate was acting as an agent or in behalf of the Government. Finally, the majority cites Paroutian v. United States, 2 Cir., 1967, 370 F.2d 631, where appellant made incriminating statements to his cellmate who informed federal authorities that the statements had been made and offered to testify to them. The cellmate’s testimony was admitted into evidence and the conviction affirmed. None of the cited cases is applicable on the facts to the present ease and all are clearly distinguishable.
*193Agent McGinnis’ presence secretly in the trunk compartment of Sirles’s vehicle was not mere chance or accident. Though appellant is said to have initiated the meeting with Sirles, the secret eavesdropping setup was the result of deliberate prearrangement by McGinnis with the secret informer Sirles for possible use at appellant’s trial. When McGinnis told Sirles to go ahead with the meeting with appellant and hid himself in the trunk of the car and equipped himself with a recording device, the inference is inescapable that he expected appellant to incriminate himself during the meeting and that he wanted a recording of the conversations for use at the trial of the then pending indictment. Sirles must have realized that McGinnis wanted something incriminating out of appellant’s mouth; otherwise, it would have been pointless for McGinnis, with tape recorder, to hide in the trunk of Sirles’s automobile. Sirles was cooperating fully with the Government to help convict his own business customer by being a secret Government informer. Appellant did not know that Sirles was a Government informer nor was he aware that McGinnis was secreted in his trunk with a tape recorder overhearing everything that was said. This conversation and the statements purportedly made by appellant cannot be said to have been voluntarily and deliberately made with full knowledge of the identity of Sirles or of the presence of McGinnis. They were made, of course, without counsel for appellant being present. No specific objection to this testimony of Sirles and McGinnis was made at the trial but admission of such highly prejudicial testimony was plain error, affecting substantial constitutional rights which should be noticed, and we are left with grave doubt whether a conviction would have resulted under the circumstances. See Rule 52(b), Fed. R.Crim.P.; Landsdown v. United States, 5 Cir., 1965, 348 F.2d 405; Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). In Massiah, as here, there was no objection to the admission of the Massiah conversations with his code - fendant at the time of trial. See United States v. Massiah, 2 Cir., 1962, 307 F.2d 62, at 65.
During the critical period of the proceedings, from the time defendant is charged until his trial, he is as much entitled to the aid of counsel as at the trial itself. Cf. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Clifton v. United States, 5 Cir., 1965, 341 F.2d 649. Since Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the fundamental constitutional right under the Sixth Amendment to the assistance of counsel in the defense of all criminal prosecutions in federal courts has been scrupulously maintained. To deny him this right by secret post-indictment and before-trial eavesdropping of conversations with a secret informer, and then recount the prejudicial incriminating statements of appellant at his trial, is to deprive appellant of the effective assistance of counsel at a stage when such advice would have helped him. See Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Cf. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).1 The surreptitious post-indictment conversations and eavesdropping were unlawful and thus contravened the constitutional rights of appellant.
Though appellant’s statements to Sirles in the automobile were voluntary, they do not differ in that regard from those of Massiah which were likewise completely free from coercion.2
In Spano v. People of State of New York, supra, Mr. Justice Douglas point*194ed out that the indictment marks the beginning of legal proceedings against a defendant. Having reached the indictment stage and while awaiting trial, appellant was entitled to counsel at every stage of the proceedings thereafter, including the time of the meeting in Sirles’s automobile. With benefit of counsel, it is doubtful that appellant would have engaged in the conversation which was related to the jury by Sirles and McGinnis. As was said in 49 Minn. L.Rev. 49 at 57 (Enker and Elsen, Counsel for the Suspect), “The real issue presented in Massiah is whether law-enforcement officials may seek evidence from an accused’s own mouth when the accused does not realize that he is talking to such officials and is providing them with evidence that will help to convict him.” In Lyles v. Beto, 5 Cir., 1964, 329 F.2d 332, this Circuit affirmed denial of habeas corpus relative to a state court conviction which was based upon a written confession voluntarily made by the defendant after indictment but before appointment of counsel. On certiorari the Supreme Court, in a memorandum per curiam, vacated the judgment and remanded the case for reconsideration in light of Massiah. See 379 U.S. 648, 85 S.Ct. 613, 13 L.Ed.2d 552. Though the majority states that Massiah is applicable only to the facts and circumstances of that case, it is clear that legal principles have evolved from Massiah which are applicable here and that once a person is indicted in a criminal case he has a right to counsel before and during the trial and his voluntary conversations and admissions made out of court to secret Government informers, overheard surreptitiously by Government agents, are inadmissible in evidence in the absence of an express waiver by the defendant.
In my view, admission of the testimony of Sirles and McGinnis to the surreptitiously overheard post-indictment conversations was seriously prejudicial error sufficient to require reversal of the conviction and the granting of a new trial.
I respectfully dissent.
. See also O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94, deeided March 20, 1967, involving electronic eavesdropping or wire tapping after indictment where a conviction was set aside and new trial ordered by the Supreme Court in a per curiam opinion.
. See the Supreme Court, 1963 Term, 78 Harv.L.Rev. 143 at 221.