dissenting from denial of en banc hearing with whom Judge ELY joins:

The issue is whether Mizera’s consent was voluntary. If Mizera’s consent was involuntary, the conversations between him and Ryan were inadmissible under 18 U.S.C. § 2511 (2)(c). 1

The district court’s factual findings on this issue can be summarized as follows: 2 To secure Mizera’s consent, the officers told him that they were prepared to arrest him immediately and that they had enough evidence to send him to prison for ten years. But, they suggested, if Mizera “cooperated,” the prosecution would be dropped. The officers also told him that if he did not cooperate, he would lose his livelihood, damage his family, and be deprived of special medical treatments for his severe headaches. Mizera asked if he could call his lawyer. The officers said that he could do so, but if he did, the deal was off. The district court held that “consent” thus secured was “voluntary,” the panel affirmed, and the court has refused to take this case en banc.

As early as 1897, the Supreme Court recognized that coercion need not take the form of physical torture:

And more recently:

The psychological pressures employed by the officers in the present case represent just such coercion comprised of threats of prosecution and long imprisonment, of the inability to receive vital medical treatment, of unauthorized promises of immunity, and of the deprivation of counsel. The methods were not as clumsy as physical torture, but they were no more subtle and every bit as effective.

The conclusion of the district court, affirmed by the panel, that this conduct was not coercive, and that the consent produced by these pressures was voluntary is flatly contrary to the controlling teachings of the Supreme Court and to the law of our Circuit. (E. g., Lynum v. Illinois (1963) 372 U.S. 528 , 83 S.Ct. 917 , 9 L.Ed.2d 922 (Confession secured by threats that defendant “ ‘could get 10 years and [that] the children could be taken away’ ” unless she “cooperated,” held involuntary. ( 372 U.S. at 531, 534 , 83 S.Ct. at 919 ) “We think it is clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases.” ( 372 U.S. at 534 , 83 S.Ct. at 920 ).) Shotwell Mfg. Co. v. United States (1963) 371 U.S. 341 , 83 S.Ct. 448 , 9 L.Ed.2d 357 . (Evidence procured under promise of immunity “can no more be regarded as the product of a free act of the accused than that obtained by official physical or psychological coercion.” ( 371 U.S. at 347-48 , 83 S.Ct. at 453).) Rogers v. Richmond (1961) 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (Uncounseled confession of defendant who was threatened that his wife would be brought in for questioning was involuntary.) See also, United States v. Huss (2d Cir. 1973) 482 F.2d 38 ; United States v. Laughlin (D.D.C.1963) 222 F.Supp. 264 ; and McGarrity v. Wilson (9th Cir. 1966) 368 F.2d 677, 679 (“Incriminating statements or a confession extorted by mental coercion are as involuntary as if they were obtained by violence or threats of violence.”).) 3

As Judge Duniway pointed out in United States v. Rothman (9th Cir. 1973) 492 F.2d 1260, 1263 ; “Where the consent [to a search] is obtained through a misrepresentation by the government, Bumper v. North Carolina, supra, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 . . ., or under inherently coercive pressure and the color of the badge, Johnson v. United States, supra, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 ; United States v. Marshall, 9 Cir. 1973, 488 F.2d 1169, 1188-1189 , such consent is not voluntary.” Moreover, coercion is implied when consent is obtained “under color of the badge,” and the Government must show that there was no coercion in fact. (United States v. Irion (9th Cir. 1973) 482 F.2d 1240, 1244 ; United States v. Page (9th Cir. 1962) 302 F.2d 81, 84 .)

The district court attempted to justify its conclusion that Mizera’s consent was voluntary by suggesting that “voluntariness” takes on a different meaning in the context of coerced confessions than it does in the context of consent to participation in monitoring or other activities protected by the Fourth Amendment. (Although the district court found that the threatened denial of medical treatment was not coercive in the present case, it said that it would have “great concern” if the case involved a con *794 fession or “the waiver of a right associated with a fair trial.”) This distinction is unfounded. Coercion does not evaporate with an assumed change in climate between the Fourth and Fifth Amendments. Nor does coercion become free choice when it is applied to obtain consent rather than to force a confession. (United States v. Rothman, supra, 492 F.2d 1260 .)

The panel’s effort to justify its conclusion is similarly unsuccessful. The panel postulates that the officers’ threats did not induce Mizera’s consent; rather, Mizera brought his plight upon himself. The officers, the panel says, simply required the defendant “to face up to the real world in order to obtain his cooperation;” that pressure is entirely appropriate, it adds, on analogy to pleas of guilty, quoting Brady v. United States (1969) 397 U.S. 742, 750 , 90 S.Ct. 1463, 1470 , 25 L.Ed.2d 747 .

The panel’s assumption that Mizera was guilty of a crime is unsupported by the record. Mizera has not been convicted of any crime, except by the rhetoric of the officers and the speculations of the panel. The Constitution does not give law enforcement personnel the right to decide guilt or innocence, nor does it give courts the power to make that determination with neither a guilty plea nor a trial. But even if Mizera had been guilty of the crime for which the officers threatened prosecution and conviction, his guilt would be irrelevant in deciding the coercion issue. 4 Coercion is not acceptable whether it is applied to persons who are ultimately found guilty or to those who are ultimately found innocent. Coercion is forbidden both because it is unacceptable police conduct in our justice system and because it tends to produce involuntary words and deeds. We should be ever mindful that “if we reflect carefully, it becomes abundantly clear that we can never acquiesce in a principle that condones lawlessness by law enforcers in the name of a just end.” (United States v. Huss (2d Cir. 1973) 482 F.2d 38, 52 .)

No analogy exists between the taking of a guilty plea by a court and the extraction of “cooperation” or a confession by law enforcement officers, without the presence of any judicial officer and without the presence of counsel. As Mr. Justice White said in Brady : “That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment.” ( 397 U.S. at 748 , 90 S.Ct. at 1468 .) “Since Gideon v. Wainwright, 372 U.S. 335 [ 83 S.Ct. 792 , 9 L.Ed.2d 799 ] (1963), it has been clear that a guilty plea to a felony charge without counsel and without a waiver of counsel is invalid. [Citations omitted.]” ( 397 U.S. at 748-49, n. 6 , 90 S.Ct. at 1469 .)

The officers effectively prevented Mizera from consulting counsel after he asked to do so. That deprivation cannot be brushed aside. His need for counsel was evident. 5 *795 Counsel would surely have revealed to him that the officers’ “compelling” statements were deceitful. The officers told Mizera that he would serve ten years, if convicted, knowing full well that ten years was the maximum penalty for Mizera’s alleged misdeed. The officers also assured Mizera of conviction, although they had to know that conviction is not a certitude. Even worse, the officers offered to drop any charges against Mizera when they had no legal power to promise immunity. Consent obtained by governmental misrepresentation is involuntary. (United States v. Rothman, supra, 492 F.2d at 1263 ; see Fuller v. United States (1967) 132 U.S.App.D.C. 264 , 407 F.2d 1199, 1213 (“Of course garnering a confession by artifice is no more permissible than achieving the same result by some cruder coercion.”).)

I would en banc this case to eradicate the intra-circuit conflict between Ryan and United States v. Rothman, supra, 492 F.2d 1260 , and its antecedents, and to bring Ryan in line with controlling Supreme Court authority. On the merits, I would reverse and remand Ryan for a new trial free from the tainted evidence. 6

. E. g., see Holmes v. Burr (9th Cir. 1973) 486 F.2d 55 ; United States v. Franks (6th Cir. 1975) 511 F.2d 25 ; United States v. Bragan (4th Cir. 1974) 499 F.2d 1376 .

. The district court’s factual findings are, of course, subject to the clearly erroneous standard of review. However, the district court’s ultimate conclusion that the consent was voluntary rests on a legal determination of the sufficiency of the evidence to support the conclusion. The standard of appellate review of this determination is the same as that applied in reviewing the sufficiency of evidence to sustain a conviction. (E. g., Channel v. United States (9th Cir. 1960) 285 F.2d 217, 220 .)

Under either formulation of the standard of appellate review, the district court’s conclusion of voluntariness is unsupported and is reversible error.

. “The human mind under the pressure of calamity, is easily seduced; and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, . . is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.’” (Bram v. United States (1897) 168 U.S. at 547 , 18 S.Ct. at 188 .)

. The panel relies on Holmes v. Burr, supra, where there was no question of coercion. It also uses United States v. Lue (9th Cir. 1974) 498 F.2d 531 , and Hampton v. United States (1976) 425 U.S. 484 , 96 S.Ct. 1646 , 48 L.Ed.2d 113 which are entrapment cases, holding that certain law enforcement techniques that take advantage of a subject’s “predisposition” are not violative of due process. Here, the fact that extreme pressure had to be used to induce cooperation belies any notion that Mizera was predisposed to cooperate.

. As Mr. Justice Sutherland observed in Powell v. Alabama (1932) 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 :

. It is noteworthy that the Government’s respect for Mizera’s constitutional rights has been deficient in more than one instance. The panel observes that Mizera’s office and residence were “bugged” prior to his grant of consent on May 19, 1972. Nevertheless, because the evidence culled from this source was said to be available from independent sources, the panel rules that its admission did not constitute error. (United States v. Ryan, 782 F.2d 788 at p. 548 (1976).)