The opinion of the court was delivered by: LEVAL
This opinion addresses the motions of defendants Eugene Callabrass and Raymond B. Cromer to suppress statements made by them to an agent of the Drug Enforcement Administration.
The defendant Cromer moves to suppress a statement taken from him at the time of his post-indictment arrest. Since I find that the statement was taken from him in violation of his Sixth Amendment right to counsel, the motion is granted.
Cromer was indicted on June 6, 1978. In preparing to arrest him, Drug Enforcement Agent Edward Maher conferred with the Assistant United States Attorney in charge of the prosecution concerning warnings to be given Cromer before questioning. Mindful of a line of authority in this Circuit to the effect that warnings sufficient to comply with Fifth Amendment requirements as to pre-indictment interrogation "would not necessarily meet . . . the higher standard with respect to waiver of the right to counsel that applies (after indictment) when the Sixth Amendment has attached," United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970), Cert. denied, 400 U.S. 1022, 91 S. Ct. 586, 27 L. Ed. 2d 633 (1971), (Friendly, J., dissenting), United States v. Satterfield, 558 F.2d 655 (2d Cir. 1976), the Assistant wrote out some additional warnings which he instructed the agent to read to the defendant before questioning, together with the usual Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). The Assistant and the agent were on notice, by reason of Cromer's testimony before the grand jury, that he was represented by counsel.
Agent Maher placed Cromer under arrest at about 11:00 a.m. at his place of employment in Tarrytown, New York, and then read him his Miranda rights from a Drug Enforcement Administration card (GX 79). At the end of the reading, the defendant acknowledged his understanding of those rights and his election to waive them.
The agent continued the advice-of-rights by reading, as follows, from the handwritten paper prepared by the Assistant (GX 80):
You have been indicted by a grand jury composed of citizens of the Southern District of New York for violations of the narcotics laws, specifically conspiracy, possession with intent to manufacture PCP, and possession with intent to distribute.
This is a very very serious charge.
If you had a lawyer he or she would probably advise you not to say anything.
Maher asked the defendant if he understood this, and the defendant answered "Yes."
Maher then conducted the defendant to the D.E.A. headquarters on West 57th Street in New York City. Upon their arrival at approximately twelve noon, Cromer asked for permission to call his wife. Although he made the call, it is not clear whether he spoke to her. Maher then proceeded with fingerprinting and routine arrest processing. Upon its completion the agent asked Cromer whether he had ever written a General Foods order form for pepperdine and cyclohexanone. Cromer answered yes, that he had written several of them. Maher asked "Do you remember what you said in the grand jury?" and Cromer answered "I perjured myself." At that point Cromer asked to talk to his attorney. The questioning ceased, and Cromer placed a call to his lawyer.
I conclude that these answers to the agent must be suppressed.
First, I do not believe the Government has met the burden of showing a knowing and intelligent waiver of the Sixth Amendment right to counsel which attached at the time of the indictment. See Kirby v. Illinois, 40 ...