concurring in part and dissenting in part:

I concur in all of Judge Kennedy’s opinion except that portion holding that the defendants made a knowing and intelligent waiver of their fifth amendment privilege against self-incrimination before submitting to interrogation by federal agents and testifying before the federal grand jury. As Judge Kennedy has pointed out, all of the defendants had previously made extensive statements under a state grant of immunity. Federal agents, according to their testimony, not only gave the standard Miranda warnings, but also advised the defendants, variously, as follows: that “any grants of immunity promised to them by any state court ... was [sic] not binding on the Federal Court and, therefore, did not apply on the Federal Court, and, therefore, did not apply in the Federal investigation” (TR 19-20); that the state-court-granted immunity would or did “not apply in Federal Court” (TR 133); or that “no deals whatsoever in state court would be — would apply or be binding in Federal Court” (TR 148). In the circumstances of this case, I believe that these statements were fatally misleading. They failed to make clear that federal authorities were precluded from making use of the statements that the defendants had already given under a promise or grant of immunity by state authorities. See Murphy v. Waterfront Commission, 378 U.S. 52 , 79 n. 18, 84 S.Ct. 1594, 1609 , 12 L.Ed.2d 678 (1964). Indeed, the advice suggests that “all deals are off” and that anything the state promised was of no effect. The logical implication is that the federal authorities might use the statements already made. Had the defendants been warned that no use whatever could be made of those statements by federal authorities, they might well have elected to remain silent.

In Miranda, the Supreme Court reaffirmed the proposition that the privilege against self-incrimination “has always been ‘as broad as the mischief against which it seeks to guard.’ ” 384 U.S. at 459-60, 86 S.Ct. at 1619-20 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562 , 12 S.Ct. 195, 198 , 35 L.Ed. 1110 (1892)). Any waiver of the privilege must be “made voluntarily, knowingly and intelligently.” Id. at 444, 86 S.Ct. at 1612. In this case the defendants’ waiver of the right to remain silent was not knowing and intelligent because the advice of the agents would have reasonably led the defendants to believe that, for purposes of the federal prosecution, their silence had already been broken. For that reason, I conclude that the district court erred in failing to suppress their statements.