354 F2d 693 Opela v. United States

354 F.2d 693

Alfred Alphonse OPELA, Appellant,
UNITED STATES of America, Appellee.

No. 22076.

United States Court of Appeals Fifth Circuit.

January 7, 1966.

William Delf Bryce, Austin, Tex., for appellant.

Andrew L. Jefferson, Jr., Harry Lee Hudspeth, Asst. U. S. Attys., Ernest Morgan, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., Western Dist. of Texas, San Antonio, Tex., for appellee.

Before TUTTLE, Chief Judge, COLEMAN, Circuit Judge, and HUNTER, District Judge.


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Appellant was convicted under the Dyer Act. This appeal is based on the contention that appellant was denied the right to counsel at a critical stage of the proceedings against him1 contrary to the principles enunciated by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.


Recognizing, as we do, that this Court, in Clifton v. United States, 341 F.2d 649, has given a broad construction to Massiah, nevertheless it has not been made apparent here that, relative to the federal charge, the federal agents had proceeded beyond the investigatory stage of the inquiry. Having fully advised appellant of his rights to counsel and to remain silent, although not having told him that he could have counsel appointed if he was charged and was indigent, we conclude that Opela's constitutional right to counsel was not impaired.


The judgment is affirmed.



The record discloses that Opela had been legally arrested by police officers in Austin on a state charge, and while they were questioning him at police headquarters he requested an opportunity to talk to an FBI agent. This agent was called and warned Opela that he did not have to make a statement; that if he did it could be used against him; and that he could have counsel if he wanted. He did not state that counsel would be appointed for Opela at that stage of the proceeding if Opela was indigent. We know of no provision for appointment or payment by the United States of counsel for services of counseling under such circumstances