opinion: George Monroe PRYOR, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Tennessee State Penitentiary, Respondent-Appellant.
  No. 18338.
  United States Court of Appeals Sixth Circuit.
  Nov. 7, 1968.
  James M. Tharpe, Memphis, Tenn., for appellant; George F. McCanless, Atty. Gen. and Reporter, State of Tennessee, of counsel.
  G. Edward Draper, Memphis, Tenn., for appellee.
  Before PHILLIPS, EDWARDS, and McCREE, Circuit Judges.
  PER CURIAM.
  This is an appeal from a judgment granting a petition for habeas corpus and directing that petitioner-appellee be discharged from custody within fifteen days unless the state should decide to re-try him.
  The opinion and order of the District Court states the relevant facts which we find to be supported by the evidence. Petitioner-appellee, a twenty-eight year old male who had attended high school, was arrested in Memphis, Tennessee by the city police on January 18, 1964 and charged with rape of an eleven year old female. He was taken to the police station, where he was booked on a charge of criminal assault and confined in the city jail. The next day a city police officer advised petitioner that any statement he might make could be used against him in court and asked whether he desired to make one. Petitioner declined to do so and no attempt at interrogation was made. On the following day appellee was taken before a city judge acting as a committing magistrate. The judge advised him of the charge, determined the existence of probable cause from the testimony of a police officer, set bail, and bound him over for action by the grand jury. Appellee was not called upon to plead and the judge entered a not guilty plea for him. This was the practice in all felony cases and there was no provision for appointment of counsel at this stage and no inquiry was made with respect to a desire for counsel. Four days later, petitioner was indicted for rape (T.C.A. §§ 39-3701, 39-3702).
  On the following day, a city detective went to the apartment of petitioner’s paramour, where the offense was alleged to have been committed, for the purpose of taking some photographs for use in the prosecution. As the detective was leaving, petitioner entered the apart-meat to visit his paramour and their child. Petitioner knew the detective (described by him as a friend-acquaintance), knew that he was a city detective and assumed he was there to investigate the offense. A casual conversation ensued between petitioner and the detective in the presence of petitioner’s paramour, and in the course of the discussion the detective asked, “George, what happened?”. Petitioner replied, according to the detective, with an incriminating statement.
  Counsel was appointed for petitioner eleven months later. In April, 1965, after reindictment under a different provision of the Tennessee Code which made unnecessary proof of force, petitioner was tried and convicted of having carnal knowledge of a female under twelve years of age. (T.C.A. § 39-3705). He was sentenced to life imprisonment and his motion for a new trial was denied, and the conviction was affirmed on appeal. Pryor v. State, 217 Tenn. 695, 400 S.W. 2d 700 (1966).
  After exhausting available state remedies, petitioner filed a petition for habeas corpus, contending that his constitutional rights were violated by the admission into evidence of the incriminating statement elicited by the city detective. Following an evidentiary hearing, the District Court found that defendant was under indictment, that the detective deliberately obtained the statement, and that petitioner at that time had no lawyer and did not waive his right to have a lawyer present. Relying on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), he held that petitioner’s constitutional rights were violated by admission of the statement. His findings of fact are not clearly erroneous and we agree with his conclusion of law.
  Mr. Justice Stewart, speaking for the majority in Massiah, cited with approval, the Supreme Court’s language in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), where the Court noted that “ * * * during perhaps the most critical period of the proceedings * * * that is to say, from the time of his arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants * * * [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” 377 U.S. at 205, 84 S.Ct. at 1202. He then stated that a petitioner is denied the basic protections of the guarantee of the assistance of counsel “when there [is] used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. at 1203.
  The fact that counsel was not appointed for Pryor at the arraignment is not a per se violation of the Sixth Amendment. See Kimbro v. Heer, supra. However, Massiah makes it clear that the constitutional guarantee of counsel forbids the use of any incriminating statement deliberately obtained for the purpose of prosecution from a defendant who has not been advised of his right to remain silent and to the assistance of counsel, and has not clearly waived that right.
  The state’s contention that Massiah should be limited to circumstances where an incriminating statement is surreptitiously obtained is mistaken. In Lyles v. Beto, 379 U.S. 648, 85 S.Ct. 613, 13 L.Ed.2d 552 (1965), the Supreme Court remanded for consideration in the light of Massiah a case of purposeful post-indictment interrogation of an unrepresented defendant who had not been advised of his right to counsel and had not waived that right. Cf. United States v. Hindmarsh, 389 F.2d 137 (6th Cir. 1968). Affirmed.
  . Our decision in this case leaves unimpaired the decision of this court in Kimbro v. Heer, 364 F.2d 116 (6th Cir. 1966) rev’d on other grounds, 368 U.S. 128, 87 S.Ct. 902, 17 L.Ed.2d 778 (1967). In that case, we held that there is no constitutional right to be represented by counsel at a preliminary hearing provided that a plea of not guilty is entered at the time and no incriminating statements are adduced.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama