dissenting:
With great respect for my brothers constituting the majority, I must dissent from that portion of the opinion which holds Mary Brown’s statements to Agent Parga on August 14, 1974 inadmissible. It seems to me that the majority holding establishes a rule of law directly in conflict with the well established doctrine of waiver as found by the district judge. If there can be no waiver under these undisputed facts, there can be no waiver of counsel and all state*648ments made in the absence of counsel are inadmissible.
Most of the factual background is set forth in clear precise detail; however, since the majority hinges “upon the right to have counsel present during an interrogation” and bases the ruling upon the agents failure to determine if Mary Brown had in fact retained counsel, and whether she wanted her attorney to be present at this interrogation, some additional expansion may be helpful. Mary Brown was not in state custody. She was arrested on August 9, 1974 and after spending the night in jail was released on bond. At that bond hearing on August 10, 1974, the public defender was appointed to represent her. On August 14, 1974, she was on her way to a preliminary hearing scheduled to be heard in the state courthouse.
Mary Brown had a college education having attended Florida Memorial College in St. Augustine, Florida for four years. She worked as an elementary school teacher for thirteen years. After encountering Mary Brown, Agent Parga identified herself, explained the purpose of her interception and read the full Miranda warnings as follows:
Before we ask you any questions, you must understand your rights.
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
After this reading, Agent Parga had Mary Brown read and sign the following waiver:
WAIVER OF RIGHTS
I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
Agent Parga assumed that Mary Brown had an attorney. Surely Mary Brown knew she had an attorney as she was on her way to meet with him before the scheduled hearing. Just how Agent Parga could have determined in a more precise manner whether or not Mary Brown desired her attorney be present during the questioning is not clear to me.
The majority opinion cites Massiah and other cases to support its rationale. I have no quarrel with any of these recognized authorities but wish to point out why factually they are not controlling.
In Massiah the petitioner had already been indicted, retained an attorney, pled not guilty and been released on bail. The federal agent involved, without petitioner’s knowledge, planted a listening device in a co-indictee’s car knowing the petitioner would ride in it while he was free on bail. The Supreme Court found that incriminating statements made by the petitioner at this time were excludable under the Constitution.
Escobedo is also cited by the majority for the premise that a defendant’s right to speak with his attorney begins “when the process shifts from investigatory to accusatory.” Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977, 989. In Escobedo, the defendant was taken into custody by the police and during a grueling interrogation he repeatedly asked to see his attorney (who was waiting to see him). He was denied this right and eventually confessed to murder. The Supreme Court held:
. that where . . . the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the *649police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment to the Constitution . and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.
Escobedo, supra, 378 U.S. 478,490-491, 84 S.Ct. at 1765.
The majority also cites Clifton v. United States, 341 F.2d 649 (5th Cir. 1965), as an example of Escobedo being applied in the Fifth Circuit. In Clifton, the defendant, in jail over two months, awaiting trial, had voluntarily requested the federal agents to come see him but when he was being taken for the interview he repeatedly requested that his attorney be called. This court stated:
While we hold that interrogating officers must make some reasonable attempt to ascertain whether such an accused has an attorney and desires that he be present, we do not reach the question of admissibility where the accused has clearly and unequivocally waived the right to consult his attorney . . . The record in this case discloses that the interviewing officers should have known that the accused was represented by counsel, and that they made no reasonable effort to ascertain whether he desired to consult with his attorney. (Emphasis added).
Clifton, supra, p. 653. Therefore his incriminating statements were not admissible at trial.
Then cited are Anderson, DeLoy and Vasquez for the proposition that not all statements made without counsel present are inadmissible.
In United States v. Anderson, 523 F.2d 1192 (5th Cir. 1975), this court reversed the district court for “. . . permitting] a prosecution witness to testify regarding defendant’s actions and statements during a [surreptitious] government-sponsored encounter after his indictment and in the absence of retained counsel.” (Emphasis added) Supra pp. 1193-1194.
The facts of United States v. DeLoy, 421 F.2d 900 (5th Cir. 1970) indicate the defendant on his own initiative made incriminating statements to the F.B.I. after a knowing waiver of his rights. The court held that Massiah did not extend so far as to require a reversal of defendant’s conviction. The court even stated:
This circuit has plainly adopted the more restrictive reading of Massiah, requiring, in effect, that there be some circumstance more than the bare absence of counsel before a defendant’s post-indictment statement is rendered inadmissable. (Citations omitted).
DeLoy, supra, p. 902.
As stated by the majority, this circuit does recognize the validity of a voluntary waiver of the presence of counsel. The case of United States v. Vasquez, 476 F.2d 730 (5th Cir. 1973) is strikingly similar. Defendant Vasquez was in custody in a Florida County jail on a state charge of murder when an F.B.I. agent came to question him about an M-14 rifle that had been seized in connection with a recent shooting. Vasquez was advised of his rights including the right to have the advice of counsel, waived that right and agreed to discuss the rifle (not the shooting) with the F.B.I. agent. Vasquez was represented by an attorney who had been appointed for him on the state charge. Defendant was subsequently charged and convicted of the federal crime of possession of an unregistered firearm. This court affirmed that conviction stating:
In this case where the defendant was carefully apprised of his right to have counsel, there is no merit in the contention that the defendant was unable to waive that right.
Supra, p. 733.
In the case at bar this defendant also had state charges against her but had not yet been indicted. There was no federal indict*650ment or even an arrest on federal charges. Here as in Vasquez the agents were investigating the possibility of a violation of federal law.
Frankly, if the majority opinion had based its holding upon governmental misconduct I would better understand. We cannot condone such tactics as deliberately intercepting a “known target” in a criminal investigation walking through the halls of a state court en route to a conference with her attorney to prepare for a preliminary hearing. But would the majority hold differently if the interview had been held at Mary Brown’s residence on August 13, 1974? I think so and am therefore concerned about the principle of law being established rather than the result.
In my opinion, Mary Brown made a clear and unequivocal waiver of her right to the presence of counsel and I, therefore, dissent.