(dissenting) :
The interrogation of Massimo after arraignment raises serious questions not simply with respect to the Fifth Amendment under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which are cited by my brother Smith, but, more importantly, with respect to the Sixth under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Since Massimo’s “criminal prosecution” had begun, the Sixth Amendment entitled him to counsel at any “critical stage,” Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), which interrogation to elicit his guilt surely was, unless the protection was waived. Warnings by law enforcement officers and subsequent action by the accused that might suffice to comply with Fifth Amendment strictures against testimonial compulsion would not necessarily meet what I regard as the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached. See United States ex rel. O’Connor v. New Jersey, 405 F.2d 632, 636 (3 Cir.), cert. denied, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969); contra, Coughlan v. United States, 391 F.2d 371 (9 Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); United States v. De Loy, 421 F.2d 900 (5 Cir. 1970). Indeed, in the case of a federal trial there would seem to be much ground for outlawing all statements resulting from post-arraignment or indictment interrogation (as distinguished from volunteered statements) in the absence of counsel when the questioning has no objective other than to establish the guilt of the accused, even if the Sixth Amendment does not require so much. See Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964 (1964).1
The majority does not reach this serious issue because of the stipulation. But the record about that is confused in the last degree. Defense counsel apparently was laboring under the misapprehension that Judge Weinfeld had declined to suppress Massimo’s post-arraignment confession, and expressed an intention “to preserve any appellate issue that may come from the pretrial determination of the motion.” A court, even on appeal, has power to relieve against a stipulation entered into through inadvertence or mistake, see Aronstam v. All-Russian Central Union of Consumers’ Societies, 270 F. 460, 464 (2 Cir. 1920), without having to go the extent of finding incompetence of counsel. The case for doing this is particularly strong when the stipulation may have led to the sacrifice of a criminal defendant’s constitutional rights, and the parties can so easily be restored to their prior position.
The majority recognizes, fn. 1, that the circumstances may well support collateral attack on the judgment we are affirming. I fail to see why we should remit appellant to that remedy in the ease of this bench trial where we need only direct the trial judge to make further inquiry and take such action as she may find appropriate. I would vacate the conviction and remand for a further hearing with respect to the interrogation and the making of the stipulation.
. These issues seem to be open in this Circuit. See United States v. Garcia, 377 F.2d 321 (2 Cir.), cert. denied, 389 U.S. 991, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967) ; United States v. Maxwell, 383 F.2d 437 (2 Cir. 1967) ; cert. denied, 389 U.S. 1057, 88 S.Ct. 809, 19 L.Ed.2d 856 (1968). For the strict rule applied by the New York courts, see People v. Vella, 21 N.Y.2d 249, 251, 287 N.Y.S.2d 369, 370, 234 N.E.2d 422 (1967) ; People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962) ; People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651 (1962).