Pp. 239-243. 358 F.2d 557, vacated and remanded. Beatrice Rosenberg argued the cause for the United States.

United States ex rel. Stovall v. Denno, 2 Cir., 1966, 355 F.2d 731, 739. The exception is Wade v. United States, 5 Cir., 1966, 358 F.2d 557. Wade is a two to one decision.

The evidence hereinbefore quoted, demonstrates that the lineup at which defendants LaJoy, Tomaszck and D'Argento appeared, was fairly conducted and we hold that by reason thereof there was no violation of the Fifth Amendment's prohibition against compulsory self-incrimination. The second principal contention of defendant LaJoy is that compelling him, after indictment, to exhibit himself in the lineup in the absence of his attorney or his express consent, violates his constitutional right to be represented by counsel as guaranteed by the Sixth Amendment. He relies upon Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Wade v. United States, 5 Cir. (1966), 358 F.2d 557. This defense is adopted by defendants Tomaszck and D'Argento.

No reference was made by anyone, however, to the pretrial lineup identification which occurred on September 11, 1961 or to the confession Allen had given. Allen's counsel nevertheless urged objections to any identification testimony by Mrs. Foster, relying for support on the rule then recently announced by the Fifth Circuit in Wade v. United States that a lineup identification without the benefit of counsel made all identification testimony per se inadmissible. See Wade v. United States, 5 Cir., 358 F.2d 557 decided May 11, 1966. Allen's counsel's objection was based upon the contention that the lineup is a critical stage of the prosecution, and, although there was ample time to appoint counsel before the lineup, Allen was required to attend without benefit of counsel. He asserted, moreover, that Allen had not waived the right to counsel.

Wade and Gilbert were on direct appeal; Stovall was a habeas corpus case collaterally involving the same question as Wade and Gilbert; Stovall construed and determined the extent to which Wade and Gilbert should be applied, and held that they should be prospectively limited because the two cases established new rules of law, and not the mere enunciation and application of prior law as to the right of counsel at a police lineup for purposes of identification. WADE CASE: On certiorari, the United States Supreme Court (in reviewing Wade v. United States, 5 Cir. 1966, 358 F.2d 557) held: where the in-court identification of Wade was by two prospective prosecuting witnesses who initially identified Wade as the bank robber at a police lineup after indictment and after seeing Wade on that occasion and before the lineup in custody of an officer, the lineup identification occurred on May 12, after the court had appointed counsel for Wade on April 26, 1965, and Wade was deprived of assistance of counsel at the lineup, a critical stage in his prosecution, it was error to deny defense counsel's motion to strike the courtroom identification, but the courtroom identification should not be excluded if based on observation of the accused other than the lineup identification when "a per se rule of exclusion of courtroom identification would be unjustified." Police Lineup Identification — Courtroom IdentificationAttorney Not Notified

The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification. Today's rulings were not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F.2d 557. The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibility for the jury.

Stovall, supra, 388 U.S. at 297, 87 S.Ct. at 1970. Speaking through Justice Brennan, the Court noted that the new standards — which required trial courts to conduct precisely the kind of preliminary hearing held in the case at bar to determine whether the witness had an independent basis for identifying the accused — "were not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F.2d 557. The overwhelming majority of American courts have always treated the evidence question not as one of admissibility but as one of credibility for the jury." Stovall, supra, 388 U.S. at 299-300, 87 S.Ct. at 1971-72 (emphasis supplied).

The facts in this case raise the issue present in conflicting Second and Fifth Circuit cases which this Court has granted certiorari to determine. United States ex rel. Stovall v. Denno, 355 F.2d 731 (2nd Cir. 1966), cert. granted 34 U.S.L. Week 3429 (June 20, 1966); Wade v. United States, 358 F.2d 557 (5th Cir. 1966), cert. granted 35 U.S.L. Week 3124 (Oct. 10, 1966). The Second Circuit, sitting en banc, held that the defendant's Fifth, Sixth and Fourteenth Amendment rights were not violated when he was taken to the victim's hospital room for identification without the benefit of a line-up or counsel, even though arraignment had been postponed to allow him to obtain counsel.

The brief vigorously contended that the one-to-one exhibition of Kapatos to Kreisman, Figueroa, Moots and White was unduly suggestive and cited Mullett's testimony to support this claim. The error was said to be "much more flagrant" than in Wade v. United States, 358 F.2d 577 (5 Cir. 1966), which then had not yet been reviewed by the Supreme Court. We affirmed without opinion.

In Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court recognized that the law enforcement officials of the Federal Government and all 50 states had proceeded on the assumption that counsel was not necessary at a lineup or an out-of-court confrontation. Standing by itself, alone and unaided by specific precedent, was the decision of this Court in Wade v. United States, 5 Cir., 1966, 358 F.2d 557. It foreshadowed a reversal in the line of decisions. Our decision in Wade led one commentator to recommend with prescience that "to prevent the violation of [constitutional] rights, the police must warn an accused of his right to counsel before any [identification] procedures are conducted."