                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                            _______________________

                            Nos. 02-2382NI, 02-3127NI
                            _______________________

United States of America,                *
                                         *
             Appellant,                  *
                                         * On Appeal from the United
      v.                                 * States District Court
                                         * for the Northern District
                                         * Iowa.
Angela Jane Johnson,                     *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 13, 2003
                                 Filed: July 31, 2003 (Corrected 9/25/03)
                                  ___________

Before HANSEN, Chief Judge,1 RICHARD S. ARNOLD and BYE, Circuit Judges.
                               ___________

RICHARD S. ARNOLD, Circuit Judge.

        The United States placed Angela Johnson, the defendant in this case, in a small
jail where it was likely that she would encounter an inmate, Robert McNeese, who
had acted as an informant for the government in the past. Mr. McNeese was able to
elicit damaging information from Ms. Johnson about her involvement in the murder
of three government witnesses and one witness’s two young daughters. Ms. Johnson

      1
       The Hon. David R. Hansen stepped down as Chief Judge of the United States
Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003.
He has been succeeded by the Hon. James B. Loken.
moved to suppress Mr. McNeese’s testimony on the ground that he was a government
agent when he talked to her, and that use of the testimony against her would therefore
violate her Sixth Amendment right to counsel. The District Court granted her motion,
and the government appealed. We hold that the District Court misconstrued our
precedent in reaching this conclusion. We reverse the District Court’s order
suppressing the testimony in question and remand this case for further proceedings
consistent with this opinion.

                                          I.

       In 1993, a grand jury indicted Dustin Honken for conspiracy to distribute
methamphetamine. A witness who was to testify against him disappeared, as did the
witness’s girlfriend and her two young daughters. Later, another witness in the case
vanished. By March of 1995, the government was forced to abandon its case against
Mr. Honken because of a dearth of witnesses to testify against him. However, the
government continued its investigation. Angela Johnson, Mr. Honken’s girlfriend at
the time of the disappearances, was indicted in July of 2000 for aiding and abetting
the murder of the five witnesses, aiding and abetting the solicitation of the murder of
witnesses, and conspiring to interfere with witnesses. 18 U.S.C. §§ 1512, 373, 371.2
She was arrested on July 30, 2000. The government had Ms. Johnson sent to the
Benton County Jail in Iowa.

       The government knew that Robert McNeese, an inmate with a history of
trading information he gathered in prison for favorable treatment, was already housed
at the Benton County Jail. By August 7, 2000, Mr. McNeese had established contact
with Ms. Johnson. Thereafter, they communicated openly or surreptitiously as

      2
       A grand jury returned a second indictment against Ms. Johnson on August 30,
2001. That indictment charged her with five counts of committing murders while
engaged in a drug-trafficking conspiracy and five counts of committing murders
while engaged in a continuing criminal enterprise. 21 U.S.C. § 848(e).

                                         -2-
opportunities presented themselves. It is clear that some of the jailers knew that they
were in contact and made only token efforts to sever the link between them.
Detective Wright, who was in charge of investigating incidents at the jail, learned of
these exchanges and ordered Mr. McNeese to stop communicating with Ms. Johnson.
Detective Wright had Ms. Johnson moved to a new cell, but the move merely altered
her channels of communication with Mr. McNeese, not the frequency of contacts.

       A month later, Mr. McNeese told a prison official that he had convinced Ms.
Johnson that he could get a prisoner in another jail to confess to the five murders she
was charged with, so that Ms. Johnson could sue the government for false
imprisonment and split the proceeds of such a suit with Mr. McNeese. Mr. McNeese
had also obtained some incriminating admissions from Ms. Johnson. The official told
Mr. McNeese not to deal with Ms. Johnson until the officer could get instructions on
how the situation should be handled.

      Five days later, on September 11, 2000, Mr. McNeese met with officials to
receive “listening-post” instructions regarding Ms. Johnson. All parties agree that
Mr. McNeese was acting as a government agent from this point forward. The next
day he signed a plea agreement that had been drafted back on September 7, 2000, in
another case. This agreement required that Mr. McNeese cooperate in cases that
might arise in the Northern District of Iowa. Two weeks later, Mr. McNeese
disclosed to the government the information that he had extracted from Ms. Johnson
while they had been in jail together.

       The government filed a notice of intent to use Ms. Johnson’s disclosures to Mr.
McNeese and evidence derived therefrom. Ms. Johnson moved to suppress that
evidence. She pointed out that she was under indictment (the first of the two
indictments involved in this case) at the time of her conversations with Mr. McNeese.
Accordingly, her right to counsel under the Sixth Amendment had attached. She
asserted, moreover, that Mr. McNeese was a government agent at the time of all of

                                         -3-
his conversations with her, and that he had deliberately elicited from her the
information that the government sought to introduce. In support of this contention,
Ms. Johnson cited Massiah v. United States, 377 U.S. 201 (1964). After an
evidentiary hearing the District Court filed an opinion granting Ms. Johnson’s
motion. United States v. Johnson, 196 F. Supp. 2d 795 (N.D. Iowa 2002). The major
issue discussed in the opinion was whether Mr. McNeese was a government agent
before September 11, 2000. The District Court held that he was. From the order
granting Ms. Johnson’s motion to suppress, the United States appeals.

                                         II.

       The leading Supreme Court case in the area is, as indicated, Massiah v. United
States, supra. The case holds that the Sixth Amendment rights of a defendant were
violated “when there was used against him at his trial evidence of his own
incriminating words, which federal agents had deliberately elicited from him after he
had been indicted and in the absence of his counsel.” 377 U.S. at 206.

       We have recently had occasion to apply and explain the doctrine of Massiah.
In Moore v. United States, 178 F.3d 994 (8th Cir. 1999), the defendant Moore
claimed that his Sixth Amendment right to counsel had been violated by the use
against him at trial of statements he had made that were overheard by a fellow inmate,
one Joseph Hartwig. Before he overheard the statements in question, Hartwig had
signed an agreement with the government to provide a proffer of information
concerning his knowledge of drug-related criminal activity. The charges against
Moore were not drug-related, but Hartwig thought that he might benefit from
providing information about Moore. He did provide this information, and it was used
against Moore at his trial. We held that the testimony was properly admitted. Two
elements of the Massiah doctrine were in issue: whether Hartwig was a government
agent, and whether he deliberately elicited any information from Moore. Our opinion



                                         -4-
held against Moore and for the government on both of these points. As to whether
Hartwig was a government agent, we stated:

                    “[A]n informant becomes a government agent for
             purposes of [Massiah] only when the informant has been
             instructed by the police to get information about the
             particular defendant.” United States v. Birbal, 113 F.3d
             342, 346 (2d Cir. 1997) (collecting cases). To the extent
             there was an agreement between Hartwig and the
             government, there is no evidence to suggest it had anything
             to do with Moore. The proffer agreement simply
             evidenced Hartwig’s willingness to disclose his knowledge
             of drug activity in hopes of receiving a more favorable plea
             agreement. Even if we were to accept Hartwig’s view that
             the proffer applied to his knowledge of any illegal activity,
             there is still no evidence that Hartwig was directed to
             procure additional information from Moore, or anybody
             else.


Moore, 178 F.3d at 999.

      There is nothing obscure about this language. Quoting the Second Circuit’s
opinion in Birbal, we said that an informant becomes a government agent for Massiah
purposes only when the informant has been instructed by the police to get information
about a particular defendant. (The same position has now been taken by the First
Circuit. See United States v. LaBare, 191 F.3d 60, 65 (1st Cir. 1999).) As we noted
in Moore, the Birbal opinion, the rule of which we adopted, collected cases on the
subject. Among these cases were some opinions that took what might be called a
broader approach, as opposed to the bright-line, specific language of Birbal. We of
course were aware of these cases at the time, but nevertheless adopted the Birbal
formulation as the rule of this Circuit.



                                         -5-
      If the Moore opinion is applied as written, Ms. Johnson’s position cannot
prevail in the present case. Mr. McNeese was not, at any time before September 11,
2000, instructed, either in express words or by implication, to get information about
Ms. Johnson. Mr. McNeese had been helpful to the government in the past. He had
proved himself an expert interrogator and informant. We may assume that the
government, when Mr. McNeese was placed in the same institution with
Ms. Johnson, hoped that Mr. McNeese might come up with something helpful,
especially as, at that time, the bodies of the murder victims had not been found. All
of these facts, however, when taken together, do not amount to an instruction to
Mr. McNeese to get information about Ms. Johnson in particular.

       The District Court acknowledged that in “ Moore . . . the Eighth Circuit Court
of Appeals analyzed the ‘agency’ element of a ‘Massiah violation’ in such a way as
to suggest that there is . . . a ‘bright line rule’ at least in this circuit . . ..” United
States v. Johnson, 196 F. Supp. 2d at 847. The District Court continued:

             Thus, in Moore, the Eighth Circuit Court of Appeals
             appeared to rely on a sort of “bright line rule” for
             determination of the agency of an informant, based on
             whether or not “ ‘the informant has been instructed by the
             police to get information about the particular defendant.’ ”
             Id. at 999 (quoting Birbal, 113 F.3d at 346).


196 F. Supp. 2d at 848. The District Court then referred to Birbal as “the decision
from which the Eighth Circuit Court of Appeals in Moore extracted what appears to
be its ‘bright line rule.’ ” 196 F. Supp. 2d at 848. The District Court continued:
“Moore and Birbal seem to recognize a ‘bright line rule.’ ” 196 F. Supp. 2d at 849.

      Despite this reading of Moore, with which, incidentally, we agree, the District
Court declined to apply the rule of Moore in the present case. Instead, it held that,


                                           -6-
under all of the facts in the record before it, agency for Massiah purposes was
established in the absence of express instructions from the government to get
information about a particular defendant “by proof of an implicit agreement arising
from a longstanding informant’s ‘roving agency’ or ‘symbiotic relationship’ ” with
the government. 196 F. Supp. 2d at 857.

       The District Court gave two reasons for declining to follow the plain language
of Moore. First, the Court observed, and correctly, that the facts in Moore were
different. The informant in Moore was not a longstanding cooperator with the
government. He had not previously obtained information from a long list of targets
of criminal investigations, nor had he previously obtained or been promised benefits
in return by government agents. It is certainly true that Moore could have been
decided on narrower grounds. We could have pointed out that Hartwig had no
extensive history of cooperation with the government in other cases. We did not,
however, choose to do so. Instead, we adopted the rule of Birbal, already referred to
several times. It will often be possible to reinterpret opinions in past cases and to
theorize that they could have been based on narrower grounds. This is not a good
enough reason, we think, for disregarding the plain language of such opinions. The
Moore Court chose to adopt what the District Court correctly perceived as a bright-
line rule. If an informant has not been instructed by the police to get information
about the particular defendant, that informant is not a government agent for Massiah
purposes. Moore does not say that an informant who has been instructed to get
information about a particular defendant is a government agent, but that one may be
a government agent in other circumstances, as well. The opinion says that an
informant becomes a government agent “only when the informant has been instructed
by the police to get information about the particular defendant.” Moore, 178 F.3d at
999. We do not think that this language can be explained away. It is binding on the
District Court and on this panel.




                                        -7-
       Second, the District Court believed that the Moore opinion, if read to state a
controlling bright-line rule, would be inconsistent with “the Sixth Amendment
principles established in the Supreme Court’s Massiah line of cases . . ..” 196
F. Supp. 2d at 861. We respectfully disagree with this line of reasoning. Cases like
United States v. Henry, 447 U.S. 264 (1980), on which the District Court particularly
relied, were decided long before Moore. It must be assumed, and it is in fact true, that
this Court was well aware of Henry and other authorities in the Massiah line of
Supreme Court cases at the time the Moore opinion was written. Moore, in other
words, must be taken as this Court’s authoritative interpretation of those Supreme
Court cases. If Henry had been decided after Moore, a different issue would be
presented, but that is not the case here. Neither a district court nor a subsequent panel
of this Court is free to disregard a previous opinion of this Court on the theory that
that earlier opinion was an incorrect interpretation of Supreme Court authority
existing at the time. At the time that Moore was decided, it was already clear that
some of our sister circuits were using different approaches to resolve the question of
agency in Massiah cases. Those courts, presumably, believed that they were acting
consistently with Supreme Court precedent. It will frequently happen that different
circuits will interpret a line of Supreme Court cases in somewhat different ways. That
is what has occurred here. This Circuit’s interpretation is contained in Moore, and
we are not free to depart from it.

                                          III.

       As we have noted, supra at 2 n.2, Ms. Johnson is also the subject of a second
indictment, based on the same murders referred to in the first indictment. After filing
its opinion granting Ms. Johnson’s motion to suppress with respect to the first
indictment, the District Court filed a second opinion, United States v. Johnson, 225
F. Supp. 2d 1022 (N.D. Iowa 2002), holding that the suppression order would apply
also to any trial under the second indictment. The Court reached this conclusion on
the theory that the second indictment, when closely analyzed, actually charged the

                                          -8-
same offenses as the first one. The government has also appealed from this holding.
In view of our decision that the District Court erred in granting the motion to suppress
with respect to the first indictment, we need not separately address any issue of
suppression with respect to the second indictment.

                                          IV.

      For the reasons given, the order of the District Court, granting Ms. Johnson’s
motion to suppress evidence, is reversed. This cause is remanded to the District
Court for further proceedings consistent with this opinion.

BYE, Circuit Judge, dissenting.

       This court's decision in Moore v. United States, 178 F.3d 994 (8th Cir. 1999),
adopting the bright-line rule of United States v. Birbal, 113 F.3d 342, 346 (2d Cir.
1997), is binding on the courts below and on this panel. There is no doubt or
argument about that. The district court framed its decision as a rejection of Moore
and, in the process, drew such to the attention and focus of this panel's majority.

       The district court's decision, however, in my view, is not inconsistent with
Moore. Moreover, facts found by the district court but overlooked by the majority
support the conclusion McNeese was a government agent when soliciting
incriminating statements from Johnson. Because I suggest the district court was on
sound factual and legal ground when it held McNeese was a government agent who
deliberately elicited incriminating statements from Johnson in the absence of counsel
after her Sixth Amendment rights had attached, I respectfully dissent.




                                          -9-
                                           I

       In Massiah v. United States, 377 U.S. 201, 206 (1964), the Supreme Court
recognized a defendant is denied basic protections of the Sixth Amendment "when
there [is] used against [her] at [her] trial evidence of [her] own incriminating words,
which federal agents had deliberately elicited from [her] after [s]he had been indicted
and in the absence of counsel." Id. at 206. The right to counsel attaches not only to
direct confrontations by known government officers, but also to "indirect and
surreptitious interrogations" by covert government agents and informants. United
States v. Henry, 447 U.S. 264, 272-73 (1980). The majority tethers its decision to the
agency prong, holding McNeese was not a government agent while he solicited
incriminating statements from Johnson.

       In Moore we held "an informant becomes a government agent for purposes of
[Massiah] only when the informant has been instructed by the police to get
information about the particular defendant." 178 F.3d at 999 (quoting Birbal, 113
F.3d at 346) (emphasis added). This asks a couple of questions: was there a
government instruction to provide information, and was Moore the subject or target
of the instruction? The case does not define "instruction."

       The question presented in Moore was whether an informant, by entering into
an agreement to cooperate with the government for one purpose, was also a
government agent when he obtained information from someone clearly outside the
scope of the agreement to cooperate. The informant in that case, Hartwig,
indisputably had an agreement with the government, however, "there [was] no
evidence to suggest it had anything to do with Moore." Id. Because Moore was not
the target or subject of the government instruction to obtain information, Hartwig was
merely acting as an "entrepreneur" or "volunteer" when he obtained Moore's
incriminating statements. Entrepreneurs and volunteers are not government agents.



                                         -10-
United States v. Watson, 894 F.2d 1345, 1347 (D.C. 1990); Kuhlmann v. Wilson,
477 U.S. 436, 459 (1986).

       McNeese's history of cooperating with the government does not sufficiently
distinguish this case so as to remove it from Moore's reach. I therefore agree with the
majority opinion; Moore applies to the decision at hand. Proper application of Moore
would read as follows: McNeese's history as a government informant does not make
him a government agent with respect to Johnson; there must be governmental
instruction to get information about her.

      This case, however, involves substantial evidence of instruction to secure
information about Johnson which goes beyond McNeese's history as an informant.
While Moore directs only government "instruction" creates agency, it offers no
guidance on what kind of instruction will suffice, or how much. My view is the
principal defect in the majority opinion is it does not apply the "instruction" test
announced in Moore or explain its employment where there is evidence of
government instruction. The real issue to me, sidestepped by the majority, is what
kind of government instruction, and how much of it, makes an informant a
government agent for Messiah purposes.

                                          II

      The majority's treatment of the facts found by the trial court deserves special
mention. "When a district court grants a motion to suppress evidence, we review its
findings of fact for clear error, and its conclusions of law de novo." United States v.
Guevara-Martinez, 262 F.3d 751, 753 (8th Cir. 2001). In the memorandum and order
under review the district court laboriously detailed the evidence taken at the
suppression hearing and explained the foundation for its factual findings with
admirable care. Without so much as a nod to the proper standard of review, however,
the majority ignores many of these well-grounded findings of fact.

                                         -11-
       Johnson did not land in the same jail as the informant by happenstance, as did
the defendants in Moore and Birbal. Instead, the lawyer prosecuting Johnson directed
the U.S. Marshal to send her to Benton County jail, the only facility where his
superstar informant, a man, would have access to her. The prosecutor did so
anticipating the intense publicity surrounding Johnson's arrest for the murders and the
still-missing bodies would prompt McNeese to interrogate Johnson. The district
court found the prosecutor must have known McNeese was likely to obtain
incriminating statements from Johnson.

        Anticipating it would be a pivotal fact, the issue of the prosecutor's motivation
for sending Johnson to Benton County jail was hotly disputed in the suppression
hearing. The government claimed the prosecutor wanted Johnson in Benton County
jail for security reasons but the district court rejected that reason as pretextual. The
district court explained it disbelieved the government's proffered motivation for two
reasons: inconsistencies in the prosecutor's evidence and the testimony of the U.S.
Marshal indicating prosecutors rarely direct the placement of prisoners. I see no clear
error in the district court's finding the prosecutor was motivated not by security
concerns but by an intent to circumvent Johnson's Sixth Amendment right to counsel.

       In fact, McNeese correctly interpreted the prosecutor's actions as an instruction
to help the government obtain information from Johnson, later saying he believed
Johnson was incarcerated with him so he "could work her." And work her, he did.
The prosecutor received confirmation his plan had worked no later than August 14,
when he received a memorandum from Detective Wright confirming McNeese was
interrogating Johnson about the murders. These well-supported facts informed the
district court's conclusion McNeese was a government agent, and they should govern
ours. The majority, however, fails to mention these facts.




                                          -12-
       On appeal the government did not assert the district court committed clear
error, and the majority found no such error. Nonetheless, the majority carefully
selects facts which paint a picture of a prosecutor with good kismet, not one with an
unconstitutional plan. By ignoring facts evincing the prosecutor sought to circumvent
the Sixth Amendment, the majority made its holding more palatable. But in my view
this panel has no more business ignoring findings of fact made by the district court
(in the absence of clear error) than the district court had in purporting to repudiate our
legal decisions. I therefore disagree with the majority's treatment of the district
court's findings of fact.

                                           III

      Onwards, then, to the meatier issue of the day: whether the district court erred
in concluding McNeese was a government agent when he interrogated Johnson.
Moore tells us McNeese was a government agent only if he was "instructed" by the
government to get information about Johnson. The majority recognizes it is possible
for the instruction to be by implication. Ante at 6. I agree; it would diminish
Messiah, Henry and Maine v. Moulton, 474 U.S. 159 (1985), if we were to limit
agency to cases where the government gave the informant direct, explicit oral or
written instructions to obtain evidence regarding a defendant.

       The acts of the prosecutor, whom McNeese knew well and who obtained a
substantial reduction in McNeese's sentence in exchange for other informing
activities, spoke volumes to McNeese. The prosecutor had Johnson sent to Benton
County jail so McNeese could interrogate her, McNeese correctly interpreted the
prosecutor's acts and obtained the information. To quote John Wayne, "What do you
want me to do? Draw you a picture? Spell it out?" THE SEARCHERS (Warner
Brothers 1956). McNeese didn't need the instructions spelled out; both he and the
prosecutor knew the score.

                                          -13-
      The government did not obtain Johnson's incriminating statements by luck or
happenstance; McNeese was not an independent entrepreneurial jailhouse informant
who crossed Johnson's path by chance. Their meeting was purposefully arranged by
the prosecutor to "circumvent[] the accused's right to have counsel present in a
confrontation between the accused and a state agent." Robinson v. Clarke, 939 F.2d
573, 576 (8th Cir. 1991) (quoting Maine v. Moulton, 474 U.S. at 176).

      The district court's conclusion McNeese was a government agent draws
considerable support from the decision in Maine v. Moulton, in which the Supreme
Court explained:

      The Sixth Amendment . . . 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. . . .
      [K]nowing exploitation by the State of an opportunity to confront the
      accused without counsel being present is as much a breach of the State's
      obligation not to circumvent the right to the assistance of counsel as is
      the intentional creation of such an opportunity. Accordingly, the Sixth
      Amendment is violated when the State obtains incriminating statements
      by knowingly circumventing the accused's right to have counsel present
      in a confrontation between the accused and a state agent.

474 U.S. at 176. The government's instruction to McNeese to obtain incriminating
information from Johnson made him a government agent. Because McNeese
deliberately elicited the incriminating information it cannot be used to secure her
conviction.




                                        -14-
                                         IV

      Although the district court was unwise to characterize its decision as departing
from Moore, its ruling was nevertheless in line with that decision. There is ample
evidentiary support for the conclusion the government instructed McNeese to obtain
information from Johnson about the murders. Because I conclude the district court
did not err in holding McNeese was a government agent when he interrogated
Johnson outside the presence of counsel after her Sixth Amendment rights had
attached, I respectfully dissent.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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