Anthony N. Matteo v. Superintendent, Sci Albion the District Attorney of the County of Chester the Attorney General of the State of Pennsylvania

McKEE, Circuit Judge,

with whom Judges SLOVITER and ROTH join, concurring.

I join in Parts I and II of the majority opinion, but I believe that the state court’s Sixth Amendment analysis was contrary to clearly established law as decided by the Supreme Court. However, I join in the judgment of the court because I agree that the erroneous admission of the rifle into evidence was harmless in view of the quality and quantity of admissible evidence that connected Matteo to this murder. I write separately to voice my disagreement with the majority’s application of the standard we are adopting. I believe that Massiah v. United States, 377 U.S. 201, 206 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), compels a different resolution of the agency inquiry we must undertake to resolve Matteo’s claim. In Massiah , the Court held that, absent a valid waiver, a government agent may not “deliberately elicit” incriminating statements from an accused after the right to counsel has attached. In holding that the outcome of the state court’s inquiry was not compelled by “clearly established Federal law” I believe we are demanding a level of precision and specificity that is neither required by the language of AED-PA, nor consistent with reasoned use of Supreme Court precedent.

I.

The majority holds that “contrary to” review is not warranted here because there is no Supreme Court case defining the term “government agent.” That conclusion illustrates the many problems buried in the analytical minefield lurking beneath the surface of AEDPA. One of the unresolved issues created by AEDPA is the level of specificity the Supreme Court must use in fashioning a rule in order for it to be applied as “clearly established Federal Law” under AEDPA. In resolving that issue we must consider that rules fashioned by the Supreme Court are often intended to reach beyond the confines of the particular case in which the rule was enunciated.

In Massiah , the Court announced a specific rule which requires a case-by-case inquiry for determining whether the government has violated a defendant’s Sixth Amendment right to counsel. See United States v. Henry, 447 U.S. 264, 270 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980) (“The question here is whether under the facts of this case a Government agent ‘deliberately elicited’ incriminating statements from *906 Henry within the meaning of Massiah”) (emphasis added). The Court has repeatedly rejected efforts to distinguish or limit Massiah’s applicability. See eg. Brewer v. Williams, 430 U.S. 387, 390 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977) (“The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States.”); Maine v. Moulton, 474 U.S. 159, 179 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985) (“reaffirming] the holding” in Massiah after rejecting the state’s attempt to limit it and distinguish the case on its facts); Henry, 447 U.S. at 271-72 , 100 S.Ct. 2183 (rejecting argument that it modified the Massiah rule in Brewer v. Williams rather than applying it to a new factual setting). Though a court must undertake a specific inquiry into the facts of the case before it, the inquiry is governed by the rule enunciated in Massiah, and I believe that rule compels a different outcome here.

In Maine v. Moulton, 474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985), the Supreme Court succinctly stated the analysis that is required under Massiah and its progeny.

[T]he State’s attempt to limit our holdings in Massiah and Henry fundamentally misunderstands the nature of the right we recognized in those cases. The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State.... [T]his guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation.

474 U.S. at 176 , 106 S.Ct. 477 .

There are, of course, fact patterns that transcend the parameters that can fairly be said to have been erected by Supreme Court case law. When that situation occurs Supreme Court decisions do not compel a particular result without an extension of a particular principle. See Kuhlmann v. Wilson, 477 U.S. 436, 456 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986) (answering in the negative the question, explicitly left open in Henry and Moulton , whether the Sixth Amendment forbids admission into evidence of an accused’s statements to a jailhouse informant who was “placed in close proximity but [made] no effort to stimulate conversations about the crime charged”). However, this is not such a case.

As the majority notes, the Supreme Court has set forth factors which are “important” in determining whether the Mas siah standard has been violated. Henry, 447 U.S. at 270 , 100 S.Ct. 2183 . However, the infinite number of ways that investigators and informants can combine to elicit information from an unsuspecting defendant precludes us from establishing any litmus test for determining when an informant is acting as a government agent under Massiah. Compare Brewer, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (police officer gave speech designed to extract incriminating responses from defendant); with Henry, 447 U.S. 264 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (agent was a paid jailhouse informant who was directed not to question the defendant) and Moulton, 474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (agent was a codefendant out on bail who had “cut a deal” with the government and was directed to engage the defendant). Thus, as the majority points out, the Eleventh Circuit Court of Appeals has noted that “[t]here is, by necessity, no bright-line rule for determining whether an individual is a government agent for purposes of the sixth amendment right to counsel.” Depree v. Thomas, 946 F.2d 784, 793 (11th Cir.1991) (emphasis added). See Op. at 893. “Contrary to” review cannot be reserved only for those cases that are eerily identical to Supreme Court precedent, and I do not interpret the majority’s opinion as suggesting any such evisceration of “eon- *907 trary to” review under AEDPA. See Op. at 889.

II.

The majority’s analysis focuses upon the factors which the Supreme Court relied upon in Henry in finding a Sixth Amendment violation there. In Henry , a paid informant who appeared to be no more than a fellow inmate was acting under instructions from the government to elicit incriminating statements from the defendant while he was in custody. See Henry, 447 U.S. at 270 , 100 S.Ct. 2183 . The majority emphasizes that here, there was no “quid pro quo” exchange between Lubking and the police because Lubking was “not a suspect in the crime, had little to gain by cooperating with the investigation and in fact received no compensation.” Op. at 894. However, Lubking believed that his rifle was the murder weapon and he cooperated to “keep himself out of trouble” and to allay his fears about being connected with the murder. App. at 153-54a, 157a, 168a, 269a, 278a, 291a. Lubking said that he contacted his lawyer, after being called by Matteo, “Q]ust to keep my butt clean.” App. at 157a. When asked why he agreed to help, Lubking reiterated: “To get my name out of any problems that might have happened. I mean, really, to keep my butt clean.” App. at 291a. Although Lubking did not have a “deal” with the government, his motivations make him no less capable of being an agent of the investigating authorities. Lubking was not an uninterested citizen so driven by altruism that he offered to tell police what he knew about the crime they were investigating. To be sure, Lubking was also not a coconspirator or cellmate hoping to win favors from police. However, Lubking’s situation is no less analogous to cases where the Court has found an agency relationship. Rather than being paid, or being assured that his cooperation would be made known to a sentencing judge, Lubking attempted to assure himself that he would remain “clean” altogether. He had no less incentive to assist the police than one hoping for a reduced sentence, and the police made good use of his offer to assist. See Henry, 447 U.S. at 270 , 100 S.Ct. 2183 .

Nothing in Massiah or its progeny suggests that the Supreme Court intended to restrict an agency analysis under the Sixth Amendment as narrowly as the majority’s reasoning requires. The fact of an arrangement between the government and the informant pursuant to which “the informant [i]s charged with the task of obtaining information from an accused” can be sufficient to establish the agency required under Massiah. See Henry, 447 U.S. at 273 , 100 S.Ct. 2183 . In concluding that Lubking was not acting as a government agent during either call from Matteo the majority focuses on the instructions the police initially gave Lubking regarding the operation of the recording equipment, and their instructions to not directly elicit incriminating information from Matteo. If that were all that appeared on this record I would agree with the majority’s conclusion that there was no agency; 1 but there is more. Matteo made a second call, and Lubking’s role during that call was qualitatively different from the role he played during the first call. I believe the majority fails to give sufficient weight to the totality of the circumstances surrounding Lubking’s recording of the second telephone call. Moreover, both the first and second call came after Chief Deputy District Attorney Joseph Carroll had informed Lubking that “the purpose of the interception was to obtain potential evidence in a prosecution against Mr. Matteo for murder.” App. at 169a. Carroll told Lubking that the police wanted to recover the gun which they believed to be the murder weapon, “but in addition I told him we are not only interested in finding the gun, but also recording the conversation.” App. at 181a.

*908 Despite the initial instructions to Lubk-ing to act as a passive listener, Detective Sergeant Michael Carroll subsequently-charged Lubking with the task of obtaining more specific directions as to the location of the rifle. The instructions that were given following the initial, unsuccessful search transformed Matteo from informant to -agent. After Matteo’s directions in the initial call proved insufficient to direct the police to the hidden rifle, Detective Michael Carroll escorted Lubking back to Lubking’s home where Carroll knew Matteo would call a second time to check on the results of the search. Carroll explained his instructions to Lubking as follows:

Q: What if anything did you say to Lubking regarding the second phone call?

Carroll: I told him that I did not want him questioning Mr. Matteo outside the area of direction to where the gun was located. I told him if he could get us more specific directions, that would be helpful. If he wasn’t able to get us more specific directions under the narrow area we allowed him to discuss, that that would be all right, also ...

Q. And you said, and again you have told us this, but you said basically try to get him to be as specific as you can, but stay in that area of facts, don’t go outside of those factual areas; am I correct on that?

Carroll: Yes.

App. at ,243a, 248a.

Thus, Lubking’s efforts to get Matteo to be more specific about where the rifle had been hidden during the second telephone call must be attributed to the government. The government told him to attempt to get Matteo to be more specific and that is what Lubking did. Matteo relied upon his relationship with Lubking to respond to Lubking’s probing just as police hoped he would.

III.

This record clearly establishes that Lubking did “directly elicit” incriminating information from Matteo, and I believe the state court’s conclusion to the contrary is “contrary to” the conclusion that is required by Massiah, Henry, and their progeny. Lubking, no less than the informant in Henry , was more than a “listening post” during the second phone conversation. The following exchange occurred during the second telephone call:

Matteo: It’s Anthony. What’s up?

Lubking:I couldn’t find it. You oughta get — I need more explicit — this is—

Matteo: What did you say?

Lubking: I couldn’t find it.

Matteo: What do you mean you couldn’t find it?

Lubking: Well, you said the bridge.

Matteo: Yeah.

Lubking: And there’s two bridges there. There’s a sewer pipe and there’s—

Matteo: Yeah. It goes under that cement bridge.

Lubking. Yeah. On the far side, on the side all the way closer to your house?

Lubking: ... I looked there too, but they — is it in the water?

... So it’s not in the grass?

... So it’s almost underneath the bridge?

... Was the water frozen when you dropped it?

App. at 141a-147a. Unlike the first conversation where, as the majority states, Lubking said “virtually nothing at all” in response to Matteo’s directions, see Op. at 896, Lubking took “affirmative steps” during the second conversation to elicit infor *909 mation about the exact location of the rifle. See Kuhlmann, 477 U.S. at 459 , 106 S.Ct. 2616 (defendant may establish a constitutional violation by “demonstratfing] that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.”). These questions were more than “a few clarifying questions.” Op. at 897. They were pointed inquiries prompted by Detective Carroll’s need for more specific information. In Henry , the Court stated: “By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry’s Sixth Amendment right to counsel.” 447 U.S. at 274 , 100 S.Ct. 2183 . Here, all that is necessary is to substitute “Matteo” for “Henry.” Lubking’s “monosyllabic rejoinders,” Op. at 896, during the second conversation cannot transform his role into that of a listening post. Indeed, insofar as the location of the rifle was concerned, he was more of an interviewer.

Nor am I persuaded by the majority’s attempts to distinguish this case from Moulton . Given the circumstances here, it is immaterial that Matteo voluntarily called Lubking. See Moulton, 474 U.S. at 174-75 , 106 S.Ct. 477 (noting that “the identity of the party who instigated the meeting at which the Government obtained incriminating statements [is] not decisive or even important”). The fact that Matteo sought to discuss the location of the gun does not preclude a finding that the information was surreptitiously obtained. As the Supreme Court noted in Moulton , once the government is aware that the sole topic of discussion between the agent and the accused is going to be the pending charge, “a Sixth Amendment violation[i]s inevitable.” Id. at 177 n. 14, 106 S.Ct. 477 . Here, as in Moulton , the government “knowing[ly] exploited]” an opportunity to confront Matteo in the absence of counsel in violation of his Sixth Amendment rights. Id. at 176 , 106 S.Ct. 477 .

V.

I applaud the majority’s efforts to extract a workable standard from this inart-fully drafted statute even though I disagree with the majority’s conclusion. The Supreme Court’s metaphorical retort that AEDPA is not exactly a “silk purse,” see Op. at 887, is all too accurate. The difficulty of interpreting this statute is evidenced by the number of competing interpretations given the statute by the courts of appeals that have interpreted it, as well as by the divergent views expressed here. Although it is not implicated here, I cannot help but express concern that such an elusive and inartful statute will often be the basis for deciding if someone was “properly” sentenced to death in a state court. Given the divergent interpretations of this statute one can only hope that Congress will clarify its intent, or that the Supreme Court will provide a single explanation of it.

However, that day is not yet here and, as noted above, that problem is not implicated here. I am convinced that the state court’s holding in this case was “contrary to” the “clearly established” rule of Massi-ah. However, I concur in the judgment of this Court because the resulting error was harmless.

. If that were the situation there would still be "clearly established Federal law,” but the slate court's ruling that there was no agency would not be "contrary to” it.