Petitioners Brief — United States v. Henry

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Suprame Court, U.S.

Es eS a

No. 79-121 dEC 8S 1979

.JR., CLERK

Iu the Supreme Court of the Wuited States

OCTOBER 'TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

BILLY GALE HENRY

ON WRIT OF CERTIORARI TO THE UNITED STAT@ZS COURT

OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

DAVID B. SMITH

Attorney

Department of Justice

Washington, D.C. 20530

Opinions below

a cescnehinaieapecaitialonicn

Question presented

Constitutional provision involved

Statement

Summary of argument

Argument

I. No Sixth Amendment violation results

from mere association or general con-

versation between a defendant and an

ARETE TREE: SOR EAE Ri eeken SoPs CR ES

A. A Sixth Amendment violation does

not occur unless the government

has caused the accused to be ques-

tioned about the offense ..................

B. The policies of the Sixth Amend-

ment do not support an extension

of Massiah and Brewer to bar the

admission of statements made to

an informant who did not inter-

rogate the accused or otherwise

elicit the statements ......................

1. The Court has generally rec-

ognized the Sixth Amendment

right to the assistance of coun-

sel in the context of “trial-like

confrontations” between the

government and the accused in

which the accused is confront-

ed with complex legal proceed-

ings or an expert adversary... _

Page

non NY —

0 mm

Argument—Continued Page Cases—Continued Page

8 Gideon v. Wainwright, 372 U.S. 335........ 28

oe Gilbert v. California, 388 U.S. 263 ........ 31

pport a broad expansion Hami

of the Massiah exclusionary amilton v. Alabama, 368 U.S. 52 .......... 29

SAE Se Oe 39 Hampton v. United States, 425 U.S. 484.. 37

Hoffa v. United States, 385 U.S. 293........ 37

3. The general rule that no Sixth Jackson v. Metropolitan Edison Co., 419

Amendment violation occurs in tg RERE SN in ree 48

the absence of interrogation . Johnson v. Zerbst, 304 U.S. 458 ........-.... 28

applies in the jail setting.......... 40 Kirby v. Illinois, 406 U.S. 682 ........--.------ 26

II. Even if the informant had violated his Lanza v. New York, 370 U.S. 189 ............ 41

instructions from the FBI agent not to Massiah v. United States, 377 U.S. 201..9, 10, 15,

question respondent about his offense, 23, 24, 25, 32, 33, 37

this questioning would not have con- McLeod v. Ohio, 381 U.S. 356 ............------ 11, 26

stituted government interrogation ........ 45 Mempa v. Rhay, 389 U.S. 128 ...........-..-.-- 30

Michigan vy. DeFillippo, No. 77-1680

Conclusion. eveeeseeeeeeeeeeeseessnncccceeeeeeeeeett 51 (June 26, 1979) AT

Michigan v. Tucker, 417 U.S. 488 ............ 26

dies ee Miller v. California, 392 U.S. 616 ....... 40, 43

Milton v. Wainwright, 407 U.S. 371 ........ 42

Argersinger v. Hamlin, 407 U.S. 25........ 28 Miranda v. Arizona, 384 U.S. 486 ...........- 34, 41

Beatty v. United States, 389 U.S. 45... 11, 26 Moore v. Illinois, 484 U.S. 220 .............--- 28, 30

Beckwith v. United States, 425 U.S. 341.. 34, 41 } Moose Lodge v. Irvis, 407 U.S. 168 ........ 48

Bell v. Wolfish, No. 77-1829 (May 14, | Oregon v. Mathiason, 429 U.S. 492 ........ 34

it) Pr eee fra A DCE 40 Parker v. Randolph, No. 78-99 (May 29,

Brewer v. Williams, 430 U.S. 387 ............ passim a hae a. 26

Burdeau v. McDowell, 256 U.S. 465 — 48 People v. Cardona, 41 N.Y.2d 333, 360

Coleman v. Alabama, 399 U.S. 1 .............. 29, 30 N.E.2d 1806, 392 N.Y.S.2d 606 ............ 46

Corngold v. United States, 367 F.2d 1.... 49, 50 Powell v. Alabama, 287 U.S. 45 .............- 28, 31

Edelman v. Jordan, 415 U.S. 651 ............ 26 Reitman v. Mulkey, 387 U.S. 369 ............ 48

Escobedo v. Illinois, 378 U.S. 478 ........ 25, 33, 34 Rochin v. California, 342 U.S. 166 .......... 37

Fare v. Michael C., No. 78-334 (June 20, Schmerber v. California, 384 U.S. 757... 31

TED irconsnssnhinsvosnamiauisielndvelbinlatienihecatoens 28 Schneckloth v. Bustamonte, 412 U.S. 218.. 30

Faretta v. California, 422 U.S. 806 ........ 31 Scott v. Illinois, 440 U.S. 867 ..........-------- 31

Flagg Bros. v. Brooks, 436 U.S. 149........ 48 Sherman v. United States, 356 U.S. 369.. 50

Gerstein v. Pugh, 420 U.S. 108 ................ 30 Spano v. New York, 360 U.S. 3165 ............ 24, 35

Iv |

Cases—Continued Page

State v. Ferrari, 112 Ariz. 324, 541 P.2d

Ta nuance 49

State v. McLeod, 1 Ohio St. 2d 60, 203

IN I gos ci seit ances ciacdiesiipsiccladamniaan 26

State v. Smith, 107 Ariz. 100,-482 P.2d

ARTISTES EA arses a ee 49

United States v. Aloisio, 440 F.2d 705,

cert. denied, 404 U.S. 824 .................... 49

United States v. Ash, 413 U.S. 300.......... 28, 29,

35, 37

United States v. Barfield, 461 F.2d 661.... 41

United States v. Clegg, 509 F.2d 605...... 49

United Staies v. Hayles, 471 F.2d 788,

cert. denied, 411 U.S. 969 0... 44

United States v. Hearst, 563 F.2d 1331,

cert. denied, 485 U.S. 1000 -.................. 41, 44

United States v. Janis, 428 U.S. 483........ 48

United States v. Luciow, 518 F.2d 298.... 49

United States v. Massiah, 307 F.2d 62...... 23, 25

United States v. Mekjian, 505 F.2d 13820.. 49

United States v. Rodriguez, 596 F.2d 169.. 49

United States v. Russell, 411 U.S. 423...... 37

United States v. Stonehill, 274 F. Supp.

420, aff’d, 405 F.2d 738, cert. denied,

PEE SITET ecshscutcinokciedesctaevsalboiebensaomnnaaeien 49

United States v. Valen, 479 F.2d 467,

cert. denied, 419 U.S. 901 —............... 49, 50

United States v. Wade, 388 U.S. 218........ 30

United States v. Washington, 431 U.S.

ee Ln SPEC RON. NeW Ons 22

United States v. Wedelstedt, 589 F.2d

339, cert. denied, No. 78-1883 (June 4,

I ee 49

United States v. White, 401 U.S. 745........ 37, 39

Cases—Continued Page

United States ex rel. Milani v. Pate, 425

F.2d 6, cert. denied, 400 U.S. 867........ 50

Watts v. Indiana, 338 U.S. 49 -................. 32

Weatherford v. Bursey, 429 U.S. 545...... 26, 44

White v. Maryland, 373 U.S. 59 -..............- 29

Wilson v. Henderson, 584 F.2d 1185,

cert. denied, No. 78-6610 (June 18,

IE dinette acsscirpetialbledacestencssonnnaniennanciniee 43, 51

Constitution, statutes and rule:

United States Constitution:

Fourth Amendment ................--...--..--- 48

Fifth Amendment ....17, 34, 35, 36, 37,39, 40

| ane passim

Fourteenth Amendment .................... 48

I hia cin attnaeitabeeiains 3

Be Ree RD asic scernsinenteninsinenipnnizmnin 3

I uisinaad 6, 10, 14

PU Be I ic ca nnpeciiecetckeasteawencnsinde 12

Miscellaneous:

Developments in the Law—Confessions,

79 Harv. L. Rev. 938 (1966) .............. 26

Dix, Undercover Investigations and Po-

lice Rulemaking, 53 Tex. L. Rev. 203

a ate lated ian 41

Enker & Elsen, Counsel for the Suspect:

Massiah v. United States and Escobedo

v. Illinois, 49 Minn. L. Rev. 47 (1964) .. 32, 33,

34, 37

Funk & Wagnalls New Standard Dic-

BN i I Saoictsinctnttarntacenacunecctecnncmnts 24

Miscellaneous—Continued Page

Grano, Rhode Island v. Innis: A Need to

Reconsider the Constitutional Premises

Underlying the Law of Confessions, 17

Am. Crim. L. Rev. 1 (1979) ..32, 33, 36, 37, 38

Kamisar, Brewer v. Williams, Massiah,

and Miranda: What Is “Interroga-

tion”? When Does It Matter?, 67 Geo.

eS | ns emo a. LS. 35-36

3 Murray, A New English Dictionary

GE GID sesecuninisssnccctunasacanainamiedbcmaaa 24

Restatement (Second) of Agency (1958).. 47

Webster's New International Dictionary

I WR OD pet snicteiccccisiccescoassieainiansnmuate 24

Webster’s New International Dictionary

CR A ID ecieereteacennnanatcaceane 21, 24

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-121

UNITED STATES OF AMERICA, PETITIONER

Uv.

BILLY GALE HENRY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

24a) is reported at 590 F.2d 544. The memorandum

order of the district court (Pet. App. 27a-51la) is not

reported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

25a) was entered on December 26, 1978. The govern-

ment’s petition for rehearing was denied on March 30,

1979 (Pet. App. 26a). On June 14, 1979, the Chief

Justice extended the time within which to file a peti-

tion for a writ of certiorari to and including July 28,

(1)

1979. The petition was filed on July 25, 1979, and

was granted on October 1, 1979 (A. 86). The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether respondent’s Sixth Amendment right to

assistance of counsel was violated by the admission of

statements he made in the course of general con-

versation with a cellmate who had agreed to act as a

government informant but who had been instructed

not to question respondent.

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Con-

stitution provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have compul-

sory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his

defence.

STATEMENT

1. On August 28, 1972, the Janaf Branch of the

United Virginia Bank/Seaboard National was rob-

bed at gunpoint by two masked men who entered

shortly after opening, as the bank’s employees were

processing the night deposits (A. 12-14, 16-17;

Tr. 10-12, 35-386). Respondent was indicted on

charges of armed robbery of the bank, 18 U.S.C.

2113(a) and (d), and was incarcerated prior to trial

in the Norfolk City Jail.

Shortly thereafter Gerald Coughlin, an FBI agent

who participated in the investigation of the Janaf

bank robbery, contacted Edward Nichols (Pet. App.

57a). At that time, Nichols, who had previously

acted as a paid FBI informant, was incarcerated in

the Norfolk City Jail on local forgery charges (id.

at 57a-58a). Nichols informed Coughlin that he was

being held in the same cell block with various federal

prisoners who were awaiting trial, including respond-

ent (id. at 58a). Agent Coughlin asked Nichols to be

alert to any statements made by these persons about

the charges against them, but he specifically instructed

Nichols not to initiate conversation with or question

them regarding the charges against them (7d. at 58a,

60a). Nichols later informed agent Coughlin that

respondent had engaged him in conversation, during

the course of which respondent had described how the

bank robbery had occurred and sought Nichols’ as-

sistance in making contact with some people outside

of the jail when Nichols was released (id. at 58a-

59a). The FBI paid Nichols for furnishing this in-

formation (id. at 59a).

1 Nothing in the record indicates that Coughlin contacted

Nichols in order to gain evidence about respondent’s involve-

ment in the Janaf bank robbery. To the contrary, Coughlin’s

statement suggests that he was not aware that respondent

and Nichols were in the same cellblock until Nichols informed

him of this fact (see Pet. App. 58a-59a).

2. Respondent was tried before a jury in the Nor-

folk Division of the United States District Court for

the Eastern District of Virginia. Several bank em-

ployees described the robbery, which was carried out

by two men wearing green overalls, sneakers, and

masks (A. 12-17; Tr. 10-12, 26-28, 35-40). One

employee observed the robbers drive away in a tan

Ford automobile with Virginia license BBL-373

(Tr. 38-39) and also observed a third man who

had been waiting in the automobile (Tr. 40). The

bank employees could not identify the men who

entered the bank because they were wearing masks

(Tr. 10). An employee of a nearby business also

testified that he observed the third man in the car.

This witness had previously identified one of the two

men who had been in the bank as someone other

than respondent (A. 18-19; Tr. 47-49), but he could

not describe the other man who had been in the bank

(A. 19-20; Tr. 50).

An FBI agent testified that about an hour after

the robbery, agents searching the area near the bank

discovered the getaway car, which had been left il-

legally parked, with the doors ajar (Tr. 72-74).

When the agents searched the car, they discovered a

rent receipt indicating money received from one Allen

R. Norris and a lease for a house on Wailes Avenue

in Norfolk (Tr. 74-76). Shortly thereafter, two men

subsequently convicted of participating in the rob-

bery were arrested at the rented house, where agents

also discovered the proceeds of the robbery, as well as

the guns and masks the robbers had employed (Tr.

78-82). Other witnesses testified that respondent had

rented the house on Wailes Avenue under the assumed

name of Allen R. Norris, that his palm print was

identified on the copy of the lease agreement found

in the getaway car, that respondent had been seen

at the rented house before the robbery with another

man, identified as John Luck (one of the two men

previously convicted of participation in the robbery),

and that respondent, again under an assumed name,

had ordered parts for a police radio scanner found

at the rented house (A. 37-48; Tr. 154-159, 167, 169-

170, 177-181, 182-185, 190-192, 196).

Nichols, the informant whom FBI agent Coughlin

had contacted at the Norfolk City Jail, also testified

at trial, without objection. He stated that respond-

ent had said that he went to the Janaf bank several

times before the robbery, on one occasion to see who

opened the vault. Nichols also testified that respond-

ent had described the robbery to him and had stated

that the only thing the prosecution had connecting

him to it was the rent receipt (A. 29, 30; Tr. 185-136,

138). Nichols testified that FBI agent Coughlin did

not request him to ask respondent specific questions

(A. 28-29; Tr. 135).

Joseph Sadler, who had also been respondent’s cell-

mate, testified that respondent told him that he (along

with a man named “Luck” or “Lucky,” and another

man whom he did not name) had robbed a bank and

that he had hit one of the bank employees with a

gun (A. 33; Tr. 142). Sadler stated that he had

informed the FBI of respondent’s statements on the

advice of his attorney in relation to his own case

(A. 33-34; Tr. 143-144).

Respondent was convicted and sentenced to im-

prisonment for a term of 25 years (A. 50; Tr.

249). His conviction was affirmed by the court of

appeals in a per curiam order, 483 F.2d 1401 (1973),

and certiorari was denied, 421 U.S. 915 (1975).

3. On August 28, 1975, respondent moved to va-

cate his sentence pursuant to 28 U.S.C. 2255. Among

other grounds for relief, respondent alleged for the

first time that the introduction of Nichols’ testimony

violated his right to counsel.* Respondent alleged

(A. 53, 56-57, 65; see also A. 75-76) that the FBI may

have placed him in the same cell with Nichols and

Sadler, that Nichols had “interrogated”? him, that

the FBI had sent Nichols to “question” him or “en-

gage [him] in conversation” about the case, and that

Nichols had come back to visit respondent at the

Norfolk City Jail and later at the Portsmouth City

Jail to ask him questions about the crime.

2 Respondent’s pro se petition (A. 51-71) also alleged

that the government had knowingly permitted the introduc-

tion of perjured testimony by Joseph Sadler, violated the

court’s pretrial discovery order, made prejudicial statements

in closing argument, and failed to disclose exculpatory mate-

rial; the petition also alleged that respondent’s counsel had

not rendered effective assistance.

In an amended pro se complaint filed June 27, 1977 (A.

71-81), respondent renewed these allegations and further

contended that his arrest warrant was not supported by

probable cause, his right to counsel was violated when FBI

agent O’Hara spoke with him in the Marshai’s Office after

his arrest, his competency to stand trial was destroyed by

adverse jail conditions, a hearing should have been held on

his competency to stand trial, the search of the Wailes Ave-

nue residence was not supported by probable cause, and his

sentence was illegal.

The district court denied the motion without a

hearing. The court of appeals, in an unpublished

order (Pet. App. 53a-56a), remanded the case for an

“evidentiary inquiry” to determine, inter alia, whether

Nichols was acting as a government agent during

his jail cell conversations with respondent.

On remand, FBI agent Coughlin submitted an af-

fidavit (Pet. App. 57a-60a) describing his relation-

ship with Nichols. Coughlin stated (id. at 58a) that

he had contacted Nichols on November 21, 1972, at

the Norfolk City Jail. According to the affidavit,

Nichols told Coughlin that he was in the same cell-

block as respondent and a number of other federal

prisoners awaiting trial. Coughlin stated that he

recalled telling Nichols to be alert to any statements

these individuals might make about the charges pend-

ing against them, but that he specifically told Nichols

not to question respondent or the others about the

charges against them. Coughlin also stated that

Nichols was told not to initiate any conversations

with respondent regarding the bank robbery charges,

but that if respondent or the other federal inmates

engaged him in conversation, he was to pay attention

to their statements.

Coughlin contacted Nichols again on December 6,

1972, after Nichols had been released from the Nor-

folk City Jail. Nichols told Coughlin (Pet. App. 58a-

59a) that respondent had engaged him in conversa-

tion while they were in jail together and had talked

about the bank robbery charges against him. Nichols

also said, according to the affidavit, that respondent

had told him that he and his partner had been looking

at the Janaf bank for some time and that respondent

described to Nichols how the robbery had occurred.

Nichols also told Coughlin that respondent had re-

quested Nichols to contact a woman named “Hink”

after Nichols was released from jail because respond-

ent wanted to use the woman as a go-between with

his partner, who he said was in the Portsmouth City

Jail. Finally, Nichols told Coughlin that respondent

had asked him to obtain a handcuff key and floor plans

to the Norfolk City Jail and the Marshal’s Office be-

cause respondent wanted to break out of jail.*

Coughlin stated in the affidavit that Nichols made

contact with the woman “Hink” on December 7.

Nichols was paid by the FBI for the information he

had furnished and for expenses and services in con-

nection with respondent’s requests (Pet. App. 59a).

Coughlin also averred (id. at 59a-60a) that he had

not requested that Nichols be placed in respondent’s

cell and had not interceded with jail officials on

Nichols’ behalf. He also stated (id. at 60a) that he

never interviewed Joseph Sadler and never requested

anyone at the Norfolk City Jail or Portsmouth City

Jail to place Sadler and respondent in the same cell.

Nicholas O’Hara, the FBI agent in charge of the in-

vestigation of the bank robbery, also submitted an af-

fidavit (A. 84-85). He stated that he was aware

that agent Coughlin had obtained information from

an informant (Nichols) but that, to his knowledge,

this informant was not directed by either Coughlin

or O’Hara to solicit information from respondent.

3 Nichols did not testify at trial about respondent’s request

for assistance after Nichols was released from jail.

O’Hara also stated in his affidavit that Sadler, in an

interview on February 28, 19738, in the Norfolk City

Jail, had furnished him with information that re-

spondent had “volunteered” to Sadler. O’Hara

stressed that he did not direct Sadler to seek out

and obtain information from respondent and that he

did not contact the authorities at the Norfolk and

Portsmouth City Jails to arrange for any particular

person to be placed in a cell with respondent or to

arrange for respondent’s transfer while in custody.

Nor, O’Hara said, had he made any contact on these

matters with the United States Marshal’s Office,

which was responsible for arranging accommodations

for federal prisoners.

The district court accepted the FBI agents’ state-

ments that they had not requested Nichols to question

respondent or to engage him in conversation and had

only asked Nichols to listen to statements respondent

might make within his hearing and to report them.

The court also noted (Pet. App. 38a, 39a) that Nichols

had testified at trial that agent Coughlin had not

requested that he ask questions of respondent (see

A. 28-29; Tr. 135). Finally, the court found (Pet.

App. 39a) that respondent’s allegation that the FBI

had something to do with where he was housed or

with having Nichols placed in a cell with him was

“clearly untrue.”

On the basis of these factual findings, the district

court concluded (Pet. App. 39a) that Nichols’ testi-

mony at trial did not violate respondent’s Sixth

Amendment right to counsel under this Court’s de-

cision in Massiah v. United States, 377 U.S. 201

(1964). The court noted that Massiah had held that a

defendant’s own incriminating words “which federal

agents had deliberately elicited from him after he

had been indicted and in the absence of counsel”

could not be used against him (Pet. App. 39a n.5,

quoting 377 U.S. at 206). But in this case, the court

observed (id. at 39a), “the evidence clearly shows

Nichols was not employed to question [respondent] or

to seek information from him, but to merely report

what he heard. There is no requirement an accused

be furnished counsel when he wishes to shoot off his

mouth.” *

4. A divided panel of the court of appeals reversed

and remanded with instructions that respondent be

released from custody unless the government elects

to retry him (Pet. App. la-24a). The majority

opinion (7d. at 5a) did not read the decision in Mas-

siah to depend on a finding that any action by the

informant, apart from his “mere presence,” had in-

duced the damaging remarks, although it did note

(id. at 5a n.2) that the opinion of the court of ap-

peals in Massiah indicated that the informant in that

case had affirmatively solicited information about the

*The district court also concluded (Pet. App. 39a-40a)

that, even assuming Nichols’ testimony was subject to exclu-

sion, respondent had not objected to the testimony at trial

and could not raise an objection to the admission of this

evidence in a Section 2255 proceeding. The court distinguished

Massiah, which “dealt with the admissibility of evidence, ob-

jected to, on direct appeal and not a collateral attack on its

.admission” (id. at 39a n.5). The court also held that, in

any event, admission of the testimony was harmless error.

charges pending against the accused. The majority

opinion (Pet. App. 5a) also read this Court’s sum-

mary: reversals in McLeod v. Ohio, 381 U.S. 356

(1965), and Beatty v. United States, 389 U.S. 45

(1967), to stand for the proposition that the rule in

Massiah applies to “all incriminating statements ob-

tained by government agents after indictment and in

the absence of counsel,” not “‘only to those statements

induced by such agents” (Pet. App. 5a; emphasis in

original).

The majority opinion (Pet. App. 6a) also rejected

the argument that the decision in Brewer v. Williams,

430 U.S. 387 (1977), had limited Massiah and its

progeny to situations in which the government agent

had directly questioned the accused about his par-

ticipation in a crime. The majority found the term

“interrogation,” as used in Brewer v. Williams, to

be a relative term not restricted to formalized ques-

tioning (Pet. App. 6a) and concluded (id. at 7a):

If, by association, by general conversation, or

both, [respondent] developed sufficient confi-

dence i.. Nichols that [respondent] bared his in-

criminating secrets to an undisclosed paid in-

former, we think that there was interrogation

within the meaning of Brewer. We hold there-

fore that [respondent’s] right to counsel was

violated when the government proved incrimina-

ting statements made to his cellmate after his

indictment and in the absence of counsel.

Finding that the admission of Nichols’ testimony

could not be deemed harmless beyond a reasonable

doubt, the majority reversed the judgment of the dis-

trict court (Pet. App. 7a-8a).°

Judge Butzner, who joined in the majority opinion,

stated in a concurring opinion (Pet. App. 9a) that the

critical issue was whether the informant had “eli-

cited information” from respondent in the absence of

counsel. “Proof of formal interrogation is unnecessary

to invoke the protection of the sixth amendment. A

conversation that is tantamount to interrogation is

sufficient” (ibid., citing Brewer v. Williams, supra,

430 U.S. at 397-401). He noted in this regard (Pet.

App. 8a) that Nichols had admitted at trial that he

had “some conversations” with respondent (See A.

28; Tr. 134) but did not divulge what he had said

to respondent.

Judge Butzner indicated (Pet. App. 8a, 9a) that it

would have been prudent for the district court to hold

an evidentiary hearing, in view of respondent’s claim

that Nichols had questioned him about the case and

the government’s failure to reveal the substance of

5 Neither the panel’s opinion nor the concurring and dis-

senting opinions addressed the district court’s ruling that

respondent had waived this claim by his failure to object

to Nichols’ testimony at trial. On appeal, respondent con-

tended (Reply Br. 4 & n.5) that no waiver of this objec-

tion occurred at trial because respondent was unaware of

the critical fact that Nichols was a paid government in-

formant, and thus lacked the information necessary to assert

his Massiah claim. Because the court of appeals did not

address the issue, and also because the trial antedated the

1975 amendments to Fed. R. Crim. P. 12, dealing with waiver

of claims for exclusion of evidence, we have not presented

the waiver issue for review by this Court.

- —

new ee

Nichols’ admitted conversations with respondent. But

Judge Butzner did not urge a remand for such a

hearing to determine whether a “conversation that is

tantamount to interrogation” had taken place. In-

stead, he concluded (Pet. App. 9a) that, “absent testi-

mony by the informant about what he said to [re-

spondent], the judgment must be reversed because of

the informant’s admission that he had conversed with

[respondent] and because of [respondent’s] assertion

that the conversation was a form of questioning.” °

Judge Russell dissented (Pet. App. 10a-24a). He

stated (id. at 10a) that Massiah and Brewer re-

quire “exclusion only when the challenged testimony

is the result of ‘interrogation.’” Quoting Justice

Blackmun’s dissenting opinion in Brewer v. Williams,

supra, 430 U.S. at 440, Judge Russell concluded

(Pet. App. 12a; emphasis in original) that neither an

informant’s presence alone nor his listening consti-

tutes interrogation: “The mere ‘subjective desire to

obtain information from a suspect after arraignment,’

if unaccompanied by some affirmative action, either

direct or subtle, reasonably calculated to induce con-

versation relative to the crime, will not satisfy the re-

quisite of ‘interrogation.’” Since “[t]he record indi-

cates that the [respondent’s] incriminating statements

® Judge Butzner noted (Pet. App. 9a-10a) that the district

court’s harmless error ruling was founded on the mistaken

belief that there had been an eyewitness identification of

respondent as one of the bank robbers. We have not pre-

sented the fact-bound harmless error issue for review by

this Court.

were voluntarily and spontaneously given without

any encouragement from Nichols,” Judge Russell

found (Pet. App. 14a) that “there was no ‘interro-

gation’ of [respondent] by Nichols, however broadly

that term may be defined.” Moreover, Brewer estab-

lished, in his view, that “whether the confession or

damaging admission had been ‘elicited surreptiti-

ously’ was ‘constitutionally irrelevant’” (Pet. App.

15a, quoting 430 U.S. at 400).

The government’s petition for rehearing with sug-

gestion of rehearing en banc was denied, with three

judges dissenting (Pet. App. 26a).

SUMMARY OF ARGUMENT

The decision by the court of appeals that evidence

of respondent’s incriminating admissions should have

been excluded from his trial was not based on a find-

ing that Nichols, the informant, had questioned re-

spondent about the bank robbery or had otherwise

affirmatively sought to induce him to make incrimi-

nating statements. There is nothing in the record,

other than respondent’s unsupported allegations in

his original and amended motions under 28 U.S.C.

2255, showing such questioning or inducement. The

court of appeals found a violation of respondent’s

Sixth Amendment rights solely on the basis of the

possibility that respondent might have bared his in-

criminating secrets to Nichols because he developed

confidence in Nichols as a result of association or

general conversation with him in the jail.

The court of appeals’ holding constitutes an ex-

tension of the Sixth Amendment right to counsel

that is not supported by prior decisions of this Court

or justified by the policies of the Sixth Amendment.

Without endorsing the district court’s choice of

words, we submit that it was correct in concluding

(Pet. App. 39a) that there is “no requirement

an accused be furnished counsel when he wishes to

shoot off his mouth.”

A. In its most recent discussion of the Sixth

Amendment issue, Brewer v. Williams, 430 U.S. 387

(1977), the Court made clear that the Sixth Amend-

ment does not require the exclusion at trial of in-

criminating statements of the accused merely because

he made the statements following a period of asso-

ciation with police officers while in custody or in the

course of general conversation with those officers

about matters unrelated to the charges against him.

The Court found a Sixth Amendment violation in

Brewer only because it concluded that the statements

introduced at trial were the product of interrogation

by a police detective, and the Court expressly stated

(4380 U.S. at 400) that there would have been no

Sixth Amendment violation if there had been no

interrogation.

The Court has applied the same rule with respect

to the introduction at trial of statements made w a

person the accused does not know to be an undercover

police officer or informant. The Court’s holding in

Massiah v. United States, 377 U.S. 201 (1964), the

principal decision regarding the admissibility of post-

indictment statements made to an informant, was

dependent on the fact that the government had “de-

liberately elicited” incriminating statements from the

accused by having the informant induce the accused

to talk about the charges against him, not on the

mere fact that the government placed itself in a

position to overhear those statements.

B. Sixth Amendment policies and precedents do not

justify the court of appeals’ extension of Massiah and

Brewer to require the exclusion of statements made by

an accused without any interrogation or provocation

by the government. In other areas, the Court has ex-

tended the right to counsel to pretrial judicial pro-

ceedings or other encounters between the accused and

the government, characterized as “trial-type con-

frontations,” at which the assistance of counsel is

necessary to enable the accused to cope with unfa-

miliar legal proceedings or to counterbalance the ex-

pert professional prosecutor. In these situations,

counsel is an advocate before the prosecutor and the

court in situations that advance the case toward dis-

position, and counsel’s presence is required to ensure

that the accused does not forfeit procedural rights

and to ensure the integrity of the truthfinding

process.

The reasons for basing the Massiah exclusionary

rule upon the Sixth Amendment right to counsel were

not fully explicated in the opinion in that case. In

fact, the Massiah rule appears to represent some-

thing of a departure from the main thrust of Sixth

Amendment jurisprudence. Unlike other applications

of the right to counsel, the Massiah rule does not op-

erate to foster or protect counsel’s role as a repre-

sentative whose expert assistance is necessary to

minimize prejudice resulting from sources wholly ex-

ternal to the accused, such as unfamiliar legal pro-

ceedings or confrontations with witnesses. Counsel’s

role in Brewer and Massiah would presumably have

been nothing more than to advise the accused to re-

main silent.

This suggests that the exclusionary rule, insofar

as it seeks to ensure that an accused is not deprived

of advice when being questioned by the government,

may be concerned more with protection of the values

served by the Fifth Amendment privilege against

compelled self-incrimination than with protection of

the kinds of rights for which professional legal as-

sistance is customarily thought to be required. But

while concern about the risk of compelled self-

incrimination is appropriate when the accused is,

as in Brewer, subjected to overt interrogation, the

hazard of coercion is almost entirely absent when, as

in this case, the accused engages in conversation

with someone whom he does not know to be a govern-

ment agent.

From a broader perspective, the decision in Mas-

siah is perhaps best understood as reflecting a con-

cern about the propriety of utilizing certain investi-

gative techniques directed against the accused after

the matter has progressed to an accusatory stage.

Nevertheless, it is not entirely clear why an investi-

gative technique, such as the use of an informant to

report back admissions made by the accused, which is

entirely lawful before formal proceedings have been

commenced, should become entirely unlawful there-

after. The initiation of proceedings does not always

correspond to the completion of the investigation of a

crime, and there may remain strong societal in-

terests, compatible with the Sixth Amendment’s

policy to secure to the accused a fair trial, that call

for the continuation of at least some investigation

directed at the accused after the point of formal

charge. These interests counsel against a broad ex-

tension of Massiah and Brewer to require the exclu-

sion of statements that are fundamentally the prod-

uct of the accused’s volition and not of interrogation

designed to elicit such statements.

In any event, applying the Sixth Amendment an-

alysis used in the cases generally, it is clear that the

mere passive presence of a government officer or in-

formant in a position to overhear incriminating

statements is not the type of “trial-like confronta-

tion” at which the presence of counsel is required.

Only where the government officer or informant en-

gages in affirmative conduct intended to draw infor-

mation from the accused about the charges against

him can the encounter reasonably be compared to a

“trial” or characterized as a “critical stage” of the

prosecution at which the presence of counsel is neces-

sary to enable the accused to deal with an expert ad-

versary or unfamiliar procedures.

The result should be no different in the present

case because respondent made the statements while

he was in jail awaiting trial instead of while free on

bail, as was the defendant in Massiah. Although an

inmate in jail does not have the freedom to choose his

associates, this has no bearing on the Sixth Amend-

ment issue. The loss of freedom inherent in incarcer-

ation is imposed for reasons wholly unrelated to in-

ducing the defendant to speak. Mere incarceration

prior to trial therefore cannot constitute “deliberate

elicitation” of any incriminating statements the ac-

cused happens to make while in jail. Thus, the Sixth

Amendment would not prohibit the introduction at

trial of incriminating statements overheard by a jail

official or an informant placed in an adjoining cell,

because there would have been no affirmative action

designed to induce the accused to talk. The same is

true when statements are made to an informant

sharing a cell with the accused, if the informant did

not interrogate the accused or engage in conduct

tantamount to interrogation in order to extract in-

criminating statements.

Even if the informant had questioned respondent

about the charges against him, the Sixth Amendment

should not be held to require exclusion of respond-

ent’s statements at trial. Massiah and Brewer re-

quire exclusion only where the government caused the

accused to be interrogated or deliberately elicited the

statements from him. In the present case, the respon-

sible FBI agent expressly instructed the informant

not to question respondent or to initiate conversation

about the bank robbery. This demonstrates a meti-

culous concern on the government’s part for respond-

ent’s Sixth Amendment rights. The purpose of the

Sixth Amendment exclusionary rule to prohibit de-

liberate elicitation of statements by the government

would therefore not be sufficiently furthered by pro-

hibiting admission at trial of statements that fol-

lowed questioning by an informant in complete dis-

regard of his instructions to justify the costs asso-

ciated with exclusion.

ARGUMENT

NO SIXTH AMENDMENT VIOLATION RESULTS

FROM MERE ASSOCIATION OR GENERAL CON-

VERSATION BETWEEN A DEFENDANT AND AN

INFORMANT

A. A Sixth Amendment Violation Does Not Occur

Unless the Government Has Caused the Accused

to be Questioned About the Offense

The court of appeals, while conceding that there

was no evidence that Nichols had disobeyed instruc-

tions not to question respondent, nevertheless held

(Pet. App. 7a) that respondent’s Sixth Amendment

right to the assistance of counsel was violated be-

cause, “by association, by general conversation, or

both, [respondent] developed sufficient confidence in

Nichols that [respondent] bared his incriminating

secrets to an undisclosed paid informer” in the ab-

sence of counsel. The court found such association or

general conversation to be “interrogation within the

meaning of Brewer” (ibid.), requiring exclusion of

respondent’s statements at trial. The court’s con-

clusion stretches the word “interrogation” far beyond

the common understanding of the term’ and far

beyond the connotation intended in Brewer.

A reading of this Court’s decisions demonstrates

that, contrary to the conclusion of the court of ap-

peals, the use by the government of an incriminating

statement made outside the presence of counsel does

not violate the Sixth Amendment, even if the state-

ment is made while in association or general con-

versation with an informant. A Sixth Amendment

violation has been held to occur only when the gov-

ernment deliberately elicits the statement—i.e., en-

gages in affirmative conduct reasonably calculated to

overcome the accused’s reluctance to talk for the

specific purpose of inducing him to make incrimi-

nating statements.

In Brewer the defendant made incriminating state-

ments while riding with police officers for several

hours on a journey from Davenport to Des Moines,

Iowa. The Court never suggested that the mere asso-

ciation between the officers and the defendant during

the automobile trip to Des Moines itself entitled the

defendant to the presence and assistance of counsel.

Moreover, while en route, the defendant and the of-

ficers “embarked on a wide-ranging conversation cov-

ering a variety of topics” unrelated to the charges

against him. 4380 U.S. at 392. Yet the Court did

not base its finding of a Sixth Amendment violation

7 Webster’s New International Dictionary (3d ed. 1961)

defines “interrogate” to mean “to question typically with

formality, command, and thoroughness for full information

and circumstantial detail.”

on the fact that the defendant happened to have made

an incriminating statement following a period of gen-

eral conversation with the police officers. “Indeed,

far from being prohibited by the Constitution, admis-

sions of guilt by wrongdoers, if not coerced, are in-

herently desirable.” United States v. Washington,

431 U.S. 181, 187 (1977).

Thus, the Court in Brewer found a Sixth Amend-

ment violation only after it concluded that the “Chris-

tian burial speech” made by the police detective in

the car was a deliberate effort to elicit information

that was tantamount to formal interrogation by the

government (430 U.S. at 399-400) ; indeed, the Court

specifically concluded that no Sixth Amendment right

to counsel “would have come into play if there had

been no interrogation.” Jd. at 400; see also id.

at 410-413 (Mr. Justice Powell, concurring).*

The Court’s decision in Massiah v. United States,

supra, makes clear that the same standard applies

where, as in the present case, the accused happens to

make an incriminating statement in the presence of

or overheard by a government agent or informant

whose status as such is not known to the accused.

The holding in Massiah was premised on surreptitious

questioning of the defendant that was intentionally

8 The dissenting opinions did not question the majority’s

premise that the presence of interrogation was a prerequisite

to finding a constitutional violation. They concluded only

that there had been no interrogation, 430 U.S. at 416 (Mr.

Chief Justice Burger) ; id. at 438-441 (Mr. Justice Blackmun),

or that there had been a waiver of the right to counsel, id.

at 429-430 (Mr. Justice White).

arranged by the government, not on the mere fact that

the statements were overheard by an informant and

a government agent who happened to be in proximity

to the accused.

In Massiah the informant, the accused, and other

persons were jointly indicted for conspiracy to com-

mit certain narcotics offenses. A few days after the

indictment, and without Massiah’s knowledge, one of

his co-defendants decided to cooperate with the police

in the continuing investigation of the narcotics ac-

tivities. The informant permitted a government agent

to install a radio transmitter under the front seat

of his automobile. 377 U.S. at 202-203. The opinion

- of the court of appeals indicates that the informant,

pursuant to the government’s instructions, invited the

defendant to enter his automobile and induced him

to talk about the pending case. United States v. Mas-

siah, 307 F.2d 62, 66 (2d Cir. 1962); id. at 72 (dis-

senting opinion). A government agent overheard the

conversation by means of the transmitter installed in

the informant’s car and testified about the defend-

ant’s statements at trial. The eourt of appeals af-

firmed the conviction, but this Court reversed, finding

a violation of the defendant’s Sixth Amendment right

to the assistance of counsel.

Although it is said in the Court’s statement of

the case that the government had overheard the

statements (877 U.S. at 203), it is clear that the

Court did not premise its finding of a Sixth Amend-

ment violation on the overhearing alone.’ The Court’s

express holding was that ‘“‘the petitioner was denied

the basic protections [of the Sixth Amendment right

to the assistance of counsel] when there was used

against him at his trial evidence of his own incrimi-

nating 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 (em-

phasis added) ; see also id. at 204.

The term “elicit” connotes a drawing out through

affirmative action such as questioning, not simply

overhearing,” and analysis of the Court’s decision in-

dicates that it intended the phrase “deliberately

elicited” to mean procured; through purposeful ques-

tioning of the defendant. The Court based its holding

in part on the opinions of the four concurring Justices

in Spano v. New York, 360 U.S. 315, 324-327 (1959),

® For example, the Court noted that petitioner argued in

the case that it was constitutional error to permit the agent

to testify about the statements he had overheard “under the

circumstances disclosed by this record.” 377 U.S. at 203; see

also id. at 207. The circumstances disclosed by the record

demonstrate, of course, that the informant had solicited in-

formation about the case from the defendant.

10 Webster’s New International Dictionary (3d ed. 1961)

defines “elicit” to mean “to draw or bring out (something

latent or potential) * * * to call forth or draw out.” Funk

& Wagnalls New Standard Dictionary (1946) defines “elicit”

to mean: “To draw out as by some attraction or inducement;

educe gradually or without violence; bring to light; as, to

elicit information by inquiry; to elicit a reply.” See also

3 Murray, A New English Dictionary (1897 ed.) (“to ex-

tract, draw out (information) from a person by interroga-

tion”). Indeed, the word connotes a drawing out against the

will or inclination of the other person. See Webster’s New

International Dictionary (2d ed. 1958).

which the Massiah Court took to be that reversal

of a conviction is required when it is based upon a

confession that had been “deliberately elicited by the

police” after indictment (377 U.S. at 204). Spano

involved in-custody interrogation of the defendant

without the presence of counsel, and the quoted de-

scription of Spano therefore equates “deliberate elici-

tation” with interrogation.

The Court made the same point later in the Mas-

siah opinion in the course of rejecting the govern-

ment’s suggestion that Spano could be distinguished

because that case involved interrogation at the police

station, while Massiah involved damaging admissions

obtained from the defendant without his knowledge

while he was free on bail. The Court stated that if

its rule against deliberate elicitation of incriminating

statements after indictment and in the absence of

counsel ‘‘ ‘is to have any efficacy it must apply to in-

direct and surreptitious interrogations as well as

those conducted in the jailhouse. In this case, Mas-

siah was more seriously imposed upon * * * be-

cause he did not even know that he was under inter-

rogation by a government agent.’” 377 U.S. at 206,

quoting 307 F.2d at 72-73 (Hays, J., dissenting)

(emphasis added). Similarly, in explaining Mas-

11 Escobedo V. Illinois, 378 U.S. 478 (1964), decided just

five weeks after Massiah, held that police interrogation of the

defendant after his arrest (but before indictment or other

commencement of proceedings) in the absence of counsel and

despite his request for counsel violated his Sixth Amendment

rights. There was no occasion for the Court to consider

26°

siah, the Court in Brewer stated (430 U.S. at 401)

that “the clear rule of Massiah is that once adversary

proceedings have commenced against an individual,

he has a right to legal representation when the gov-

ernment interrogates him.” =

whether conduct falling short of such direct questioning

would have violated the Sixth Amendment.

The holding in Escobedo that the defendant was entitled

to the assistance of counsel even though proceedings had not

yet been instituted against him has not been extended, and

this aspect of Escobedo has been limited to its own facts.

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opin-

ion). See also Michigan v. Tucker, 417 U.S. 433, 488 (1974).

12 The court of appeals found support (Pet. App. 5a) for

its broad holding that a Sixth Amendment violation occurs

merely by virtue of the presence of a government informant

or general conversation between the informant and the accused

from the summary reversals by this Court in Beatty v.

United States, 389 U.S. 45 (1967), and McLeod v. Ohio, 381

U.S. 356 (1965). In neither of these cases did the Court

write an opinion, and it is well settled that such summary

dispositions do not have the same precedential effect as cases

fully briefed and argued on the merits. See Parker v. Ran-

dolph, No. 78-99 (May 29, 1979), slip op. 12-13 n.8 (plurality

opinion) ; Edelman v. Jordan, 415 U.S. 651, 670-671 (1974).

In any event, a reading of the state court opinion reversed

in McLeod demonstrates that the central question there was

whether Massiah is applicable after the commencement of

judicial proceedings but before an attorney has actually been

retained by or appointed for the accused. State v. McLeod,

1 Ohio St. 2d 60, 62-63, 203 N.E.2d 349, 351-352 (1964).

See Developments in the Law—Confessions, 79 Harv. L. Rev.

935, 999 (1966).

As for Beatty, any inference from the facts of that case

that the Court was prepared to extend Massiah to mere

acquisition of statements made by the accused without gov-

ernment provocation does not survive Brewer. See also

Weatherford v. Bursey, 429 U.S. 545, 557-558 (1977).

B. The Policies of the Sixth Amendment Do Not Sup-

port an Extension of Massiah and Brewer to Bar

the Admission of Statements Made to an Informant

Who Did Not Interrogate the Accused or Other-

wise Elicit the Statements

The Court did not fully articulate in Massiah and

Brewer the Sixth Amendment principles underlying

the right to counsel in situations in which the ac-

cused makes incriminating statements in the presence

of a government agent or informant. A review of

the precedents suggests that these holdings are some-

thing of a departure from other cases considering

the Sixth Amendment right to counsel, especially

where, as in Massiah and in the present case, the

accused does not even realize that he is in the pres-

ence of a government agent or informant. Moreover,

the holding in cases such as Massiah and Brewer, re-

quiring the exclusion of admissions or confessions

by the accused, deprives the courts and the public of

highly probative and reliable evidence. Exclusion

cannot therefore be justified in terms of that aspect

of the right to counsel that is meant to safeguard the

accuracy of the truthfinding process. These factors

caution against extending Massiah to new situations

unless compelling considerations of constitutional pol-

icy require that result. No such compelling considera-

tions are present here.

1. The Court Has Generally Recognized the Sixth

Amendment Right to the Assistance of Counsel

in the Context of “Trial-Like Confrontations”

Between the Government and the Accused in

Which the Accused is Confronted with Complex

Legal Proceedings or an Expert Adversary

Historically, the principal concern underlying the

Sixth Amendment guarantee is the recognition that

an unaided layman has little skili in arguing the law

or in coping with an intricate procedural system.

United States v. Ash, 413 U.S. 300, 307 (1973).

Unfamiliar with rules of evidence or the standards

by which to judge the charges against him, and lack-

ing the skill and knowledge to prepare his defense,

the defendant requires the “guiding hand of counsel.”

Id. at 307-308, quoting Powell v. Alabama, 287 U.S.

45, 69 (1932); see also Fare v. Michael C., No.

78-334 (June 20, 1979), slip op. 11, 14; Argersinger

v. Hamlin, 407 U.S. 25, 31-85 (1972); Gideon v.

Wainwright, 372 U.S. 385, 344-345 (1963) ; Johnson

v. Zerbst, 304 U.S. 458, 462-463 (19388). The as-

sistance of counsel is also necessary to minimize

the imbalance in the adversary system that results

when “the prosecution is presented by experienced and

learned counsel.” Johnson v. Zerbst, supra, 304 U.S.

at 463; see also Moore v. Illinois, 484 U.S. 220, 228-

230 (1977) ; Gideon v. Wainwright, supra, 372 U.S.

at 344.

The core of the counsel guarantee, at least as an

historical matter, related to the assistance of counsel

at trial, where the defendant would most directly

confront the professional prosecutor and the com-

plexities of the legal system. But over time, evolving

concepts of due process led to judicial recognition

that significant events occur before trial at which the

defendant might likewise be confronted with intricate

procedures or the professional prosecutor. See United

States v. Ash, supra, 413 U.S. at 309-310. Accord-

ingly, the Court extended the right to counsel to these

additional “trial-like confrontation[s]” between the

government and the accused (7d. at 314)—encounters

“that might appropriately be considered to be parts

of the trial itself’ (id. at 310). But in deciding

whether to hold that the Sixth Amendment conferred

a right in the circumstances, the Court consistently

has been informed by the historical purposes under-

lying the guarantee—assisting the accused to cope

with the legal system and his expert adversary—

“and has expanded the constitutional right to counsel

only when new contexts appear presenting the same

dangers that gave birth initially to the right itself.”

Id. at 311.

For example, in Hamilton v. Alabama, 368 U.S. 52

(1961), the Court held that arraignment under Ala-

bama law was a “critical stage” in the criminal pro-

ceeding at which the defendant was entitled to ap-

pointment of counsel, because certain pleas and de-

fenses had to be made at that time or not at all, and

what happened at arraignment might therefore af-

fect the whole trial. Jd. at 54; see also White v. Mary-

land, 373 U.S. 59 (1963). Similarly, in Coleman v.

Alabama, 399 U.S. 1 (1970), the Court held that the

Alabama preliminary hearing was a critical stage of

the prosecution at which “the guiding hand of counsel

* * * is essential to protect the indigent accused

against an erroneous or improper prosecution.” 399

U.S. at 9 (plurality opinion). Counsel could, for ex-

ample, expose factual weaknesses in the State’s case

and persuade the magistrate not to bind the accused

over, preserve the testimony of witnesses favorable to

the accused who might not appear at trial, fashion an

impeachment tool for witnesses against the accused,

endeavor to discover the State’s case, and make effec-

tive arguments for the accused on such other matters

as release on bail. Ibid. See also Moore v. Illinois,

supra, 434 U.S. at 228; Mempa v. Rhay, 389 U.S.

128 (1967). Compare Gerstein v. Pugh, 420 U.S.

103, 122-123 (1975).

The Court has also recognized a right to the as-

sistance of counsel in certain confrontations between

the accused and the government outside of the context

of formal judicial proceedings. For example, in

United States v. Wade, 388 U.S. 218 (1967), the

Court held that a pretrial lineup was a critical stage

in the prosecution at which the accused is entitled to

the assistance of counsel in order to protect his right

to a fair trial. Jd. at 226-227. In that context, the

assistance of counsel is required, absent a waiver,

to ensure that the lineup itself is not conducted in a

suggestive or otherwise impermissibly prejudicial

fashion that might affect the accuracy of testimony

at trial, as well as to enable the defense to confront

the identifying witnesses effectively at trial. Jd. at

228-238; see Schneckloth v. Bustamonte, 412 U.S.

218, 239 (1978).

But the Court has been cautious in expanding the

Sixth Amendment right to counsel into new areas, cf.

Scott v. Illinois, 440 U.S. 367 (1979), particularly

in areas that do not involve formal proceedings.

It has not, for example, extended the right to coun-

sel to pretrial photographic identifications at which

the accused himself is not present, because that

situation does not involve a confrontation by the

accused with an expert adversary or intricate or con-

fusing proceedings. United States v. Ash, supra; cf.

Faretta v. California, 422 U.S. 806 (1975). The

Court has also indicated that the right to counsel

recognized in United States v. Wade, supra, is not

to be extended to other encounters at which the gov-

ernment extracts potentially unfavorable evidence

from the accused, but which do not involve complex

proceedings, confrontation with witnesses, or a real-

istic danger that the expert prosecutor or his agents

will impermissibly prejudice the accused. See Gilbert

v. California, 388 U.S. 268, 267 (1967) (no right to

counsel at taking of handwriting exemplars); cf.

Schmerber v. California, 384 U.S. 757, 765-766

(1966).

In all of the situations just discussed in which the

Court has found a Sixth Amendment right to counsel,

the role of the attorney has been the affirmative one

of preparing the case on behalf of the defense (see

Powell v. Alabama, supra, 287 U.S. at 58) and acting

as the defendant’s advocate in encounters with the

government at which the defendant’s case is advanced

toward disposition or at which the reliability of the

truthfinding process might be unfairly undermined.

ee ER Fee ee a, ee ee

See Grano, Rhode Island v. Innis: A Need to Recon-

sider the Constitutional Premises Underlying the Law

of Confessions, 17 Am. Crim. L. Rev. 1, 9-10 & n.59

(1979); Enker & Elsen, Counsel for the Suspect:

Massiah v. United States and Escobedo v. Illinois,

49 Minn. L. Rev. 47, 49-50 (1964).

2. Sixth Amendment Policies Do Not Support a

Broad Expansion of the Massiah Exclusionary

Rule

The right to the assistance of counsel identified in

Massiah and Brewer cannot be so readily explained

aS a necessary protection at a stage in the pro-

ceedings or prosecution at which the case is ad-

vanced from charge to disposition or at which the

accuracy of the truthfinding process might be un-

fairly affected. Aside, perhaps, from preventing over-

reaching to ensure that his client’s responses are vol-

untary, counsel’s role in Massiah and Brewer, as a

practical matter, would probably be simply to tell the

accused to say nothing, see Watts v. Indiana, 338

U.S. 49, 59 (1949) (Mr. Justice Jackson, concur-

ring); Grano, supra, 17 Am. Crim. L. Rev. at 10

n.59, and thereby to deprive the court and the public

of what will almost always be relevant and reliable

evidence in the form of a confession or admission.

See Massiah v. United States, supra, 377 U.S. at 209

(Mr. Justice White, dissenting).

The grounding in the Sixth Amendment of a right

to counsel to accomplish this end has been questioned

and criticized because of its perceived departure from

the traditional, constitutionally recognized role of

counsel as an advocate and because of its tendency,

like that of any prophylactic rule requiring the sup-

pression of reliable evidence, to injure the strong

public interest in enforcement of criminal laws; it is

also objected to because it imposes the costs of evi-

dentiary exclusion without regard to the presence or

absence of genuine misconduct by the government in

particular cases. Massiah v. United States, supra,

377 U.S. at 207-213 (Mr. Justice White, dissenting) ;

Escobedo v. Illinois, 378 U.S. 478, 495-499 (1964)

(Mr. Justice White, dissenting); Grano, supra, 17

Am. Crim. L. Rev. at 24-25; Enker & Elsen, supra,

49 Minn. L. Rev. at 66-69."

18 The role of counsel encompasses several distinct func-

tions in the context of a criminal case. Virtually all of the

Court’s Sixth Amendment cases other than the Massiah line

involve what might be called the representational function,

which is not only important in assuring that the defendant is

able to cope with complex legal proceedings, but which also

serves an important societal goal of helping to assure that

innocence will be vindicated when unfounded charges have

been brought. The Massiah exclusionary rule, on the other

hand, does not really operate to foster that function of counsel,

but is instead concerned with what might be called the ad-

visory or counselling function of the attorney—specifically, in

this situation, counsel’s role in advising the defendant against

improvident actions or statements that might place incrimi-

nating evidence in the hands of the prosecution and ease its

burden in establishing the defendant’s guilt.

Without intending in any way to denigrate the importance

and legitimacy of actions by counsel designed to keep a guilty

defendant from carelessly or unwisely helping the prosecu-

tion, it is nevertheless not immediately evident that respect

for this aspect of counsel’s function demands application of

an exclusionary rule that withholds probative evidence from

the factfinder at trial. Provided the government has in no

way impeded the giving and receipt of legal advice re-

These points seem particularly well-taken when the

accused does not even know that he is speaking in

the presence of a government agent or informant. In

the view of some, to the extent that the Constitution

speaks to the concerns underlying Massiah and

Brewer, it is through the Fifth Amendment privilege

against compulsory self-incrimination. See, e.g.,

Enker & Elsen, supra, 49 Minn. L. Rev. at 57; ef.

Escobedo v. Illinois, supra, 378 U.S. at 497 (Mr. Jus-

tice White dissenting). The Court’s decision in Mi-

randa v. Arizona, 384 U.S. 486 (1966), in fact con-

firms that the right to counsel recognized in Escobedo

was integrally related to protection of the Fifth

Amendment privilege. Jd. at 442, 464, 465.

The prophylactic measures adopted by the Court

in Miranda, including the right to presence of coun-

sel, were designed to protect the Fifth Amendment

privilege in the specific setting of custodial police in-

terrogation, which the Court believed to be inherently

coercive. 384 U.S. at 445, 448-449, 469-473; Beckwith

v. United States, 425 U.S. 341, 345-346 (1976). But

the Court stressed that these protections would not

apply in the absence of questioning, even when the

suspect was in custody. 384 U.S. at 478."

garding a pending criminal case, the balance between societal

and individual interests with respect to counsel’s functions

would appear to tilt against the application of an exclu-

sionary rule.

14 Later cases have also made clear that the Miranda pro-

tections do not apply where there is interrogation, but at a

time when the suspect is not in custody. See, e.g., Oregon

V. Mathiason, 429 U.S. 492 (1977) ; Beckwith v. United States,

supra.

A similar approach has been taken under the Sixth

Amendment when the accused is in custody following

the commencement of proceedings against him. As

Brewer demonstrates, custody alone—a mere proxim-

ity to persons known to be police officers—does not

constitute the kind of “trial-like confrontation” to

which the counsel guarantee attaches. Custody could

be transformed into something akin to a “trial-like

confrontation” triggering the right to counsel only

when the government actively seeks information

from the accused through interrogation. 430 U.S. at

399-401; see also Spano v. New York, supra, 360

U.S. at 325-326 (Mr. Justice Douglas, concurring) ;

id. at 327 (Mr. Justice Stewart, concurring). Only

then is the accused engaged by an expert adversary

on matters relating to the charges against him, and

only then could counsel’s presence be necessary to pro-

tect the accused’s Fifth Amendment privilege against

compulsory self-incrimination, which may be threat-

ened by such custodial interrogation. Compare M7-

randa v. Arizona, supra.

The Court in United States v. Ash, supra, also de-

scribed Massiah as a case in which the assistance of

counsel was necessary because counsel “could have

advised his client on the benefits of the Fifth Amend-

ment.” 413 U.S. at 312. But no Fifth Amendment

protection was needed in Massiah, because, unlike the

accused in Brewer, the defendant in Massiah was not

even arguably compelled by the government to speak,

and, in fact, was not compelled to speak at all. Kami-

sar, Brewer v. Williams, Massiah, and Miranda:

What Is “Interrogation”? When Does It Matter?, 67

Geo. L.J. 1, 59, 63 (1978); Grano, supra, 17 Am.

Crim. L. Rev. at 21 n.134. Thus, even if Brewer is

thought to be consistent with Sixth Amendment

precedent because counsel’s presence is required in

order to protect the Fifth Amendment privilege when

the defendant knows he is in the presence of and is

engaged in questioning by expert adversaries, it does

not necessarily follow that the Sixth Amendment is

implicated to the same degree when the accused does

not even perceive that he is in the presence of a gov-

ernment agent or informant and therefore is not con-

fronted with the possibility of government compul-

sion to which the Fifth Amendment speaks. These

considerations weigh against broadly extending the

Sixth Amendment right to counsel identified in Mas-

siah and Brewer, as the court of appeals did in the

present case, to new situations in which there is no

evidence of affirmative conduct by the government

akin to the interrogation present in each of those

cases.

The foregoing difficulties in viewing the Massiah

result from a Sixth Amendment right to counsel per-

spective also suggest that the decision may in part

really reflect a concern about the use of certain in-

vestigative techniques at the post-accusation stage,

rather than the right to counsel as such." It is of

15In United States v. Ash, supra, the Court identified

another role for counsel in Massiah, aside from advising the

course clear that the use of an informant to obtain in-

criminating statements from an individual prior to

the time that charges are filed against him is entirely

lawful. See, e.g., United States v. White, 401 U.S.

745 (1971) (plurality opinion); Hoffa v. United

States, 385 U.S. 293 (1966). It is not immediately

defendant about the Fifth Amendment privilege: to “shelter”

the defendant “from the overreaching of the prosecution.”

413 U.S. at 312. This suggests that the Court may have be-

lieved that the use of the informant to question Massiah

constituted overreaching for reasons wholly independent of

the right to counsel. Others have read Massiah as focusing,

at least in part, on investigative techniques. See Enker &

Elsen, supra, 49 Minn. L. Rev. at 57, 80-82; Massiah v. United

States, supra, 377 U.S. at 212 (Mr. Justice White, dissenting).

But the Court has, in other contexts, fully approved of

the use of undercover methods to solve crimes. See, ¢.g.,

Weatherford v. Bursey, supra; United States v. Russell, 411

U.S. 423 (1973) ; United States v. White, 401 U.S. 745 (1971).

There is no reason for the surreptitious nature of the investi-

gation here to be determinative, for the Constitution “affords

no protection to ‘a wrongdoer’s misplaced belief that a person

to whom he voluntarily confides his wrongdoing will not

reveal it.’” United States v. White, supra, 401 U.S. at 749,

quoting Hoffa v. United States, 385 U.S. 298, 302 (1966).

In any event, it would be somewhat odd to couch rules

intended to limit investigative techniques in terms of an

interference with the right to counsel, at least where those

techniques do not intrude directly into the relationship be-

tween the accused and his attorney. Therefore, to the extent

concern about investigative practices plays a role in these

cases, the Court may at some point wish to consider reviewing

them under the Due Process Clause, cf. Hampton v. United

States, 425 U.S. 484 (1976); United States v. Russeli, 411

U.S. 423, 431-432 (1973) ; Rochin v. California, 342 U.S. 165

(1952), rather than abiding by the Sixth Amendment analy-

sis, with its attendant difficulties. See Grano, supra, 17

Am. Crim. L. Rev. at 21 & n.129, 22.

apparent, from the standpoint of the propriety of

police practice, why investigative activities that are

entirely lawful prior to the commencement of formal

proceedings should become entirely unlawful after. It

has been suggested that such a distinction is appro-

priate because the filing of formal charges shifts

proceedings from an investigative to an accusatory

stage. Grano, supra, 17 Am. Crim. L. Rev. at 18-

25. But the realities of criminal investigation are not

so abruptly altered by a change in classification.

In fact, the filing of formal charges may be quite un-

related to the completion of the investigation of a

crime. In some cases it is true that formal proceed-

ings are initiated only after exhaustive police investi-

gations and grand jury proceedings culminating in

an indictment; but in others, a person may be ar-

rested and charged on the basis of probable cause

arising in the immediate aftermath of an offense and

during an early stage of the investigation, but before

there has been an opportunity to investigate fully

his connection with the crime.

These variations warrant caution in viewing for-

mal charges as a watershed after which otherwise

proper investigative procedures may no longer be di-

rected at the accused in any fashion. Even after

charges have been filed, it is necessary to balance the

concerns that support restrictions on post-accusation

investigative techniques against what may often be

a strong societal interest in continuing investigation.

The standard set forth in Brewer and Massiah

strikes a viable balance: the government may not,

after formal proceedings have been commenced,

seek to induce confessions or admissions from the de-

fendant through interrogation or its functional

equivalent, but it may obtain and use at trial state-

ments that are a product of the defendant’s own

volition, not government prompting. Accordingly,

where the government acquires the statement with-

out an effort to overcome the accused’s reluctance to

discuss the charges against him, it is proper that the

accused should bear the risk of improvident revela-

tions. See United States v. White, supra, 401 U.S. at

752. ;

There is, however, no need to consider more fully

here whether the concerns underlying the Court’s de-

cisions in Massiah and Brewer would more appro-

priately be considered in a Fifth Amendment due

process or self-incrimination analysis rather than a

Sixth Amendment framework, or whether the pos-

sible concerns underlying Massiah would be more

productively analyzed by focusing on the propriety of

the use of any particular investigative technique dur-

ing the “accusatory” stage, rather than on the right

to counsel. For, as explained above, it is clear under

this Court’s decisions in Brewer and the other cases

discussing the Sixth Amendment right to counsel

generally that no violation occurs unless the govern-

ment interrogates the accused, or engages in conduct

that is the functional equivalent of such interroga-

tion. And if interrogation or its functional equivalent

is the appropriate standard under Brewer, when the

accused knows he is in the presence of government

agents (and is therefore directly confronted with the

expert adversary whom defense counsel is intended to

counterbalance and is threatened with possible inva-

sion of his Fifth Amendment privilege), it follows a

fortiori’ that nothing short of interrogation, or con-

versation tantamount to it, should trigger the Sixth

Amendment right to counsel when, as here, the ac-

cused makes a statement to a person he does not

know to be a government agent or informant.

3. The General Rule that No Sixth Amendment

Violation Occurs in the Absence of Interrogation

Applies in the Jail Setting

There is no basis for arguing that a broader

prophylactic rule is required under the Sixth Amend-

ment when incriminating statements are overheard

by the government without the accused’s knowledge

while he remains in custody, as in the present case,

than when he is free on bail, as in Massiah. It is true

that inmates do not have the freedom to choose their

associates, as the defendant in Massiah did, see Miller

v. California, 392 U.S. 616, 624 (1968) (Mr. Justice

Marshall, dissenting from dismissal of certiorari),

but this has no bearing on the Sixth Amendment

issue.*® Loss of freedom is inherent in custody, Bell

v. Wolfish, No. 77-1829 (May 14, 1979), slip op. 15,

16 Indeed, to the extent that the mention o#the freedom to

choose one’s companions suggests that Massiah is somehow

based on notions of privacy, this rationale would seem to

have less applicability when the accused is in custody. There

is an inevitable loss of privacy in jail, Bell v. Wolfish, No. 77-

ne ial

and, significantly for present purposes, 7¢ 7s imposed

for reasons wholly unrelated to inducing the inmate

to talk, about his crime or about anything else. Thus,

placing the accused in custody cannot alone be

thought to constitute deliberate elicitation of any

incriminating statements the accused might make

while in custody. Cf. Miranda v. Arizona, supra, 384

U.S. at 445, 448-449, 469-473; Beckwith v. United

States, supra, 425 U.S. at 345-346.

Accordingly, in the present case, if the informant

had been in the cell next to respondent and overheard

him make incriminating statements to his cellmate,

no Sixth Amendment violation would have occurred.

See United States v. Hearst, 563 F.2d 1331, 1347-

1348 (9th Cir. 1977), cert. denied, 485 U.S. 1000

(1978). In that situation, it would be clear that the

government had engaged in no affirmative conduct

specifically designed to extract such statements from

the accused. The same would be true if the accused

made a statement that a prison guard happened to

overhear. See, e.g., United States v. Barfield, 461

F.2d 661 (5th Cir. 1972).

The result should be no different where the infor-

mant is in the same cell, rather than an adjoining

one, and overhears statements that he has not in-

1829 (May 14, 1979), slip op. 37, and “official surveillance

has traditionally been the order of the day.” Lanza v. New

York, 370 U.S. 189, 143 (1962) ; cf. United States v. Hearst,

563 F.2d 1331, 1347-1348 (9th Cir. 1977), cert. denied, 435

U.S. 1000 (1978). See generally Dix, Undercover Investiga-

tions and Police Rulemaking, 53 Tex. L. Rev. 203, 230 (1975).

duced. In such a situation, there is likewise no in-

cremental action by the government—beyond the fact

of custody itself—that has the purpose or effect of

drawing a confession or admission from the accused.

The fact that the cellmate is an informant has no

impact on the accused, because the informant appears

to him to be an ordinary cellmate. Whether the ac-

cused makes any statements is therefore dependent

on his own disposition to do so. Only if the informant

interrogates the accused about the charges against

him (or initiates a conversation about the charges

that is “tantamount to interrogation’) can it be said

that any incriminating statements that follow have

been improperly elicited.”

While this Court has twice granted review in cases

involving the application of Massiah to the jail con-

text, neither case resulted in a decision on the merits.

In Milton v. Wainwright, 407 U.S. 371 (1972), a

police officer posing as a fellow inmate was placed in

the accused’s cell and, after extensive prodding to

overcome the latter’s reluctance to discuss the offense

with which he was charged, allegedly secured a con-

fession. The Court merely assumed arguendo that

this conduct, which appears to have been tantamount

to rather extended interrogation, violated Massiah;

it upheld the denial of habeas relief on the ground

that admission of the confession at the accused’s trial

was harmless error in the particular circumstances of

17 Even then, this elicitation should not be attributed to the

government, where, as here, the government instructed the

informant not to question the accused. See pages 45-51, infra.

that case. And in Miller v. California, 392 U.S. 616

(1968), which involved statements elicited by an un-

dercover officer in the accused’s cell prior to indict-

ment, the writ was dismissed as improvidently

granted. Obviously neither of these cases in the

least undermines the conclusion that Brewer’s stand-

ard, requiring interrogation or its equivalent as a

prerequisite to finding a Massiah violation, applies

whether an accused is free on bond, in jail, or in any

other form of custody.

The Second Circuit interpreted Brewer and Mas-

siah in precisely this manner in Wilson v. Henderson,

584 F.2d 1185, 1190-1191 (2d Cir. 1978), cert. de-

nied, No. 78-6610 (June 18, 1979). That case also

involved a defendant who made incriminating state-

ments to a cellmate who happened to be an informant.

There, as here, the informant was instructed not to

question the defendant about his crim2, but to listen

for any statements the defendant might make. The

court found the absence of questioning dispositive

under Massiah and Brewer, and it accordingly denied

habeas relief. There, as here, “[t]he instructions to

[the informant] suggest a conscious effort on the in-

vestigating officer’s part to guard [the defendant’s]

constitutional rights * * *. His directions [not to

question the defendant] suggest familiarity and at-

tempted compliance with, not circumvention of, the

principle of Massiah.” 584 F.2d at 1191.

The Ninth Circuit also reads Brewer and Massiah

as requiring interrogation as a prerequisite to a find-

ing of a Sixth Amendment violation when the govern-

ment surreptitiously overhears incriminating state-

ments made by the defendant. See United States v.

Hearst, supra, 563 F.2d at 1347-1348. In Hearst, in

which the government overheard conversations be-

tween the defendant and a friend in the visiting room

of the jail where she was incarcerated prior to

trial, the court found no violation of the right to

counsel because the government had not formally

or informally interrogated the defendant. See also

United States v. Hayles, 471 F.2d 788, 791-792 (5th

Cir.), cert. denied, 411 U.S. 969 (1973).*°

On the record before the Court in this case, there

is no evidence of affirmative action by the govern-

ment, or by the informant Nichols, to induce re-

spondent to make incriminating statements. The

FBI agent instructed the informant not to question

respondent, and there is no evidence in the record

that he did so. Also, although we do not believe these

additional facts to be indispensible to our position,

the FBI agent did not request that the informant

be placed in the cell with respondent and, in fact,

did not even appear to know that he was in that cell.

The court of appeals therefore erred in finding that

respondent’s right to counsel had been violated.

18 See also Weatherford v. Bursey, supra, 429 U.S. at 551-

552, pointing out that the government had overheard conver-

sations by the defendant in Black v. United States, 385 U.S.

26 (1966), and O’Brien v. United States, 386 U.S. 345

(1967), some, but not all of which were with the defendant’s

counsel. The Court appears to have perceived a Sixth Amend-

ment issue only with respect to the monitored conversations

with defense counsel.

ee ne —— -

boy

ris “

EVEN IF THE INFORMANT HAD VIOLATED HIS

INSTRUCTIONS FROM THE FBI AGENT NOT TO

QUESTION RESPONDENT ABOUT HIS OFFENSE,

THIS QUESTIONING WOULD NOT HAVE CON-

STITUTED GOVERNMENT INTERROGATION

As discussed above, the Court held in Brewer that

“the clear rule of Massiah is that once adversary pro-

ceedings have commenced against an individual, he

has a right to legal representation when the govern-

ment interrogates him.” 430 U.S. at 401 (emphasis

added). Thus, unless the government takes some af-

firmative action to elicit incriminating statements

from the accused, no Sixth Amendment violation oc-

curs when the accused makes incriminating state-

ments to a third person, even though the third person

in turn reports those statements to the government.

In the present case, Nichols was instructed not to

question respondent about the crime of which he was

accused, and there is nothing in the record to suggest

that he did. But even if Nichols violated his instruc-

tions and questioned respondent, that unauthorized

action should not be held to have constituted de-

liberate elicitation by the government that would

justify suppression of respondent’s statements under

the Massiah exclusionary rule. This situation would

be essentially the same as if a fellow prisoner had

asked questions of respondent on his own initiative

and only later decided to convey the information to

the government. In neither case would the govern-

ment have authorized the informant to question the

respondent, and in neither should the questioning

be attributed to the government.

This point is vividly illustrated in the present case.

Sadler, another of respondent’s cellmates, also testi-

fied at trial about incriminating statements made by

respondent, but Sadler had not contacted the FBI

until after respondent made the statements. From

Sadler’s testimony (A. 31-37; Tr. 140-150), it does

not appear that he initiated conversations with re-

spondent about the bank robbery. But if he had,

it is clear that respondent’s Sixth Amendment right

to counsel would not have been violated when Sadler

testified at trial because the government would not

be implicated in the questioning at all. The result

should not be any different with respect to any un-

authorized questioning by Nichols.”

Moreover, where probative and reliable evidence

such as a confession or admission is concerned, it is

necessary to balance the interests to be fostered by

application of an exclusionary rule against the impor-

tant public interest in the availability of such evi-

dence. The purpose of the Massiah exclusionary rule

is to prevent the government from deliberately elic-

iting statements from the accused after proceedings

have begun and introducing those statements at trial.

This purpose would not be incrementally furthered by

19 Even when a person awaiting trial has made no prior

arrangements with the government to report statements

made by a fellow inmate, he would have incentive to do so in

order to make a favorable deal with the prosecution in his

own case. See, e.g., People v. Cardona, 41 N.Y.2d 333, 360

N.E.2d 1306, 392 N.Y.S.2d 606 (1977). Indeed, in the present

case, Sadler testified that he informed the FBI of respondent’s

statements on the advice of his attorney, in relation to his own

case (A. 33-34; Tr. 143-144).

extending the exclusionary rule to a situation in

which the responsible government agent—here FBI

Agent Coughlin—in a good faith effort to comply

with Massiah, instructed the informant not to ques-

tion the accused and did not engage in any other

action that attempted to bring about improper elici-

tation of the statements. Cf. Michigan v. DeFillippo,

No. 77-1680 (June 25, 1979).

Thus, even if the informant in this case did violate

his instructions and interrogated respondent about

the bank robbery, only a wooden rule attributing to

the government all acts of the informant without

regard to the government’s efforts to control or its re-

sponsibility for the informant’s actions, would support

exclusion of respondent’s statements at trial.” But

surely, not all acts of an informant with whom the

responsible government official enters into a limited

and specific relationship can be held to be deliberate

governmental actions under Massiah and Brewer.

Sixth Amendment principles do not support such at-

tribution. Where an informant, rather than a trained

undercover law enforcement o‘Ticer, obtains the state-

ments, without governmental involvement similar to

that in Massiah, the accused is not confronted with

20 We assume for present purposes that if Nichols were a

government employee, rather than an informant, respondent’s

Sixth Amendment rights would have been violated even if

Nichols countermanded specific instructions not to question

respondent. But the government is not so broadly accountable

for the acts of an agent who is not an employee, because of

its diminished capacity to direct his actions. See Restate-

ment (Second) of Agency § 216, Comment a (1958).

the expert governmental adversary whose skills are

intended to be offset by defense counsel under the

Sixth Amendment cases discussed above.

In addition, the cases establish that generally the

government must significantly involve itself with

private activity before that activity is rendered “gov-

ernmental action” for purposes of constitutional pro-

tections. For example, in Moose Lodge v. Irvis, 407

U.S. 163 (1972), the Court held that a state’s grant

of a liquor license to a private club that practiced

racial discrimination did not render the discrimina-

tory practice of that club “state action” for purposes

of the Equal Protection Clause of the Fourteenth

Amendment. The Court noted that where the im-

petus for the discrimination is private, the state

must have “significantly involved itself” with the

invidious discrimination in order for the action to

fall within the ambit of constitutional prohibitions.

407 U.S. at 173, quoting Reitman v. Mulkey, 387

U.S. 369, 380 (1967); see also Jackson v. Metropol-

itan Edison Co., 419 U.S. 345 (1974). Even where

the government has extensive contacts with the pri-

vate entity, specific actions by that entity will not

give rise to a constitutiona! violation unless the gov-

ernment has in some manner approved it. Flagg

Bros. v. Brooks, 436 U.S. 149, 164 (1978). These

principles have been applied in connection with the

Fourth Amendment’s exclusionary rule as well. See,

e.g., United States v. Janis, 428 U.S. 483, 456

n.31 (1976); Burdeau v. McDowell, 256 U.S. 465

(1921).

In the present case, there is no basis for conclud-

ing that the federal government “significantly in-

volved itself” with any questioning Nichols might

have instigated. There is no evidence that the gov-

ernment directed, authorized, encouraged or knew of

any such questioning. See United States v. Rodriguez,

596 F.2d 169, 173 (6th Cir. 1979) ; United States v.

Wedelstedt, 589 F.2d 339, 346 (8th Cir. 1978), cert.

denied, No. 78-1383 (June 4, 1979); United States

v. Luciow, 518 F.2d 298 (8th Cir. 1975); United

States v. Clegg, 509 F.2d 605, 608-609 (5th Cir.

1975) ; United States v. Valen, 479 F.2d 467 (3d Cir.

1973), cert. denied, 419 U.S. 901 (1974); compare

Corngold v. United States, 367 F.2d 1, 4-5 (9th Cir.

1966) (en banc). Indeed, the FBI agent specifically

disapproved of the conduct. See United States v.

Stonehill, 274 F. Supp. 420, 422, 424 (S.D. Cal.

1967), aff’d, 405 F.2d 738 (9th Cir. 1968), cert. de-

nied, 395 U.S. 960 (1969) ; United States v. Mekjian,

505 F.2d 1820 (5th Cir. 1975); State v. Ferrari, 112

Ariz. 324, 541 P. 2d 921, 928 (1975). The gov-

ernment did not operate the jail or have the author-

ity to assign prisoners in the jail, compare State v.

Smith, 107 Ariz. 100, 482 P.2d 863, 866 (1971),

did not request that Nichols and respondent be

placed in the cell in order to question respondent,

United States v. Aloisio, 440 F.2d 705, 710 (7th

Cir.), cert. denied, 404 U.S. 824 (1971), and did not

engage in any other conduct that would suggest a

deliberate circumvention of respondent’s Sixth

Amendment rights by using a private party to do

what the government itself could not do. Compare

United States v. Valen, supra, 479 F.2d at 469, with

Corngold v. United States, supra, 367 F.2d at 5.

Thus, even if Nichols did question respondent in a

fashion prohibited to the government itself, this

would ‘‘evidence[ ] something less than that degree of

[government] participation” that concerned the Court

in Massiah. United States ex rel. Milani v. Pate,

425 F.2d 6, 8 (7th Cir.), cert. denied, 400 U.S. 867

(1970).

This conclusion is not inconsistent with the Court’s

decision in Sherman v. United States, 356 U.S. 369

(1958), in which the Court concluded that the de-

fendant had been entrapped into dealing in narcotics

by the overbearing urgings of an mformant. The

Court discussed (356 U.S. at 374-375) the prior re-

lationship between the government and the informant

and noted (id. at 374-375) that “the federal agent

in charge of the case admitted that he never bothered

to question [the informant] about the way he had

made contact with [the defendant].” Against this

background, the Court concluded that the government

could not utilize the services of an informant in this

manner and then disassociate itself from his conduct

(id. at 375). Sherman contrasts sharply with the

present case. Far from showing the carelessness that

led the Court in Sherman to conclude that the govern-

ment should be responsible for the undirected actions

of the informant, the FBI agent here gave Nichols

instructions that indicate “familiarity and attempted

compliance with, not circumvention of, the principle

of Massiah.” Wilson v. Henderson, supra, 584 F.2d

at 1191. There is therefore no need to impose a

broad rule attributing to the government all of the

actions of an informant with whom it enters into a

limited and specific relationship. Only where the gov-

ernment has directed the informant to question the

accused, or has placed the informant in a situation

where incriminating statements are likely to be over-

heard without adequately instructing j|him—and

thereby assuming the risk that the informant would

engage in questioning to benefit the government—

should the government be held to have “deliberately

elicited” statements that are made in response to the

informant’s questions.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.