384 F.2d 923
William C. FENDLEY, Jr., Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Fifth Circuit.
November 2, 1967.
John Paul Howard, Jacksonville, Fla., for appellant.
William J. Hamilton, Jr., First Asst. U. S. Atty., Samuel S. Forman, Asst. U. S. Atty., Edward F. Boardman U. S. Atty., Middle Dist. of Florida, Jacksonville, Fla., for appellee.
Before TUTTLE and WISDOM, Circuit Judges, and HEEBE, District Judge.
The defendant was in state custody at the time of his interrogation by the FBI. The interrogation was an important part of the federal criminal proceedings which had obviously then focused on the defendant. As was the case in Miranda this was an interrogation "in a police-dominated atmosphere." Miranda v. State of Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At a hearing conducted by the district judge on the admissibility of a statement by the defendant taken at that interrogation, the FBI agent testified that the defendant was advised that he "had the right to remain silent, that he didn't have to make any statement, that if he did make any statement, it could be used against him in a court of law." Although the agent stated that he also advised the defendant that "he had the right to consult an attorney or anyone else before making a statement," and that "if he did not have any money to obtain an attorney that the Judge, the Court, would appoint one for him when he went to court," the defendant was not advised, as Miranda requires, of his right to have court-appointed counsel present during the interrogation. Although the interrogation was made and the defendant's statement taken prior to the Miranda decision, the trial took place subsequent to Miranda and the strict standards established by that case should have been applied by the trial court to the issue of admissibility at trial. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Evans v. United States, 375 F.2d 355 (8th Cir. 1967). The statement having been improperly admitted, the conviction must be