              IN THE SUPREME COURT OF IOWA
                              No. 13–0739

                          Filed June 30, 2016

                     Amended September 20, 2016


STATE OF IOWA,

      Appellee,

vs.

JUSTIN ALEXANDER MARSHALL,

      Appellant.


      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Johnson County, Sean W.

McPartland, Judge.



      The State seeks further review of a court of appeals decision

reversing the defendant’s conviction for murder in the first degree.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED.



      Kent A. Simmons, Bettendorf, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Janet Lyness, County Attorney, and Meredith Rich-

Chappel, Assistant County Attorney, for appellee.
                                      2

APPEL, Justice.

         In this case, we consider whether the State violated Justin

Marshall’s right to counsel through the acquisition of evidence from

jailhouse informants. The district court rejected the claim, and a jury

convicted Marshall of first-degree murder. The court of appeals reversed,

holding the State had violated Marshall’s Sixth Amendment right to

counsel by using a jailhouse informant to obtain incriminating

information when Marshall was represented by counsel.         Finding the

error was not harmless, the court of appeals reversed Marshall’s

conviction.

         In light of the remand, the court of appeals also considered

whether the trial court’s instructions on aiding and abetting and joint

criminal conduct violated due process of law because the instructions

were not supported by substantial evidence.         The court of appeals

rejected Marshall’s due process claim.

         We granted further review.   We retain discretion to consider all

issues raised in the original appeal or limit our opinion to selected

issues. Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 844

(Iowa 2009).     In our discretion, we consider only Marshall’s right-to-

counsel challenge.     The court of appeals ruling on the due process

challenge to jury instructions stands.

         For the reasons expressed below, we affirm in part and vacate in

part the court of appeals decision, reverse the trial court ruling on the

violation of the right-to-counsel issue, and remand the matter for a new

trial.

         I. Procedural and Factual Background.

         A. Overview of the Crime. John Versypt was the landlord of the

Broadway Condominiums complex in Iowa City.          On October 8, 2009,
                                         3

Versypt was shot while hanging a sign at the complex. He suffered two

gunshot wounds, one to his forehead and the other to his right hand,

along with other injuries. He was discovered by a tenant shortly after

being shot. On the ground near Versypt were a wallet, a gun, a few tools,

and the sign. Versypt died at the scene.

       Charles Thompson and Marshall were both staying at an

apartment in the complex with Marshall’s aunt on the date of the

murder. In February 2010, the State originally charged Thompson 1 with

murder in connection with Versypt’s death. Police, however, soon came

to suspect Marshall in connection with the slaying. On July 12, 2011,

the lead detective on the case for the Iowa City police, Jennifer Clarahan,

swore out a complaint against Marshall for the murder. The complaint

was filed in Johnson County District Court the following day.

       B. Meetings with Confidential Informants Prior to and After

Arrest of Marshall.        On July 12, Detective Clarahan and Detective

Michael Smithey met with Carl Johnson, a federal prisoner, at the

Muscatine County Jail. They told Johnson they sought information on

Charles Thompson, Courtney White, and Justin Marshall in connection

with Versypt’s murder. At the time of the meeting, Marshall was at large

in Texas. When Marshall was arrested in Texas and brought to Iowa, he

was immediately sent to the Muscatine County Jail.                  Marshall was

charged with Versypt’s murder on August 1, 2011. Iowa City police had

subsequent contacts with Johnson and two other inmates—Earl

Freeman and Antonio Martin—at the Muscatine County Jail. All three




       1Thompson’s trial in connection with Versypt’s murder ended in a mistrial. The

State declined to retry Thompson.
                                    4

inmates had obtained information about the crime from Marshall while

he was incarcerated in Muscatine.

      C. Disclosure of Relationship with Confidential Informants. In

March 2012, the State identified the inmates as additional witnesses in

Marshall’s upcoming trial in a notice of additional testimony. The State

noted that Martin and Johnson were in “a cooperation agreement with

the United States Attorney for the Southern District of Iowa.”        The

minutes, however, did not indicate any other relationship between the

three inmates and the State.

      Marshall’s trial was scheduled to commence on January 22, 2013.

On January 17, Marshall’s counsel received an email from the State with

two letters from Freeman to Detectives Clarahan and Smithey dated

September 21 and October 26, 2011.      In the September 21 letter from

Freeman to Detective Clarahan, Freeman stated that he was in the

cellblock with Marshall, that he could back up information the State had

been provided on Marshall, and that if Marshall were kept in the block

“we could get a lot more information.”      The October 26 letter from

Freeman to Detectives Clarahan and Smithey asked, among other things,

that Detectives Clarahan and Smithey advise federal prosecutors and

Freeman’s attorney that “[Freeman] helped in [their] investigation and

prosecution of Justin Marshall.”

      The trial began as scheduled. Freeman was deposed a second time

in the middle of the trial on the evening of January 31 to resolve an

unrelated matter.   At this time, Marshall’s attorney received a letter

dated January 26, 2013, from the Johnson County Attorney to Richard

Westphal, a federal prosecutor in charge of handling Freeman’s pending

federal drug prosecution. In this letter, the county attorney explained in

detail how Freeman cooperated first with the trial of Thompson and then
                                    5

with the trial of Marshall for the death of Versypt. The county attorney

stressed that, while Freeman’s information had been helpful regarding

the Thompson matter, it was also “extremely helpful” to the State in

Marshall’s prosecution. She closed by requesting that Freeman receive a

reduction in his federal sentence because of his assistance in both the

Thompson and Marshall cases.

      D. Trial Testimony and Midtrial Motion to Suppress.

      1. Opening trial testimony of Detective Smithey. Detective Smithey

was called as a witness at Marshall’s trial. He described that pursuant

to a cooperation agreement, a federal defendant could get a reduction in

his or her sentence for providing information. Such a reduction would be

recommended by the United States Attorney and approved by a judge.

Detective Smithey testified that at the time of the July 12 meeting with

Johnson, Johnson had a cooperation agreement with the government.

Johnson had already pled guilty and was awaiting sentencing. Detective

Smithey testified that when the police interview someone in connection

with a cooperation agreement, they would not provide “specific

information about how [the informant] should gather information.”

Detective Smithey stated it was his understanding that providing specific

instructions “would be bypassing . . . certain rights that people have who

are incarcerated.”

      Detective Smithey testified he told Johnson at the July 12 meeting

that the State was interested in information related to the Versypt

murder and particularly interested in information about Charles

Thompson, Justin Marshall, and Courtney White. He made no promises

regarding what Johnson would receive in exchange for the information,

but Johnson was aware or was made aware that the United States

Attorney would be advised of any information provided.          Detective
                                     6

Smithey testified that, pursuant to the July 12 meeting, Johnson “was

trying to provide information that would be used to determine what

reduction [in sentence] he would receive.” He testified it was probably

reasonable to assume that Johnson would communicate the State’s

interest in Marshall to other cooperating witnesses.

      2. Marshall’s midtrial motion to suppress. Marshall then made an

oral, midtrial motion to suppress the testimony of Johnson, Martin, and

Freeman. At a hearing on the motion, Marshall offered into evidence the

September 21, 2011, October 26, 2011, and January 26, 2013 letters.

Marshall maintained that Freeman, Johnson, and Martin “were engaged

in a pattern of seeking out Mr. Marshall [and] of working at the behest of

the police or agents of the State while Mr. Marshall was represented by

Counsel.”   Marshall asked the court to prohibit the State from calling

Johnson, Martin, and Freeman to testify about Marshall’s conversations

with them because it would be an “end run around Mr. Marshall’s right

to have counsel present while agents of the State are questioning him.”

While Marshall’s counsel stated that he was challenging the testimony of

the three informants on grounds of Marshall’s right to counsel, he did

not explicitly mention either the Sixth Amendment of the United States

Constitution or article I, section 10 of the Iowa Constitution.

      The district court took a recess, read the letters, and then

reconvened the hearing to ask Marshall and the State for relevant

authority. After the brief recess, the State cited Kuhlmann v. Wilson, 477

U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986), and Moore v. United

States, 178 F.3d 994 (8th Cir. 1999), as standing for the proposition that

an “informant becomes a government agent only when the informant has

been instructed by the police to get information about the particular
                                     7

defendant.” Marshall’s attorney did not offer caselaw. The State then

called Detectives Smithey and Clarahan as witnesses.

      3. Testimony of Detective Smithey at midtrial hearing on motion to

suppress. Detective Smithey testified that he first met with Johnson on

things unrelated to the Versypt murder. He explained that on July 12,

2011, he had a meeting with Johnson, Johnson’s attorney, and Detective

Clarahan at the Muscatine County Jail “to do a proffer agreement” with

Johnson. Detective Smithey stated that the purpose of the meeting was

“[t]o find out if Carl Johnson had information about . . . the death of

John Versypt.” He stated that he did not request Johnson gather more

information, but that he “only requested that [Johnson] contact [him] if

he learned anything further.” Detective Smithey further stated that he

did not make any effort to have Marshall placed in a cell with anyone in

particular.

      Detective Smithey testified that on September 12 Johnson’s

attorney informed him that Johnson now had information about the

Versypt murder.    As a result, Detective Smithey and Johnson met on

September 15. At the meeting, Detective Smithey said Johnson told him

about statements made by Marshall while they were incarcerated in

segregation together at the Muscatine County Jail in August of 2011.

Detective Smithey repeated that he did not ask Johnson “to do anything

to try to obtain more information or any information” from Marshall

regarding Versypt’s death. Detective Smithey testified he told Johnson

“[o]nly to contact [him] if he learned anything.”

      Detective Smithey further testified that he met with Freeman on

October 3 at the Muscatine County Jail to discuss what he had learned

about Marshall’s involvement in the Versypt murder. Detective Smithey

said that he did not ask Freeman to do anything further in the
                                    8

investigation, only “to contact [the detective] if there was additional

information [Freeman] wished to relay.” Detective Smithey testified that

after speaking with Freeman he also met with Antonio Martin at the

Muscatine County Jail on October 3. According to Detective Smithey, he

happened to see Martin after completing his session with Freeman.

Detective Smithey stated he had previously done proffer interviews with

Martin on other matters. He further conceded that he “may have asked

[Martin] if he had any knowledge” of the Versypt murder during one of

the first proffers, but if so, it was a simple “do you know any information

about this?” Detective Smithey stated that he did nothing to put Martin

or Freeman “in the same vicinity” of the Muscatine County Jail with

Marshall. He testified he did not ask Freeman, Martin, or Johnson “to do

anything” to gather further information from Marshall.

      4. Testimony of Detective Clarahan at midtrial hearing on motion to

suppress. Detective Clarahan also testified at the hearing on the motion

to suppress.   Detective Clarahan said that she met with Johnson on

July 12, 2011.    She stated she did not request Johnson to obtain

information from Marshall, nor did she hear anyone make such a

request.   She also said that she had not arranged for Johnson to be

placed in the same cellblock as Marshall. Detective Clarahan confirmed

receipt of the two letters that Freeman had sent her. She also stated she

received a phone call from Freeman at home on October 1, 2011, during

which Freeman stated he had information about Versypt’s murder.

Detective Clarahan told the court she met with Freeman along with

Detective Smithey on October 3, but had not joined Detective Smithey

when he met with Martin.       Detective Clarahan said she did not ask

Freeman to do anything on behalf of the State.
                                    9

      At the motion to suppress, no party presented the testimony of

Freeman, Johnson, or Martin. Further, Marshall did not testify. As a

result, no evidence was offered at the motion to suppress regarding the

role or nature of the participation of each of the informants in the

communications between Marshall and the informants about the crime.

      5. Ruling on the motion to suppress. After hearing the testimony of

Detectives Smithey and Clarahan, the district court overruled the motion

to suppress.    The court recognized and the State conceded that

Marshall’s Sixth Amendment right to counsel had attached. The court

ruled, however, that in order to violate the Sixth Amendment right to

counsel, “[t]he defendant must demonstrate that the police and their

informant took some action beyond merely listening that was designed

deliberately to elicit incriminating remarks.” The court concluded that

the case “presents just the sort of luck or happenstance that resulted in

these gentlemen coming forward and providing information to the State.”

      6. Freeman trial testimony. After ruling on the motion to suppress,

trial resumed. The three informants then testified on behalf of the State.

Freeman said that he first met Marshall when he was placed in the same

cellblock in the Muscatine County Jail. Freeman testified that Marshall

approached him, stating that he was not satisfied with his attorney, and

asked Freeman to help him draft a motion to appoint new counsel.

According to Freeman, inmates Antonio Martin and Richard Sandifer

sent Marshall to him. Freeman testified that Sandifer told Marshall that

Freeman had filed a motion for a different attorney and that the motion

had been granted. Freeman said that he did not know whether Johnson

was involved in sending Marshall to him.

      Freeman stated that he wrote the motion for new counsel for

Marshall, which Marshall filed with the court.    Freeman declared that
                                      10

Marshall told him about Charles Thompson being tried for Versypt’s

murder, that Thompson was “acquitted on a mistrial,” and that Marshall

wanted to see if he could get his charge dropped from murder to

manslaughter. Freeman testified that he and Marshall went over a paper

that contained a definition of manslaughter in Freeman’s cell. According

to Freeman, he told Marshall that Marshall would have to convince his

own lawyer that Versypt’s death was an accident for manslaughter to

work.

        Freeman testified Marshall told him he intended to rob Versypt,

Versypt grabbed for the gun, the gun went off, and Versypt was shot in

the hand and in the head.        Freeman recalled Marshall told him that

Versypt fell and that he wiped off the gun with the front of his jacket and

“took off.”   According to Freeman, Marshall wanted him and another

inmate to go to their attorneys to “explain to them that Justin confessed

. . . to the shooting, but that it was an accident.” Freeman stated that he

told Marshall if he wanted to do that, he would need to write it down “so

all our stories would be the same.” Freeman testified, “[W]e all talked

about how he could try to convince his attorney that it was an accident.”

        The prosecutor asked Freeman whether he in any way tried to

push Marshall to make admissions. Freeman responded,

        I’d say yes. After he started to—admitting to doing it, yeah, I
        would probably say, yeah, I did push him to tell me
        information. . . . Once I realized that I thought he actually
        did it, I was, you know, wanting to know what happened.

Freeman testified that he was in prison on a federal charge of conspiracy

to manufacture methamphetamine and that he had not been sentenced

when he contacted the detectives about Marshall in October 2011.

Freeman stated he did not have a cooperation agreement with the United

States Attorney, but Freeman had hoped to get “cooperation time off”
                                       11

from his sentence for his testimony about the Versypt murder. Freeman

testified that he did not receive any reduction in his sentence because of

the information provided to the Iowa City police about Marshall. When

confronted with the January 26, 2013 letter from the Johnson County

Attorney to federal authorities, Freeman agreed that the letter might help

him get a reduction in his sentence in the future.

         7. Johnson trial testimony. Johnson stated he had been living at

Broadway Condominiums when Versypt was murdered. Johnson said he

was acquainted with Marshall but they were not good friends. Johnson

testified he talked to Marshall about the murder once shortly after the

event,    and   Marshall   indicated   that   “folks,”   apparently   meaning

Thompson, were responsible for the crime.

         In the summer of 2011, Johnson stated he was in jail after

pleading guilty to a federal charge of distributing cocaine and had a

proffer agreement with the United States Attorney’s Office to assist in

other investigations. Johnson said he had provided such assistance to

police in about four other cases. Johnson stated he had testified against

his coconspirator.      As part of his cooperation agreement, Johnson

testified that he met with Detective Smithey on July 12. At the July 12

meeting, Detective Smithey asked Johnson if he knew Marshall before

Johnson had been arrested.

         Johnson testified that he was placed in segregation at the

Muscatine County Jail because of jailhouse rule violations. According to

Johnson, Marshall was also in segregation at that time, and over a ten-

day period, they interacted during their hour-a-day reprieve from solitary

confinement when they were permitted to leave their cells.

         Johnson stated, “I asked him what was he in there for.” According

to Johnson, Marshall responded, “[T]hey got me for that landlord.” The
                                    12

State asked Johnson a series of questions limited to information that

Marshall told him about the crime.         In response to the series of

questions, Johnson testified,

      [H]e told me, he say that they didn’t have no evidence on him
      and they didn’t have no witnesses. The only witnesses they
      had was the police. . . . He told me that he—he left Iowa
      City.    He went to Burlington because the police kept
      bothering him and other people was implicating his name in
      a murder. . . . He said when the police came down there to
      Burlington, harassing him, threatening him he wasn’t going
      to see his family again if he didn’t tell them what happened,
      he told me that’s when he knew they didn’t really have
      evidence on him because they had previously before let him
      go, so that’s why they left and went to Burlington.

            . . . at first he said that they had nothing on him, and
      then he said all they had was a little gun powder on him. . . .
      He was looking at a lot of time. . . . He told me that him,
      Weezy [Thompson], and Calvin was in the hallway, they was
      all in the hallway playing dice.         After a while Charles
      Thompson left and went inside his apartment. That’s when
      he came up with the idea that he wanted to rob the
      landlord. . . . He say he wanted to rob the landlord because
      he knows some people pay with money and some pay with
      cash. . . .

            He said, after Weezy went into the house, when he
      came up with the idea, the robbery went wrong. . . . The
      landlord got shot. . . . All he said was it was real—the shot
      was loud. It was loud in the hallway, and that kind of froze
      him up, and after that he ran out the back to get away from
      the scene. . . . When he came back in the building, he was
      knocking on the door, but he was whispering because he
      didn’t want no one to know he was in the hallway. . . .
      Charles Thompson’s trial was coming up, and he said he was
      supposed to testify at his trial, and if he do, he was going to
      say that he [Thompson] did it. . . . To shift the weight off
      himself.

Although Johnson thus testified extensively and in considerable detail

about what Marshall said to him, the State did not ask, and Johnson did

not volunteer, what Johnson said in response to Marshall’s statements

or what his role was in the conversation after his initial inquiry.
                                    13

Likewise, the defense did not ask about what Johnson said or did when

Marshall provided him with the information.

      8. Martin trial testimony.   Martin stated that he was serving a

federal sentence and entered into a plea and cooperation agreement in

February of 2011. After entering into the cooperation agreement, Martin

said that he had been interviewed twice regarding information he had

about drug cases.      Martin said he testified against his cousin, a

codefendant in his own case. Martin claimed he did not know whether

he would get any kind of reduction for his testimony.     After testifying

against his cousin, however, Martin stated that his sentence was reduced

from between twenty-seven and thirty-two years to twelve years and one

month.

      Martin testified that he had not received a reduction for providing

information in the Marshall case and that he received no promises in

exchange for his testimony. Martin admitted, however, that he did hope

that he could receive a further reduction and that the United States

Attorney’s Office would ask the judge for a reduction.

      Prior to his incarceration, Martin stated he lived in the Broadway

Condominiums neighborhood and knew Marshall and Thompson.

Martin testified his last communication with Marshall was around

September 2009.

      After Marshall arrived at the Muscatine County Jail, Martin

testified that he was moved from one housing pod to the pod where

Marshall was incarcerated.     When in the same housing pod, Martin

recalled that Marshall told him, “[T]hey got me on that BS, that

Broadway case, that Broadway murder case.”        Martin further recalled

that later on, probably in September, Marshall told him “he didn’t have

nothing to do with it.”    Martin told Marshall that he—Martin—was
                                     14

testifying against one of his codefendants. Martin remembered that they

had additional conversations about Marshall’s situation.           As with

Johnson, the State asked Martin a series of questions about what

Marshall said to him. Martin testified Marshall told him that

       the person’s—victim’s fingerprints was on the gun, that the
       bullet went through his hand, through his face, and there
       was a drill, a wallet and something else next to the body or
       something that they found, and there was no money missing
       out of the wallet . . . [h]e was saying it’s a robbery . . . .

       Martin was next asked whether the two talked about Marshall

writing something down.       Martin testified that they had discussions

about a lesser charge and that Marshall might confess and tell his side of

the story.    Marshall asked Martin to get legal information for him

regarding the crimes of manslaughter and armed robbery.              Martin

testified,

       And I told him, you know, you might have to tell your side of
       the story if you’re going to get a lesser charge. So he went to
       write the story down, saying use me [Martin] as a jailhouse
       snitch and I can get your story out and it might help both of
       us. So he went and wrote it down and gave me what was his
       version of what happened.

Martin repeatedly emphasized that he told Marshall, “I said that you

might have to tell—tell your side of the story, you know, your

involvement in it, you know, because they—they say one thing.            You

might got to tell the truth of what really happened.”

       Martin testified that Marshall told him information about the crime

for which Marshall was charged. According to Martin,

       [H]e was giving me one account and he was saying that he
       was going to take the gun to sell it to somebody and run
       downstairs. Then . . . he started switching his story up, he
       started saying that he was at—at Junior’s house playing a
       game and got home. He was going to go downstairs to get
       him something to eat, you know. He was just like arranging
       his story. That’s when I told him just write it down.
                                     15

      Martin stated that Marshall provided him further details about the

crime:

      He said he went downstairs and somebody came up behind
      him saying something, coming, approaching him, and he got
      scared and he turned around and pulled the gun from his
      waistband. . . . He said it all happened so quick, you know.
      The gun went off and he dropped it and picked it back up
      and wiped it off and dropped it again and ran.

Martin testified that Marshall wrote down his story and that the plan was

“for [Martin] to take it to [his] lawyer . . . to get [Marshall’s] story out.”

Martin said that Marshall told him that he hoped that his story would get

him a lesser charge. Martin testified he began taking his own notes once

Marshall told him details of the crime to provide to his attorney. He then

set up a telephone meeting with his attorney on October 3 in a room set

up for prisoner conferences with attorneys. Martin stated he had with

him his notes about Marshall and Marshall’s notes about the crime.

During the conversation with his attorney, Detective Smithey entered the

room. Martin then told Detective Smithey that he “had some information

about the Broadway murder.” He showed Detective Smithey the yellow

legal pad with Marshall’s notes.     When Detective Smithey asked if he

could take the yellow legal pad, Martin responded no because “[Marshall]

didn’t know [he] was talking to [Detective Smithey] about that, and it

wasn’t the plan to give it to [Detective Smithey] right then.”       Instead,

Martin recalled, Detective Smithey made a copy and returned the yellow

legal pad to Martin.

      Martin testified that he knew Johnson and Freeman. Although he

was housed with Johnson in the same pod for two or three weeks in

August of 2011, Martin denied ever talking with Johnson.              Martin

admitted, however, that he and Freeman discussed what Marshall

should include in his written statement.
                                    16

      Through Martin, the State offered two exhibits purporting to be

Marshall’s handwritten notes into evidence. Along with other material in

the notes, Marshall provided Martin with a written description of the

events of October 8, 2011, in which Marshall claimed the shooting was

an accident. Marshall’s notes stated, “I gave up everything now you tell

me do the descriptions fit. I done told you the truth, now you telling me

that isn’t it.”   The exhibit also contained a definition of ignorance or

mistake of law in what appeared to be Marshall’s handwriting. On cross-

examination, Martin admitted that Marshall sought information from

him about the legal definition of manslaughter.     Martin repeated once

more that he “told [Marshall] to tell his side of the story.”        Martin

acknowledged that the Johnson County Attorney could write a letter to

the United States Attorney and ask for a reduction in his sentence for

testifying against Marshall.

      E. Verdict and Posttrial Motions. On February 7, 2013, the jury

found Marshall guilty of murder in the first degree. The verdict included

special interrogatories. No juror found Marshall guilty under the theory

of premeditation, willfulness, and deliberation.     Seven jurors found

Marshall guilty under the theory of felony murder. Eleven jurors found

Marshall guilty under the theory of aiding and abetting.         Two jurors

found Marshall guilty on the theory of joint criminal conduct.

      On March 13, 2013, Marshall’s attorney filed a joint motion in

arrest of judgment and for a new trial. Marshall argued the prosecution

engaged in prejudicial misconduct by withholding the two letters that

Freeman sent to the detectives in September and October 2011, which

the defense only obtained in January 2013. This, the defense argued,

prevented Marshall from making an effective suppression motion by

requiring the suppression hearing to be conducted “ad-hoc, on the fly”
                                       17

during trial.     The district court denied the motion. On the issue of

prosecutorial misconduct, the court stated the defense was aware of the

testimony of the three jailhouse informants well in advance of trial. The

district court also found that the defense had not established a Massiah

violation.    See Massiah v. United States, 377 U.S. 201, 207, 84 S. Ct.

1199, 1203, 12 L. Ed. 2d 246, 251 (1964).              According to the district

court,

         [T]he . . . Defendant had not established the informants were
         government agents at the time the information was solicited,
         a necessary requirement. . . . Rather, from the evidence in
         the record, it appear[ed] the inmates collected information
         prior to and without being approached by the police and
         later turned it over to the officers.

Because the court concluded the inmates were not governmental agents

at the time they solicited information from Marshall, the court found he

was not entitled to a new trial.

         F. Decision of Court of Appeals. Marshall filed a timely notice of

appeal, and we transferred the case to the court of appeals. The court of

appeals held that Johnson was acting as an agent of the State because

Detective Smithey asked Johnson to get information about Marshall’s

involvement in the Versypt murder on July 12, 2011, Johnson was being

“paid” in reduced prison time for the information as part of his proffer

agreement, and Detective Smithey “clearly . . . did not tell Johnson to be

a passive listener, nor did he communicate anything close to that.”

Therefore, the court held statements Marshall made to Johnson should

have been suppressed as violating Marshall’s Sixth Amendment right to

counsel.     However, the court of appeals did not find that Freeman or

Martin were acting as agents of the State when they obtained information

from     Marshall,   and   the     suggestion   that     Johnson    must   have
                                    18

communicated with Freeman or Martin about Marshall was not sufficient

to prove agency.

      The court of appeals, noting that the State had not raised the issue

of harmless error, declined to engage in a sua sponte harmless-error

review because the harmlessness of the error was debatable.                A

concurrence emphasized that the placement of Marshall, Freeman,

Johnson, and Martin in the Muscatine County Jail could hardly be

considered a coincidence.     A dissent took a different approach.        The

dissent focused on the question of deliberate elicitation.      The dissent

found the defendant failed to provide proof on this issue. As a result, the

dissent argued that the trial court should be affirmed in all respects.

      The State applied for further review, which we granted.

      II. Standard of Review.

      We review constitutional claims de novo. State v. Cox, 781 N.W.2d

757, 760 (Iowa 2010); State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).

      On a motion to suppress evidence obtained in violation of a

defendant’s constitutional rights, the defendant generally has the burden

of proving the violation by a preponderance of the evidence. State v. Post,

286 N.W.2d 195, 201–02 (Iowa 1979); accord United States v. Johnson,

225 F. Supp. 2d 1022, 1036 (N.D. Iowa 2002), rev’d on other grounds,

352 F.3d 339, 344 (8th Cir. 2003). While the burden may shift to the

state in certain situations, when a defendant alleges that an agent of the

state violated his right to counsel the defendant must show that the

violation occurred. United States v. Henry, 447 U.S. 264, 277, 100 S. Ct.

2183, 2190, 65 L. Ed. 2d 115, 126 (1980) (Powell, J., concurring) (“To

demonstrate an infringement of the Sixth Amendment, a defendant must

show that the government engaged in conduct that, considering all of the

circumstances, is the functional equivalent of interrogation.”).     But cf.
                                      19

United States v. Johnson, 196 F. Supp. 2d 795, 841 (N.D. Iowa 2002),

rev’d on other grounds, 338 F.3d 918, 923 (8th Cir. 2003) (noting that the

defendant conceded that she bore the burden of proof, but suggesting

that there could be a distinction in who bears the burden of proof with

respect to a Massiah violation on direct appeal rather than in a habeas

action).

        III. Preliminary Issue: Consideration of Trial Testimony on

Merits of Motion to Suppress.

        As noted above, the informants did not testify at the midtrial

motion to suppress hearing, but did testify at trial. Evidence offered at

trial may be considered in reviewing the merits of a previously

determined motion to suppress. State v. Brooks, 760 N.W.2d 197, 203–

04 (Iowa 2009).

      IV. Claimed Invasion of Right to Counsel Through Use of
Jailhouse Informant.

        A. Introduction.   Ours is an accusatorial, not an inquisitorial,

system of criminal justice. Rogers v. Richmond, 365 U.S. 534, 541, 81

S. Ct. 735, 739, 5 L. Ed. 2d 760, 766 (1961).         A defendant’s right to

effective assistance of counsel is critical to the fairness of the

proceedings.    See Maine v. Moulton, 474 U.S. 159, 170–71, 106 S. Ct.

477, 484, 88 L. Ed. 2d 481, 492–93 (1985). As noted in Henry, “[I]f the

Sixth Amendment ‘is to have any efficacy it must apply to indirect and

surreptitious   interrogations   as   well   as   those   conducted   in   the

jailhouse.’ ” 447 U.S. at 273, 100 S. Ct. at 2188, 65 L. Ed. 2d at 124

(quoting Massiah, 377 U.S. at 206, 84 S. Ct. at 1203, 12 L. Ed. 2d at

250).

        The use of jailhouse informants to obtain information from

defendants represented by counsel is problematic for a number of
                                      20

reasons. As noted by the United States Supreme Court, the jailhouse is

an unusual environment where a sense of camaraderie can mask real

interests, where defendants may be particularly vulnerable, and where

scheming and bravado are higher on the hierarchy of values than

reporting the truth. See Illinois v. Perkins, 496 U.S. 292, 303, 110 S. Ct.

2394, 2400, 110 L. Ed. 2d 243, 255 (1990) (Brennan, J., concurring);

Henry, 447 U.S. at 274, 100 S. Ct. at 2188–89, 65 L. Ed. 2d at 124

(“[T]he mere fact of custody imposes pressures on the accused;

confinement may bring into play subtle influences that will make [the

defendant]     particularly   susceptible   to   the   ploys   of   undercover

Government agents.”).

      Further, the use of jailhouse informants who stand to benefit—

sometimes substantially—for providing evidence against a defendant

raises substantial questions of reliability. The Supreme Court noted over

fifty years ago that “[t]he use of informers, accessories, accomplices, false

friends, or any of the other betrayals which are ‘dirty business’ may raise

serious questions of credibility.” On Lee v. United States, 343 U.S. 747,

757, 72 S. Ct. 967, 973, 96 L. Ed. 1270, 1277 (1952). On the question of

jailhouse informers particularly, the United States Court of Appeals for

the Fifth Circuit has observed that “[i]t is difficult to imagine a greater

motivation to lie than the inducement of a reduced sentence.”           United

States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987). More

recently, the Fourth Circuit has observed that use of jailhouse

informants is a “fertile field[] from which truth-bending or even perjury

could grow.”     United States v. Levenite, 277 F.3d 454, 461 (4th Cir.

2002); see also United States v. Bernal-Obeso, 989 F.2d 331, 334 (9th

Cir. 1993); Cervantes-Pacheco, 826 F.2d at 315; United States v.

Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980); Russell D. Covey,
                                   21

Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375,

1380 (2014) [hereinafter Covey].

      As the recent work of the Innocence Project demonstrates,

jailhouse informants have played a significant role in convicting innocent

persons. According to one study of persons exonerated by DNA evidence,

false informant testimony supported the wrongful conviction in twenty-

one percent of the cases.     See Jim Dwyer, Peter Neufield, & Barry

Scheck, Actual Innocence: Five Days to Execution and Other Dispatches

from the Wrongly Convicted 246 (2000); see generally Covey, 49 Wake

Forest L. Rev. at 1378.       The reliability problems associated with

informants poses a particular problem as they are often utilized in cases

where the state has little direct evidence. Covey, 49 Wake Forest L. Rev.

at 1418.

      With respect to the potential lack of reliability of informants, the

Supreme Court has responded by relying primarily on effective cross-

examination of informants. Hoffa v. United States, 385 U.S. 293, 311, 87

S. Ct. 408, 418, 17 L. Ed. 2d 374, 387 (1966). In order to provide the

defendant with effective means of cross-examination, the state has a

duty to disclose the fact that informants are working for the state. See

Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31

L. Ed. 2d 104, 108 (1972) (holding prosecutor had the duty to disclose to

the defense a promise of leniency given to a key witness); Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215,

218 (1963) (holding suppressing evidence favorable to the defense

violates due process).

      Finally, the use of jailhouse informants undercuts the role of

counsel as serving as a medium between the defendant and the state.

Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496. Many
                                    22

defendants have undue confidence in their ability to game the system

that would be tempered by effective counsel. In addition, counsel can

assist the defendant in developing an effective defense that may be

impaired by ill-considered and imprecise statements made in the

freewheeling jailhouse environment. See generally James J. Tomkovicz,

An Adversary System Defense of the Right to Counsel Against Informants:

Truth, Fair Play, and the Massiah Doctrine, 22 U.C. Davis L. Rev. 1, 39–62

(1988) [hereinafter Tomkovicz, Adversary System]; James J. Tomkovicz,

The Massiah Right to Exclusion: Constitutional Premises and Doctrinal

Implications, 67 N.C. L. Rev. 751, 766–67 (1989).

      On the other hand, the state is not deprived of evidence because

the defendant, acting on his own, has exercised poor judgment. The law

books are packed with occasions in which the defendant has been

apprehended primarily because of his or her own mistakes that, in

hindsight, are quite remarkable. As noted in State v. Leopardi,

      it is no more unfair to use the evidence [the defendant]
      exposed through his lack of guile than it is to turn against
      [the defendant] clues at the scene of the crime that a
      brighter, better informed, or more gifted criminal would have
      hidden.

701 A.2d 952, 956 (N.J. Super. Ct. App. Div. 1997). Where a defendant

unwisely spills his guts in the presence of a third party who simply

serves as a passive listener to a heartfelt confession, literally does

nothing to elicit the statement, and was simply in the right place at the

right time, there is very little rationale for suppressing the evidence on

right to counsel grounds. See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at

2630, 91 L. Ed. 2d at 384–85. The state should not be prohibited from

using evidence it discovers “by luck or happenstance.” Moulton, 474 U.S.

at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496.
                                    23

      Finally, there are questions of proof. As one authority has stated,

“[i]n-custody confessions are often easy to allege and difficult, if not

impossible, to disprove.”       Fred Kaufman, Report of the Kaufman

Commission on Proceedings Involving Guy Paul Morin (Robert N. Moles,

ed. Mar. 1998), http://netk.net.au/Canada/Morin22.asp; see also Fred

Kaufman, The Commission on Proceedings Involving Guy Paul Morin:

Executive Summary 9–14 (1998), http://www.attorneygeneral.jus.gov.on.

ca/english/about/pubs/morin/morin_esumm.pdf;         Covey,   49   Wake

Forest L. Rev. at 1380. The problem of proof, along with questions of

reliability, have given rise to requiring some corroboration of jailhouse

informant testimony to support a conviction in at least eighteen states.

Covey, 49 Wake Forest L. Rev. at 1416–20 (describing the various states’

corroboration requirements); see Am. Bar Ass’n Section of Criminal

Justice, Report to the House of Delegates 1, 6–7 & n.16 (Feb. 2005)

http://www.americanbar.org/content/dam/aba/publishing/criminal_ju

stice_section_newsletter/crimjust_policy_my05108b.authcheckdam.pdf.

      B. Positions of the Parties.        Marshall argues the record

establishes that the State violated Massiah by employing informants to

violate his right to counsel.   He stresses that Johnson was operating

under a proffer agreement, that the State conceded Johnson was trying

to provide information that would be used to determine what reduction

in sentence he would receive, and that the State provided Johnson with a

list of suspects. Marshall notes that Johnson initiated the conversation

about the crime when Johnson “asked him what was he in . . . for.”

According to Marshall, Johnson was “deputized” to provide incriminating

information on him.

      With respect to Martin and Freeman, Marshall recognizes that it is

less clear that they were serving as agents of the State at the time they
                                    24

received incriminating information from Marshall.       Marshall argues,

however, that the State “must have known” that Johnson would pass on

the State’s interest in him to Johnson’s coconspirator and coinformant,

Martin, who was also incarcerated at the Muscatine County Jail and had

provided information to Detective Smithey in the past under a

cooperation agreement.     Marshall points out that Detective Smithey

testified that it was probably reasonable to assume that Johnson was

going to pass the information request on to Martin. Marshall finds it an

extraordinary coincidence that after Detective Smithey met with Johnson

on October 3 he happened to run into Martin, who also happened to

have extensive notes on a legal pad written by Marshall.

      Marshall asserts that Martin lied at trial by stating that he did not

know Detective Smithey prior to providing information on Marshall when,

in fact, Detective Smithey was well acquainted with Martin.      Detective

Smithey testified that he had interviewed Martin in connection with

Martin’s proffer agreement “on several occasions, two or more . . . prior

to that date.” Freeman, in turn, was enlisted by Martin. Marshall notes

that Freeman testified that Martin and another inmate named Sandifer

sent Marshall to him. Freeman and Martin then extensively infiltrated

Marshall and his lawyer’s attorney–client relationship by providing what

amounted to legal advice on how to prepare his defense and how to

present it to Marshall’s lawyer.

      Marshall asserts that under Massiah and its progeny there is no

requirement that Johnson be given specific instruction regarding how to

obtain information.     He notes that in Henry, the informant was

specifically told not to initiate any conversations. See 447 U.S. at 266,

100 S. Ct. at 2184–85, 65 L. Ed. 2d at 119. Yet the Henry Court found a

Massiah violation because the state “must have known” that the
                                    25

informant would initiate conversations in light of the incentives to obtain

the information.    Id. at 271, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122.

Marshall claims these principles were reaffirmed in Moulton.      See 474

U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496.

         Marshall then addresses the most recent United States Supreme

Court case, Kuhlmann.       Marshall contends that in Kuhlmann, the

Supreme Court “fudged” when it stated that the only remark made by the

informant was that Kuhlmann’s position on the crimes “didn’t sound too

good.”     477 U.S. at 460, 106 S. Ct. at 2630, 91 L. Ed. 2d at 385.

Marshall points out that the informant in Kuhlmann in fact said that the

defendant “better come up with a better story than that,” a fact noted in

a footnote and then disregarded in Kuhlmann. Id. at 440 n.1, 106 S. Ct.

at 2619 n.1, 91 L. Ed. 2d at 372 n.1. Marshall cites Justice Brennan’s

dissent in Kuhlmann, which stressed the failure of the majority to

consider the full facts, including the statement cited by Marshall and the

fact that the informant was placed in a jail cell with the defendant with a

view of the scene of the crime.     Id. at 473, 106 S. Ct. at 2637, 91

L. Ed. 2d at 393–94 (Brennan, J., dissenting).         The bottom line for

Marshall is that he was surrounded by a “tangled web” of informers and

that the incriminating statements made to them should be suppressed

under Massiah and its progeny.

      The State responds by asserting that the evidence in the case does

not establish that the informants were acting as government agents and

does not establish that they deliberately elicited the incriminating

statements from Marshall. On the question of agency, the State—citing

Moore and other cases—asserts that there must be instructions to seek

information about a “particular defendant.”      Moore, 178 F.3d at 999

(quoting United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997)). In
                                     26

Henry, according to the State, the informant was acting on instructions

from the police. See 447 U.S. at 271, 100 S. Ct. at 2187, 65 L. Ed. 2d at

122.   Since the record is devoid of such instruction, neither Johnson,

Martin, nor Freeman, according to the State, were agents. In addition,

there was no promise of pay for successfully obtaining information.

Therefore, according to the State, Johnson, Freeman, and Martin cannot

be considered agents of the State.

       The State challenges Marshall’s argument that the State “must

have known” that Johnson would tell others, including Freeman and

Martin, about the State’s interest in information about the Versypt

murder.    The State emphasizes that Johnson testified that he never

talked with Martin about Marshall, and Freeman testified that he never

spoke with Johnson about the Marshall matter. The State also argued

that Marshall failed to show “deliberate elicitation” under Kuhlmann.

According to the State, the record shows that the informants were acting

as “listening posts” under Kuhlmann. 477 U.S. at 456 & n.19, 106 S. Ct.

at 2628 & n.19, 91 L. Ed. 2d at 382 & n.19 (majority opinion). Noting

that under Kuhlmann, the “primary concern of the Massiah line of

decisions is secret interrogation by investigatory techniques that are the

equivalent of direct police interrogation,” id. at 459, 106 S. Ct. at 2630,

91 L. Ed. 2d at 384, the State argues that the defendant has failed to

show deliberate elicitation.

       In the alternative, the State argues that some of the interactions

between the State and Johnson occurred before Johnson’s Sixth

Amendment rights attached.        Yet the State acknowledges that in the

proceedings below, the county attorney agreed with the district court

that the right had attached prior to the time when the informants

interacted with the defendants.
                                       27

      C. United States Supreme Court’s Approach to the Use of

Government      Informants    Against       Defendants   Represented      by

Counsel. There are four important United States Supreme Court cases

that establish a general framework for determining when the use of

government informants violates the accused’s Sixth Amendment right to

counsel. The first case is Massiah, 377 U.S. at 201, 84 S. Ct. at 1199,

12 L. Ed. 2d at 246. In Massiah, the Supreme Court considered a case

where a government agent deliberately elicited information from a

criminal defendant.   Id. at 203–04, 84 S. Ct. at 1201, 12 L. Ed. 2d at

249. A confederate of a defendant—who was on bail and had obtained

legal representation—agreed to allow federal authorities to place a radio

transmitter in the front seat of his car. Id. at 202–03, 84 S. Ct. at 1201,

12 L. Ed. 2d at 248. Federal authorities sat in a car down the street and

listened to the conversation between the confederate and the defendant.

Id. at 203, 84 S. Ct. at 1201, 12 L. Ed. 2d at 248–49.      The defendant

“made several incriminating statements during the course of the

conversation.” Id. at 203, 84 S. Ct. at 1201, 12 L. Ed. 2d at 249. These

incriminating conversations were introduced into evidence at trial. Id.

      The Supreme Court held that the incriminating conversations were

inadmissible.   Id. at 207, 84 S. Ct. at 1203, 12 L. Ed. 2d at 251.

According to the Court, the defendant was denied the basic protections of

the Sixth Amendment right to counsel by use 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.”       Id. at 206, 84

S. Ct. at 1203, 12 L. Ed. 2d at 250.

      After Massiah, the Supreme Court decided Henry, 447 U.S. at 264,

100 S. Ct. at 2183, 65 L. Ed. 2d at 115.       In that case, the informant

Nichols advised an FBI agent that he had been placed in the same
                                    28

cellblock as the defendant Henry, who had been accused of participating

in a bank robbery. Id. at 266, 100 S. Ct. at 2184, 65 L. Ed. 2d at 119.

After Nichols was released from jail, Nichols told the FBI agent that “he

and Henry had engaged in conversation and that Henry told him about

the robbery.” Id. at 266, 100 S. Ct. at 2185, 65 L. Ed. 2d at 119.

      At trial, Nichols testified that he had “an opportunity to have some

conversations with Mr. Henry while he was in the jail” and that Henry

had told him that he had participated in the robbery. Id. at 267, 100

S. Ct. at 2185, 65 L. Ed. 2d at 120. After the evidence was admitted and

the defendant convicted, an appellate court reversed and remanded for

an evidentiary inquiry into “whether the witness . . . was acting as a

government agent during his interviews with Henry.”       Id. at 268, 100

S. Ct. at 2185, 65 L. Ed. 2d at 120.      At the subsequent evidentiary

hearing, the FBI agent submitted an affidavit which stated,

      I recall telling Nichols at this time to be alert to any
      statements made by these individuals [the federal prisoners]
      regarding the charges against them. I specifically recall
      telling Nichols that he was not to question Henry or these
      individuals about the charges against them, however, if they
      engaged him in conversation or talked in front of him, he
      was requested to pay attention to their statements.

Id. at 268, 100 S. Ct. at 2186, 65 L. Ed. 2d at 121. In addition, the FBI

agent’s affidavit also stated that he never requested anyone to place

Nichols in the same cell with Henry.     Id.   The district court affirmed

Henry’s conviction. Id. The court of appeals reversed, indicating that “by

general conversation . . . Nichols had developed a relationship of trust

and confidence with Henry such that Henry revealed incriminating

information.” Id. at 269, 100 S. Ct. at 2186, 65 L. Ed. 2d at 121.

      Citing Massiah, the Court focused on the question of whether the

government deliberately elicited incriminatory statements from the
                                    29

defendant. Id. at 270, 100 S. Ct. at 2186, 65 L. Ed. 2d at 122. In finding

deliberate elicitation, the Henry Court cited three facts.      Id.   First,

Nichols was acting under government instructions as a paid informant.

Id. at 270, 100 S. Ct. at 2186–87, 65 L. Ed. 2d at 122. Second, Nichols

appeared to be no more than a fellow inmate of Henry. Id. at 270, 100

S. Ct. at 2187, 65 L. Ed. 2d at 122. Third, “Henry was in custody and

under indictment at the time he was engaged in conversations by

Nichols.” Id. The Henry Court also noted that Nichols was operating on

a contingency-fee arrangement. Id. The Court concluded, “Even if the

agent’s statement that he did not intend that Nichols would take

affirmative steps to secure incriminating information is accepted, he

must have known that such propinquity likely would lead to that result.”

Id. at 271, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122. The Henry Court also

rejected the government’s defense that the agents instructed Nichols not

to question Henry about the robbery. Id. at 271, 100 S. Ct. at 2187, 65

L. Ed. 2d at 122–23.     The Court noted, “Nichols was not a passive

listener; rather, he had ‘some conversations with Mr. Henry’ while he was

in jail and Henry’s incriminatory statements were ‘the product of this

conversation.’ ” Id.

      The Henry Court further noted that no inquiry was made in

Massiah “as to whether Massiah or his codefendant first raised the

subject of the crime under investigation.” Id. at 271–72, 100 S. Ct. at

2187, 65 L. Ed. 2d at 123.    The Court emphasized that conversations

with a fellow inmate who is acting as a government informant “may elicit

information that an accused would not intentionally reveal to persons

known to be Government agents.”       Id. at 273, 100 S. Ct. at 2188, 65

L. Ed. 2d at 124. What the police must not do, according to Henry, is

engage in deliberate elicitation, which the Court defined as “intentionally
                                     30

creating a situation likely to induce [a person] to make incriminating

statements without the assistance of counsel.” Id. at 274, 100 S. Ct. at

2189, 65 L. Ed. 2d at 125 (emphasis added).

      The Court did not provide a precise formula for determining when

“a situation” likely to induce a person to make incriminating statements

without the assistance of counsel is present. Henry, however, cited three

factors: (1) the informant acted under instructions as a paid informant

for the government, (2) the informant appeared to be just another

inmate, and (3) the defendant was in custody and under indictment at

the time the informant engaged him in conversation.       Id. at 270, 100

S. Ct. at 2186–87, 65 L. Ed. 2d at 122.      The Henry Court seemed to

emphasize the fact that Nichols and Henry shared facilities and that

Nichols had ingratiated himself through his “conduct and apparent

status as a person sharing a common plight.” Id. at 274, 100 S. Ct. at

2189, 65 L. Ed. 2d at 124. Yet the Court explicitly left open the question

of whether there can be deliberate elicitation when the government

informer, though planted, is wholly passive. Id. at 271 n.9, 100 S. Ct. at

2187 n.9, 65 L. Ed. 2d at 123 n.9.

      While five members joined the majority opinion, Justice Powell

wrote a concurring opinion in Henry.      Justice Powell emphasized that

Massiah requires deliberate elicitation. Id. at 275, 100 S. Ct. at 2189, 65

L. Ed. 2d at 125 (Powell, J., concurring).    Justice Powell stressed that

Massiah did not apply to passive listening devices that merely collect, but

do not induce, incriminating statements. Id. at 276, 100 S. Ct. at 2190,

65 L. Ed. 2d at 126.     Justice Powell further stated that “the mere

presence of a jailhouse informant who had been instructed to overhear

conversations and to engage a criminal defendant in some conversations

would not necessarily be unconstitutional.” Id.
                                       31

       In   Moulton,     an   informant     met   with   the   defendant—his

accomplice—and repeatedly asked the defendant to remind him of the

details of the crime and encouraged the defendant to describe his plan

for killing witnesses.    474 U.S. at 165–66, 106 S. Ct. at 481–82, 88

L. Ed. 2d at 489. The Court explained that the informant engaging the

defendant in active conversation about the upcoming trial was virtually

certain to elicit incriminating statements. Id. at 177 n.13, 106 S. Ct. at

487 n.13, 88 L. Ed. 2d at 496 n.13.          The Moulton Court emphasized

“[t]he Sixth Amendment also imposes on the State an affirmative

obligation to respect and preserve the accused’s choice to seek [the

assistance of counsel].”      Id. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at

492.   The Court also acknowledged that “[d]irect proof of the State’s

knowledge will seldom be available to the accused.” Id. at 176 n.12, 106

S. Ct. at 487 n.12, 88 L. Ed. 2d at 496 n.12.

       In Kuhlmann, the Supreme Court considered a second federal

habeas corpus petition brought by a state prisoner who claimed a

Massiah violation.     477 U.S. at 438, 441, 106 S. Ct. at 2619–20, 91

L. Ed. 2d at 371–73. The defendant Wilson was accused of robbery and

murder in connection with a robbery of a taxicab garage that led to the

death of a night dispatcher.        Id. at 438–39, 106 S. Ct. at 2619, 91

L. Ed. 2d at 371.      After arraignment, Wilson was incarcerated in the

Bronx House of Detention. Id. at 439, 106 S. Ct. at 2619, 91 L. Ed. 2d at

371.   Unbeknownst to Wilson, a detective had obtained an agreement

from Lee, Wilson’s cellmate, to be an informant.         Id. The government

wanted to learn who participated in the crime with Wilson. Id. at 439,

106 S. Ct. at 2619, 91 L. Ed. 2d at 371–72. The Kuhlmann Court noted

that Lee was instructed simply to “keep his ears open” for the names of

persons who participated in the crimes with Wilson.            Id. at 439, 106
                                    32

S. Ct. at 2619, 91 L. Ed. 2d at 372. When Wilson observed that their cell

had a view of the taxicab garage where the crimes occurred, he declared,

“someone’s messing with me,” and narrated his version of events that he

had already told police.    Lee responded that his explanation “didn’t

sound too good.” Id. at 439–40, 106 S. Ct. at 2619, 91 L. Ed. 2d at 372.

Later, Wilson changed his story, admitting that he and two others had

committed the robbery and murdered the dispatcher.        Id. at 440, 106

S. Ct. at 2619–20, 91 L. Ed. 2d at 372.

      At a hearing in the original state court proceeding, the detective

and Lee testified. Id. at 440, 106 S. Ct. at 2620, 91 L. Ed. 2d at 372.

The detective testified that he had instructed Lee “to ask no questions”

about the crime “but merely . . . listen” to what Wilson might say about

the crime. Id. After hearing from Lee, the state trial court found, as a

matter of fact, that Lee obeyed his instructions and only listened and

made notes regarding what Wilson had to say. Id. The state trial court

found respondent’s statements were spontaneous and unsolicited.         Id.

After Wilson lost the appeal, he filed his first federal habeas corpus

petition challenging the introduction of Lee’s testimony on Massiah

grounds. Id. at 441, 106 S. Ct. at 2620, 91 L. Ed. 2d at 372–73. The

federal court denied relief and a divided court of appeals affirmed. Id. at

441, 106 S. Ct. at 2620, 91 L. Ed. 2d at 373; see Wilson v. Henderson,

584 F.2d 1185, 1192 (2d Cir. 1978).

      After the Supreme Court decided Henry, however, Wilson filed a

motion to vacate his conviction in state court. Kuhlmann, 477 U.S. at

442, 106 S. Ct. at 2620–21, 91 L. Ed. 2d at 373. The state court denied

relief on the ground that Henry was factually distinguishable and that

under state law Henry was not retroactive.      Id. at 442, 106 S. Ct. at

2621, 91 L. Ed. 2d at 373. Wilson then filed his second federal habeas
                                     33

corpus petition, arguing that Henry enunciated a new rule of law that

should be retroactively applied to his case. Id. The federal district court

again denied relief. Id. at 442, 106 S. Ct. at 2621, 91 L. Ed. 2d at 373–

74. The federal district court noted that the state trial court’s findings of

fact were presumptively correct in a federal habeas corpus proceeding

and were fully supported by the record. Id. at 443, 106 S. Ct. at 2621,

91 L. Ed. 2d at 374. The federal court emphasized that under the facts

as found by the state court, Lee made “no affirmative effort” of any kind

“to elicit information” from the respondent. Id.

      Wilson appealed and another divided panel of the Second Circuit

reversed. Id.; see Wilson v. Henderson, 742 F.2d 741, 745 (2d Cir. 1984).

Among other things, the majority found that the facts of the case were

indistinguishable from Henry and that Henry was fully applicable

because it did not announce a new constitutional rule but merely applied

settled principles to new facts. Kuhlmann, 477 U.S. at 443, 106 S. Ct. at

2621, 91 L. Ed. 2d at 374 (citing Wilson, 742 F.2d at 746–47).           The

Supreme Court granted certiorari.      Id. at 444, 106 S. Ct. at 2621, 91

L. Ed. 2d at 374.

      In Kuhlmann, the majority concluded that there was no Massiah

violation. Id. The Kuhlmann majority noted that in Henry the informant

“developed a relationship of trust and confidence with [the defendant]

such that [the defendant] revealed incriminating information.”        Id. at

458, 106 S. Ct. at 2629, 91 L. Ed. 2d at 383–84 (quoting Henry, 447 U.S.

at 269, 100 S. Ct. at 2186, 65 L. Ed. 2d at 121). The Kuhlmann Court

further noted that in Henry the informant had stimulated conversations

with the defendant in order to elicit incriminating information.       Id. at

458, 106 S. Ct. at 2629, 91 L. Ed. 2d at 384. The Kuhlmann majority

emphasized that the defendant must demonstrate that “police and their
                                   34

informant took some action, beyond merely listening, that was designed

deliberately to elicit incriminating remarks.”   Id. at 459, 106 S. Ct. at

2630, 91 L. Ed. 2d at 384–85.

      The Court also emphasized that “the primary concern of the

Massiah line of decisions is secret interrogation by investigatory

techniques that are the equivalent of direct police interrogation.” Id. at

459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384–85. Because in Kuhlmann

the police deliberately placed the informant in the cell with the

defendant, the Kuhlmann majority appeared to answer the question

posed in a footnote in Henry—namely, whether mere placement of an

informant alone in a cell with the defendant was enough to give rise to a

Sixth Amendment violation. Id. at 456, 106 S. Ct. at 2628, 91 L. Ed. 2d

at 382–83.

      The Kuhlmann Court then considered whether there was deliberate

elicitation under the circumstances of the case. Id. at 460–61, 106 S. Ct.

at 2630–31, 91 L. Ed. 2d at 385.      The Court found that the Second

Circuit failed to give appropriate deference in the federal habeas corpus

proceeding to the factual findings of the state court.    Id. at 459, 106

S. Ct. at 2630, 91 L. Ed. 2d at 385. The Court noted that the state court

found the detective had instructed Lee “only to listen” to Wilson and that

respondent’s comments were spontaneous and unsolicited. Id. at 460,

106 S. Ct. at 2630, 91 L. Ed. 2d at 385. The Kuhlmann majority found

that these state court findings were entitled to a presumption of

correctness under 28 U.S.C. § 2254(d). Id. at 459, 106 S. Ct. at 2630, 91

L. Ed. 2d at 385. The Court found that the Second Circuit had revised

some of the trial court’s findings and that its conclusions were at odds

with the factual findings of the state court.    Id. at 460, 106 S. Ct. at

2630, 91 L. Ed. 2d at 385.
                                    35

      Justice Brennan, along with Justices Marshall and Stevens,

dissented. Id. at 461, 106 S. Ct. at 2631, 91 L. Ed. 2d at 386 (Brennan,

J., dissenting); id. at 476, 106 S. Ct. at 2639, 91 L. Ed. 2d at 396

(Stevens, J., dissenting).   According to Justice Brennan, the Court in

Henry found incriminating statements were deliberately elicited when a

jailhouse informant followed instructions to obtain information without

directly   questioning   Henry   and     without   initiating   conversations

concerning the charges pending against Henry. Id. at 474, 106 S. Ct. at

2637–38, 91 L. Ed. 2d at 394 (Brennan, J., dissenting). Justice Brennan

noted that in Henry, it was irrelevant that the informant asked pointed

questions about the crime or “merely engage[d] in general conversation

about it.” Id. at 474, 106 S. Ct. at 2638, 91 L. Ed. 2d at 394 (quoting

Henry, 447 U.S. at 272 n.10, 100 S. Ct. at 2187 n.10, 65 L. Ed. 2d at

123 n.10 (1980)).

      Justice Brennan emphasized that in Henry, the Court stressed the

importance of three factors: (1) whether the informant was a paid

informant, (2) whether the defendant was aware that there was an

informant in his presence, and (3) whether the accused was in custody at

the time incriminating statements were made. Id. at 475, 106 S. Ct. at

2638, 91 L. Ed. 2d at 394–95. Justice Brennan found that all three of

these factors were met in Kuhlmann. Id. at 475–76, 106 S. Ct. at 2638–

39, 91 L. Ed. 2d at 395–96. Justice Brennan also cited the fact that the

jail cell had a visual view of the taxicab garage where the crime occurred

and that the informant in essence gave the defendant advice to improve

his story. Id. at 476, 106 S. Ct. at 2638, 91 L. Ed. 2d at 395. In his

view, “[t]he State intentionally created a situation in which it was

foreseeable that respondent would make incriminating statements

without the assistance of counsel . . . .” Id. Justice Brennan argued that
                                      36

the informant, “while avoiding direct questions, nonetheless developed a

relationship     of   cellmate   camaraderie   with    the   respondent   and

encouraged him to talk about his crime.”         Id.   He found a sufficient

nexus between the state’s actions and the admissions of guilt to

constitute deliberate elicitation within the meaning of Henry. Id. at 476,

106 S. Ct. at 2638–39, 91 L. Ed. 2d at 395–96.

      After Kuhlmann, the question arose whether its language regarding

what constituted deliberate elicitation should be interpreted as a

limitation on the expansive view provided in Henry.           See, e.g., Craig

Bradley, What’s Left of Massiah?, 45 Tex. Tech L. Rev. 247, 260–61

(2012); Tomkovicz, Adversary System, 22 U.C. Davis L. Rev. at 19–20.

On the one hand, Henry was not expressly overruled in Kuhlmann.

Further, many of the concepts of Henry were cited with approval in

Kuhlmann.      See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91

L. Ed. 2d at 384 (majority opinion). Additionally, Kuhlmann arose in the

context of a federal habeas corpus challenge to a state court conviction.

Because Kuhlmann essentially held for the state on procedural grounds

unrelated to the Sixth Amendment, id. at 455, 106 S. Ct. at 2627–28, 91

L. Ed. 2d at 382, the subsequent discussion of Henry could be regarded

as mere dicta.

      On the other hand, as pointed out by Justice Brennan, the facts of

Kuhlmann seemed strikingly similar, if not indistinguishable, to Henry.

Kuhlmann, 477 U.S. at 473, 106 S. Ct. at 2637, 91 L. Ed. 2d at 394

(Brennan, J., dissenting). One could argue that the only way the state

could have violated Henry’s Sixth Amendment rights but not Wilson’s

was if there was a modification of law in Kuhlmann.            See Bruce D.

Lundstrom, Sixth Amendment—Right to Counsel: Limited Postindictment
                                   37

Use of Jailhouse Informants Is Permissible, 77 J. Crim. L. & Criminology

743, 764–65 (1986).

      Yet in reading the majority and dissenting opinions, they both

appear to accept the deliberate-elicitation framework.         The facts,

however, are viewed differently. The majority considered the informant

to be passive, while the dissent suggested that the informant took an

active role by stimulating conversation about the crime and by

suggesting that the defendant develop a more convincing story. See April

Leigh Ammeter, Kuhlmann v. Wilson: ‘Passive’ and ‘Active’ Government

Informants: A Problematic Test, 72 Iowa L. Rev. 1423, 1435 (1987)

[hereinafter Ammeter].    As noted by one commentator, the debate

between the majority in Kuhlmann and Justice Brennan’s dissent is “a

demonstration of the morass into which the Court’s chosen path can

lead a conscientious judge.” H. Richard Uviller, Evidence from the Mind

of the Criminal Suspect: A Reconsideration of the Current Rules of Access

and Restraint, 87 Colum. L. Rev. 1137, 1194 (1987).

      D. Application of Massiah and Its Progeny in Lower Courts.

      1. Introduction.   Applying the principles of Massiah and its

progeny has been a challenge in the lower courts. Courts frequently cite

the conflicts in the cases and the lack in clarity of the applicable legal

standards. See, e.g., United States v. LaBare, 191 F.3d 60, 64 (1st Cir.

1999) (“[W]hile these legal premises are clear, their application to this

case is less than straightforward.”); Leopardi, 701 A.2d at 956 (“[C]andor

requires us to confess our difficulty in reconciling several of these

decisions.”). Many of the cases are not unanimous. See, e.g., Johnson,

338 F.3d at 923 (Bye, J., dissenting); Matteo v. Superintendent, SCI

Albion, 171 F.3d 877, 905 (3d Cir. 1999) (McKee, J., concurring) (finding

Sixth Amendment analysis contrary to Massiah but error harmless);
                                    38

Lightbourne v. Dugger, 829 F.2d 1012, 1027 (11th Cir. 1987) (Anderson,

J., concurring in part and dissenting in part); United States v. Taylor,

800 F.2d 1012, 1018 (10th Cir. 1986) (McKay, J., dissenting); State v.

Currington, 746 P.2d 997, 1005 (Idaho Ct. App. 1987) (Swanstrom, J.,

dissenting); Commonwealth v. Franciscus, 710 A.2d 1112, 1122 (Pa.

1998) (Castille, J., dissenting); Hartman v. State, 896 S.W.2d 94, 107

(Tenn. 1995) (Reid, J., concurring and dissenting); State v. Leadingham,

438 S.E.2d 825, 839 (W. Va. 1993) (Workman, C.J., dissenting).

      2. Requirement of informant agency.

      a. Introduction. For the activities of an informant to give rise to a

Sixth Amendment violation, the informant must be acting as an agent for

the government.     Henry, 447 U.S. at 270, 100 S. Ct. at 2186–87, 65

L. Ed. 2d at 122.    When the government and an informant have an

express agreement, often reduced to writing, there may be little question

that the informant should be regarded as an agent of the government for

Sixth Amendment purposes. But the question arises whether a jailhouse

informant may be considered an agent for Sixth Amendment purposes in

the absence of an express agreement.      Even if we accept a theory of

implied agency, one may wonder where the line is to be drawn between

an implied agency relationship and jailhouse “entrepreneurs” who seek

to improve their prospects by offering information to the state in the

“jailhouse marketplace” of informant testimony.          The cases have

struggled to make this important distinction.

      Irrespective of the above, it seems clear from the cases that agency

under Massiah does not rely too heavily on traditional principles of

private contract or agency law, but instead seems closer to the doctrine

of state action. The question, for constitutional purposes, is whether the

actions of an informant may be fairly attributed to the state.
                                    39

Nonetheless, the cases suggest, “At a minimum . . . there must be some

evidence that an agreement, express or implied, between the individual

and a government official existed at the time the elicitation takes place.”

Depree v. Thomas, 946 F.2d 784, 794 (11th Cir. 1991).         The test for

agency is a multifactored one based on all the facts and circumstances

and not subject to clear maxims or bright-line rules.

      b. Express or implied agency. There is some authority that seems

to require a formal express agreement before an informant may be

considered an agent of the state.        Lightbourne, 829 F.2d at 1020

(majority opinion). Most of the caselaw, however, has drifted away from

such formalism. There is ample authority for the proposition that the

required agency may be express or implied. See, e.g., Ayers v. Hudson,

623 F.3d 301, 311 (6th Cir. 2010); Randolph v. California, 380 F.3d

1133, 1144 (9th Cir. 2004); Matteo, 171 F.3d at 893 (majority opinion);

United States v. Brink, 39 F.3d 419, 424 (3d Cir. 1994); Depree, 946 F.2d

at 794; United States v. York, 933 F.2d 1343, 1357 (7th Cir. 1991),

overruled on other grounds by Wilson v. Williams, 182 F.3d 562, 567 (7th

Cir. 1999); Thomas v. Cox, 708 F.2d 132, 136 (4th Cir. 1983).

      State courts have also embraced the notion of implied agency. See,

e.g., McBeath v. Commonwealth, 244 S.W.3d 22, 33 (Ky. 2007) (holding it

is not necessary to have quid pro quo understanding in order to find

agency); Commonwealth v. Foxworth, 40 N.E.3d 1003, 1012 (Mass. 2015)

(requiring “evidence of a promise, express or implied” to find agency).

Moulton advises that the state has an affirmative duty to ensure that the

defendant’s right to counsel is honored. 474 U.S. at 171, 106 S. Ct. at

484, 88 L. Ed. 2d at 492–93. This affirmative duty cannot be met when

the state enters into somewhat vague agreements with informants that

predictably lead to interference with the right to counsel. Thus, the real
                                     40

question at issue in the better-reasoned cases is not whether agency may

be implied, but rather what must be shown to establish implied agency.

      In addition, it is important to point out that the question of agency

is a dynamic concept.     For instance, in Wesbrook v. State, an inmate

reported conversations to state authorities in which the defendant

expressed a desire to kill his ex-wife and her husband. 29 S.W.3d 103,

116 (Tex. Crim. App. 2000).        The inmate arranged a meeting with

authorities, hoping to exploit the information for his benefit. Id. After

receiving the information, the authorities then entered into an agreement

with the inmate to elicit more information in exchange for a good word

with the prosecution on the inmate’s pending charges.         Id. The court

allowed the testimony on information obtained prior to the first meeting

with the authorities, but suppressed information gathered afterwards on

Massiah grounds. Id. at 119.

      c. Requirement of express or implied instructions.        Moulton and

Henry make clear that the existence of instructions not to ask questions

of a defendant are not determinative on the issue of whether a Massiah

violation has occurred. Moulton, 474 U.S. at 177 n.14, 106 S. Ct. at 488

n.14, 88 L. Ed. 2d at 497 n.14; Henry, 447 U.S. at 271–72, 100 S. Ct. at

2187, 65 L. Ed. 2d at 122–23. Such limitations are insufficient because

failure to follow instructions is foreseeable in light of the strong

incentives that motivate a jailhouse informant. Henry, 447 U.S. at 270–

71 & n.7, 100 S. Ct. at 2187 & n.7, 65 L. Ed. 2d at 122 & n.7.

Nonetheless,   the   slightly   different   question   of   whether   explicit

instructions are required in order to establish agency, express or implied,

for purposes of the Sixth Amendment has sometimes reoccurred in the

caselaw.
                                      41

      For instance, in Johnson, the Eighth Circuit found that the

informant was not instructed, by express words or implication, to gather

information about a defendant.        338 F.3d at 921 (majority opinion).

Thus, according to the Johnson majority, there was no express or implied

agency.   Id.   A dissent in Johnson disagreed, however, and concluded

that agency should not be limited to cases where the government gives

an informant direct, explicit oral or written instructions. Id. at 925–26

(Bye, J., dissenting).   According to the dissent, the record established

that the informant did not need for the instructions to be spelled out. Id.

The dissent emphasized that the government did not obtain statements

“by luck or happenstance” but as the result of a meeting 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.” Id. at 926 (quoting Robinson v. Clarke, 939 F.2d 573, 576 (8th

Cir. 1991) (second quote)) (alteration in original).

      The formalism of the majority in Johnson seems inconsistent with

the “likely to induce” standard in Henry and has been rejected by a

number of courts. 447 U.S. at 274, 100 S. Ct. at 2189, 65 L. Ed. 2d at

125. As noted by the Eleventh Circuit, “There is, by necessity, no bright-

line rule for determining whether an individual is a government agent for

purposes of the [S]ixth [A]mendment right to counsel.” Depree, 946 F.2d

at 793–94. The Sixth Circuit has also rejected the Johnson approach,

noting that if explicit instructions were required to establish agency for

Sixth Amendment purposes, the state could accomplish “with a wink and

a nod” what it cannot overtly do. Ayers, 623 F.3d at 312. The Third and

Fourth Circuits have come to similar conclusions. See Matteo, 171 F.3d

at 893; Brink, 39 F.3d at 424; Cox, 708 F.2d at 136.
                                     42

      One state court case dramatically illustrates the shortcomings of a

formalistic Johnson approach.         In Commonwealth v. Moose, the

Pennsylvania Supreme Court considered a case where the informant did

not have specific instructions. 602 A.2d 1265, 1270 (Pa. 1992). Yet the

record demonstrated that the informant knew what to do. Id. Indeed,

the informant was called “the monsignor” because so many inmates

confessed to him.     Id.   Notwithstanding the lack of instructions, the

informant was an agent of the state for Sixth Amendment purposes. Id.

at 1271.

      d. Requirement of quid pro quo.        Some cases have considered

whether an express or implicit quid pro quo is required to state a

Massiah violation. In McBeath, the Kentucky Supreme Court stated it is

not necessary to have an express quid pro quo agreement. 244 S.W.3d

at 33.     Similarly, the California Supreme Court has stated that an

informant acts as a government agent if the informant acts “under the

direction of the government pursuant to a preexisting arrangement, with

the expectation of some resulting benefit or advantage.”           People v.

Coffman, 96 P.3d 30, 83 (Cal. 2004) (emphasis added) (quoting In re

Neely, 864 P.2d 474, 481 (Cal. 1993)); see also Commonwealth v.

Murphy, 862 N.E.2d 30, 38, 40–41 (Mass. 2007); Rubalcado v. State, 424

S.W.3d 560, 575 (Tex. Crim. App. 2014).

      In Brink, the court held that a lack of a specific promise was not

determinative on the issue of agency for Sixth Amendment purposes. 39

F.3d at 424. Additionally, in Randolph, the court emphasized that it was

enough that the state made a decision to obtain an informant’s

cooperation and that the informant decided to provide it. 380 F.3d at

1144. Brink and Randolph are consistent with Henry, which emphasized

that with respect to agency, it is the likely result of the government’s acts
                                    43

that determines the issue.     447 U.S. at 271, 100 S. Ct. at 2187, 65

L. Ed. 2d at 122. Given the long prison sentences that many informants

face, the prospect that cooperation might be considered in reducing a

sentence is a sufficient inducement to support a Massiah violation.

      e. Distinction between informers and entrepreneurs.            Even if

instructions are not necessarily required for express or implied agency,

the cases generally draw a distinction between informants acting on

behalf of the government and those who act without government

involvement. See Birbal, 113 F.3d at 346. As stated in Cox, an inmate

who volunteers information to authorities based on “an unencouraged

hope to curry favor” does not offend Massiah.      708 F.2d at 136.        The

Delaware Supreme Court offered a similar viewpoint, noting that the

Sixth Amendment “does not protect a defendant against private

individuals who wish to profit at his expense.”      Jackson v. State, 684

A.2d 745, 752 (Del. 1996).     Such persons, in the parlance of courts

grappling   with   Massiah    issues,    are   commonly   referred    to    as

entrepreneurs. See York, 933 F.2d at 1356.

      In some cases, it is undisputed that the informer has no agency

relationship with the government. For instance, in LaBare, one of the

informants was “not even arguably a government agent” when he

gathered incriminating statements.        191 F.3d at 66.      Whether an

informant has crossed the line between agency and entrepreneurship,

however, depends on the facts.       A number of cases have found, for

instance, that what began as entrepreneurship may develop into an

agency relationship. See, e.g., Wesbrook, 29 S.W.3d at 119. Sometimes,

however, an entrepreneur who becomes an agent may still not violate

Massiah if, in his subsequent contact with the defendant, he does not

engage in acts of deliberate elicitation. See Birbal, 113 F.3d at 346.
                                      44

      f. Requirement of specific target. In some cases, courts have held

that an informant becomes a government agent only when instructed by

the government to get information about a particular defendant.            See

LaBare, 191 F.3d at 65; Moore, 178 F.3d at 999; Birbal, 113 F.3d at 346;

In re Benn, 952 P.2d 116, 138–39 (Wash. 1998). Other courts, however,

have come to a different conclusion and do not require targeting of

specific individuals. Brink, 39 F.3d at 423–24; York, 933 F.2d at 1356–

57; United States v. Sampol, 636 F.2d 621, 638 (D.C. Cir. 1980) (per

curiam); Murphy, 862 N.E.2d at 40; Moose, 602 A.2d at 1270.

      The problem with a requirement of a specific target is that it allows

“informant[s] at large” to seek opportunities within the jailhouse at their

discretion. Sampol, 636 F.2d at 638. The invasion of an incarcerated

prisoner’s Sixth Amendment rights is not affected by whether the

informant is operating at large or with a specific target.       As noted in

Moose, “The vast majority of people in county jail are charged with crimes

and awaiting trial . . . .”     Moose, 602 A.2d at 1270.         As a result,

deliberately eliciting incriminating information from any of them violates

Massiah. Moose, 602 A.2d at 1270.

      As noted in York, the relationship between the state and its

informers is often a symbiotic one. 933 F.2d at 1357. According to the

York court, it would be inconsistent with the Sixth Amendment to allow

the government to send out informants on “a reconnaissance patrol . . .

to gather evidence.” Id. at 1356. The court further noted “[w]hether the

principal exercises its control strictly, by targeting specific individuals, or

casually, by loosing an informant on the prison population at large, is

irrelevant.” Id. at 1357. A state’s use of an at-large informant is at least

somewhat inconsistent with the affirmative duty of prosecutors in
                                       45

Moulton to avoid interference with the Sixth Amendment rights of

defendants. 474 U.S. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at 492–93.

      g. Infiltration of cell.   There is authority for the proposition that

placement of a friend or acquaintance with a defendant in the jailhouse

is at least some evidence of agency. See Matteo, 171 F.3d at 894–95.

Such action by the state “intentionally creat[es] a situation likely to

induce [the accused] to make incriminating statements without the

assistance of counsel” and is a significant factor to a finding of agency.

Id. at 895 (quoting Henry, 447 U.S. at 274, 100 S. Ct. at 2189, 65

L. Ed. 2d at 125); see also Brink, 39 F.3d at 424 (placing informant in

cell with pretrial detainee could represent a deliberate effort to obtain

incriminating evidence in violation of Sixth Amendment).            As noted in

Kimball, if the state placed an informant back with the defendant after he

expresses a willingness to cooperate, the state intentionally “creat[ed] a

situation likely to induce” incriminating statements.           United States v.

Kimball,   884   F.2d   1274,     1278   (9th   Cir.   1989).     Under   these

circumstances, the government takes the risk that the informant will

engage in deliberate elicitation. See id.

      Yet there is authority for the proposition that mere placement of a

person in a cell with a defendant, standing alone, is not sufficient to

establish agency. Taylor, 800 F.2d at 1016 (majority opinion). Yet even

in more cautious courts, the placement of an informant in a jail in

proximity to a defendant, as in Henry, is a factor to be considered in

determining whether the informant should be regarded as an agent of the

state for Sixth Amendment purposes. See, e.g., Henry, 447 U.S. at 274,

100 S. Ct. at 2189, 65 L. Ed. 2d at 124; Brink, 39 F.3d at 424.

      h. Summary.        No talismanic test, mechanical checklist, or

mathematical formula exists for determining whether an informant is an
                                     46

agent for Massiah purposes. Instead, a court must determine—under all

the facts and circumstances—whether the relationship between the state

and an informant is such that the state has violated its affirmative duty

under Moulton to protect the Sixth Amendment rights of defendants.

      3. Approach to deliberate elicitation.

      a. Introduction. A second important issue in the federal caselaw is

the meaning of the elusive phrase “deliberate elicitation.”            Before

exploring the meaning of the term, we must first note that it is clear that

deliberate elicitation is not the same as an interrogation.        Fellers v.

United States, 540 U.S. 519, 524, 124 S. Ct. 1019, 1022–23, 157

L. Ed. 2d 1016, 1022–23 (2004); see also Brewer, 430 U.S. at 399, 97

S. Ct. at 1240, 51 L. Ed. 2d at 436–37 (stating that the detective “set out

to elicit information from [the defendant] just as surely as—and perhaps

more effectively than—if he had formally interrogated him”).                Yet

Kuhlmann suggests that “the primary concern” of Massiah and its

progeny   is   to   protect   defendants   from   “secret   interrogation   by

investigatory techniques that are the equivalent of police interrogation.”

477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384.

      In Henry, the Court seemed to embrace a three-part test to

determine if the relationship between the government and the jailhouse

informant was “likely” to elicit statements from a defendant in the

absence of counsel.     447 U.S. at 270–71, 100 S. Ct. at 2186–87, 65

L. Ed. 2d at 122.     The three prongs of the test were the relationship

between the state and the informant, the fact that the informant and the

defendant were both incarcerated, and the fact that the informant was

under indictment.      Id.    There is nothing in Henry that requires a

defendant to show what actually happened at the jailhouse between the

informant and the defendant.       Instead, the Court in Henry held the
                                       47

creation of an environment likely to lead to elicitation was sufficient to

establish the constitutional violation. Id. at 271–72, 100 S. Ct. at 2187,

65 L. Ed. 2d at 123.      Yet in Henry it was clear that the informant

engaged in some conversations with the defendant. Id. at 271, 100 S. Ct.

at 2187, 65 L. Ed. 2d at 122–23.

      In   Kuhlmann,    however,      the   Supreme   Court   focused   more

extensively on the deliberate-elicitation test. 477 U.S. at 459, 106 S. Ct.

at 2629–30, 91 L. Ed. 2d at 384–85. There is language in Kuhlmann that

seems to require that a defendant raising a Massiah challenge must

specifically show that the jailhouse informant took active steps to elicit

uncounseled statements by the defendant.              Id. (stating that the

defendant must show that “the police and their informant took some

action” (emphasis added)).        In short, under this theory of Kuhlmann,

merely establishing that the state created an environment where

elicitation of an uncounseled defendant was likely would not be

sufficient. Under this more expansive view of Kuhlmann, the defendant

must show, as a matter of fact, that the jailhouse informant was more

than a “passive listener.” Accordingly, under this understanding, active

participation of some kind by the informant is required. An important

issue under this reading of Kuhlmann is identifying what type of actions

by a jailhouse informant are sufficient for a finding of deliberate

elicitation and what actions may be regarded as merely incidental and

constitutionally insignificant.

      b. Pure “listening post” cases.       There are occasions, of course,

where the jailhouse informant merely overhears incriminating statements

but does not participate at all in an interaction directly with the

defendant.   Where the evidence shows that the informant truly was a

passive listening post—when he simply listened to conversations between
                                       48

defendant and another inmate—courts do not find a Sixth Amendment

violation. For instance, in United States v. Mourad, the court found no

deliberate elicitation when the government agents overheard the

defendant make incriminating statements to his wife on the telephone.

729 F.2d 195, 201 (2d Cir. 1984).             This was a classic example of

obtaining incriminating statements by luck or happenstance.

      But the boundary between listening-post cases and cases involving

deliberate elicitation is fraught with border disputes.           For instance,

consider two cases from Kentucky. In Thurman v. Commonwealth, the

Kentucky Supreme Court concluded that the informant was, in fact, a

passive listening post.     975 S.W.2d 888, 895–96 (Ky. 1998).            But in

McBeath, the Kentucky Supreme Court rejected a claim that an

informant—who recorded statements by a defendant—acted as a passive

listening post when the informant engaged in conversations about the

offense and discussed trial strategy with the defendant. 244 S.W.3d at

29, 34.

      In fact, in many cases where courts found the informants to be

acting as listening posts, the informant was not literally silent but

instead engaged in some communication with the defendant.                       The

question in the caselaw is whether such communication was active or

passive. See Thomas, 708 F.2d at 136 n.5; Ammeter, 72 Iowa L. Rev. at

1431–36.

      c. Requirement      that    informant   initiate   discussion   leading    to

incriminating statements.        It is sometimes claimed that an informant

must initiate the conversation about the crime in order to violate

Massiah and its progeny. But Henry made clear a Massiah violation may

occur even when the defendant initiates discussion of criminal conduct.

Henry, 447 U.S. at 271–72, 100 S. Ct. at 2187, 65 L. Ed. 2d at 123; Bey
                                     49

v. Morton, 124 F.3d 524, 530 (3d Cir. 1997). But deliberate elicitation is

not a question of timing—it is a question of substance. Faithfulness to

Henry requires that there be no escape from honoring the defendant’s

right to counsel simply because the informant initiates the discussion of

the general subject matter of the crime. The better view is that there is

no requirement that the informant begin the conversation if he or she

subsequently    encourages    the     defendant      to        provide   additional

incriminating information by his or her responses.

      d. Active vs. passive communication: responsive remarks.                 Where

informants literally do not take part in the conversation, but only listen,

the cases are relatively easy.     More difficult are situations where the

jailhouse informants are not completely silent bystanders but have some

degree of direct interaction with the defendant.               The question then

becomes, under the expansive view of Kuhlmann, whether the actions of

the informant were active or passive. Sometimes the courts distinguish

casual   remarks   from   statements      designed        to    deliberately    elicit

incriminating statements.        In other cases, the courts distinguish

responsive comments from more probing remarks.

      For instance, in McDonald v. Blackburn the defendant returned

from a meeting with police to his jail cell and declared to the jailhouse

informant that police had “the ring.” 806 F.2d 613, 618 (5th Cir. 1986).

When the informant asked “what ring?” the defendant answered that it

was the ring taken from the murder victim. Id. The Fifth Circuit found

this simple response was not an action designed to deliberately elicit

incriminating remarks. Id. at 622.

      But a different result occurred in Murphy, 862 N.E.2d at 30. In

that case, the informant questioned the defendant about “what he did

about his anger toward the victim.”        Id. at 44.           Plainly, unlike in
                                       50

McDonald, this was not merely a response to the statement by the

defendant, but was a question designed to enhance the substance of the

communication between the defendant and the informant. Id. at 44–45.

The Massachusetts Supreme Judicial Court found this statement was

sufficient deliberate elicitation to trigger a Massiah violation. Id. at 46.

       e. Active or passive communication: clarifying questions. Matteo is

a case considering the question of whether responding to a defendant’s

statements by asking follow-up or clarifying questions amounts to

deliberate elicitation under Massiah. 171 F.3d at 877. In Matteo, the

defendant called the informant and asked him to retrieve the murder

weapon for him. Id. at 881–82. In the first conversation initiated by the

defendant, the defendant revealed the gun’s general location. Id. at 882.

During this conversation, the informant said virtually nothing at all. Id.

at 882–83. The police, however, could not find the gun based upon the

information volunteered by the defendant in the first conversation. Id. at

883.     As a result, the police arranged for a second telephone

conversation. Id. In the second conversation, the informant advised the

defendant that he could not find the gun. Id. at 883–84. In the first

conversation, the informant’s responses included seventy-three one-word

expressions such as “okay” and “yeah.”          Id. at 896 n.3.    Nonetheless,

during the second conversation, the informant asked some clarifying

questions regarding the location of the gun:

       On the far side, on the side all the way closer to your home?
       . . . [I]s it in the water? . . . So it’s not in the grass? . . . So
       it’s almost underneath the bridge? . . . Was the water frozen
       when you dropped it?

Id. at 908 (McKee, J., concurring). The majority found that the clarifying

questions were directly responsive to statements made by the defendant.
                                     51

Id. at 896 (majority opinion).       The court concluded there was no

deliberate elicitation under Kuhlmann. Id. at 897.

      Three judges, however, dissented on the issue of whether the Sixth

Amendment was violated, but concurred in the result because of

harmless error. Id. at 905 (McKee, J., concurring). According to these

judges, the police directed the informant to obtain more information in

the second conversation in order to find the gun.         Id. at 908.    The

dissenters argued that the many monosyllabic answers did not transform

the informant into a listening post when the very purpose of the second

conversation was to find out more information about the location of the

gun and the informant specifically asked questions designed to obtain

greater details about its location. Id. at 909.

      The issue of clarifying questions was also considered in United

States v. Jacques, 684 F.3d 324, 330 (2d Cir. 2012). Here, in one of the

conversations, when the defendant stated that the actual killers had

planted evidence, the informant asked, “[W]hat did they do?             What

. . . kind of evidence?”   Id. at 330 n.2 (alteration in original).   Yet the

court found no Sixth Amendment violation because the jailhouse

informant was “entirely passive.” Id. at 331–32. According to the court,

the few follow-up questions posed by the informant were not “of a

probing nature.” Id. at 332. The court expressly reserved the question of

whether limited follow-up questions could ever be found to stimulate

discussion and thus be deliberate elicitation. Id.

      A similar issue was confronted in York, 933 F.2d at 1343. In York,

the informant and York were engaged in daily conversations, “kind of

digging in each other’s past.” Id. at 1359. York told the informant that

his son testified against him in his first trial and thought that York had

killed his mother. Id. When the informant observed, “You must have
                                    52

been pretty mad at the bitch,” York declared, “Mad enough to put a

bullet in the back of her head.” Id. The court found the statement of the

informant not sufficient to rise to the level of deliberate elicitation. Id.

The court noted that informants are not required to reveal their status by

not responding to subjects, to remove themselves from situations that

might uncover incriminating information, or to abruptly change the

subject when inmates unburden themselves. Id.

      Other cases are more critical of follow-up questions. For example,

in Currington, an Idaho appellate court rejected claims that the informant

was acting as a mere listening post when the informant asked some

twenty questions to follow up on statements made by the defendant. 746

P.2d at 1003–04 (majority opinion). Similarly, in State v. Mattatall, the

informant asked questions of the defendant and then pressed him for

“clarification of his equivocal responses.” 525 A.2d 49, 52 (R.I. 1987). In

these cases, follow-up questions were sufficient to trigger a Massiah

violation.

      f. Active or passive communication: casual remarks.      Some cases

seem to distinguish between casual remarks not designed to elicit

incriminating statements and those that do.        An illustrative case is

Commonwealth v. Hilton, 823 N.E.2d 383 (Mass. 2005). In Hilton, a court

officer was escorting a murder and arson defendant in leg irons after

arraignment into a holding area. Id. at 391. The charges for which she

was being arraigned stemmed from a blaze that destroyed a residence.

Id. at 388, 391. The defendant stated that her son had warned her that

leg irons were “no good.”     Id. at 391.    The court officer asked the

defendant who her son was. Id. In response, the defendant made the

incriminating statement, “I hope he forgives me . . . . I could have killed

my grandchildren.”     Id.   At that point, the court officer asked the
                                        53

defendant a series of questions about whether she had lit the fire, why

she had done so, and whether she knew about the other occupants of the

house.   Id.   The Massachusetts Supreme Judicial Court held that the

court officer’s question regarding the identity of the defendant’s son was

a casual remark not designed to elicit incriminating statements. Id. at

401. But the court officer’s follow-up questions about the crime crossed

the Massiah line and were properly suppressed. Id.

       g. Deliberate placement of informant with cellmate. In Kuhlmann,

the Supreme Court stated that the Sixth Amendment does not “forbid . . .

admission in evidence of an accused’s statements to a jailhouse

informant who was ‘placed in close proximity but [made] no effort to

stimulate conversations about the crime charged.’ ”          477 U.S. at 456,

106 S. Ct. at 2628, 91 L. Ed. 2d at 382 (quoting Henry, 447 U.S. at 271

n.9, 100 S. Ct. at 2187 n.9, 65 L. Ed. 2d at 123 n.9) (alteration in

original). Nonetheless, cases stress the role of the state in placing the

informant in the jailhouse in a fashion designed to provoke discussion

and potential incriminating statements.         For instance, in Brink, the

placement of an informant in close proximity to the defendant was a

factor in determining agency. 39 F.3d at 424. On the other hand, in

Taylor, the Tenth Circuit came to the conclusion that the mere placement

of an informant in a jail cell with a defendant is insufficient to establish

agency. 800 F.2d at 1016. But see Tomkovicz, Adversary System, 22

U.C.   Davis   L.   Rev.   at   79–81    (asserting   when   the   government

surreptitiously enters defendant’s presence as a listener, it is not wholly

passive and that Massiah should regulate passive reception).

       h. Affirmative acts to cultivate trust.        A number of the cases

emphasize that when the informant engages in acts designed to

encourage the defendant to trust the informant, these acts may at least
                                         54

be a factor in determining whether deliberate elicitation occurred. For

instance, in Murphy, the informant gained the trust of the defendant by

helping him hide a shank.            862 N.E.2d at 44.           Such trust-building

activity   contributes   to    the    likelihood      of    obtaining   incriminating

information.

      Yet in State v. Robinson, an informant prior to his arrest had

worked with certain state agents.         448 N.W.2d 386, 390 (Neb. 1989).

After the informant’s arrest, he was placed in a corrections center where

the defendant was also incarcerated.            Id.   The officers with whom the

informant had the relationship had no role in his placement. Id. In the

cellblock, the informant asked the defendant why he was in prison, to

which the defendant responded that it was none of his business.                   Id.

Later, the defendant asked the informant if there were some people he

could contact to help raise bail money, which the informant said he

would help with—an act designed to generate trust with the defendant.

Id. The trial court, however, found these facts insufficient to establish

active elicitation. The Nebraska Supreme Court affirmed. Id. at 396.

      i. Development of notes and written statements.                   There are a

handful of cases dealing with the development of written notes or

documents by informants.         In United States v. Pannell, an informant

received   listening-post     instructions     from        law   enforcement.    510

F. Supp. 2d 185, 188 (E.D.N.Y. 2007).              The informant, however, took

detailed, handwritten notes of incriminating information supplied by the

defendant.     Id.   The district court did not believe that the informant

followed the listening-post instructions, in part because of the detailed

nature of the notes.        Id. at 192.       The district court noted that the

informant must have participated in active conversation with the
                                     55

defendant in a deliberate attempt to elicit incriminating remarks. Id. at

193.

          A different result was reached in Frederick v. State, 755 N.E.2d

1078 (Ind. 2001). In that case, the informant’s taking of notes, even if at

the request of the police, was held not to violate Sixth Amendment rights

if the informant did not elicit the information.      Id. at 1082; see also

Commonwealth v. Harmon, 573 N.E.2d 490, 493 (Mass. 1991) (finding

the taking of notes about incriminating statements did not mean, under

the facts and circumstances, that the note-taker was an agent of the

state).

          E. Application of Massiah in Iowa Cases. In State v. Nelson, a

defendant made incriminating statements to a jailhouse informant. 325

N.W.2d 118, 119 (Iowa 1982). The informant then told authorities about

the statements.      Id.   The informant was returned to his cell, where

further incriminating statements were obtained from the defendant. Id.

Citing the three-factor Henry test, we noted there was nothing to indicate

that the state had “put him up to it.” Id. at 119–20. Specifically, there

was nothing to indicate that Jackson had an agreement that he would be

paid or would receive more favorable treatment for the information. Id.

at 120.      No promises were made to give anything to the informant in

exchange for incriminating statements. Id. We thus found, as a matter

of fact, that the informant was not acting as an agent of the state. Id.

We did not consider the question of deliberate elicitation.

          V. Discussion of Right-to-Counsel Issue.

          A. Attachment. The State contends that the right to counsel did

not attach because the arrest warrant was not issued at the time that the

State’s officers met with Johnson on July 12.        The critical time is not

when the State met with Johnson or any other informant. The critical
                                         56

time for purposes of attachment is when the informants obtained the

incriminating information.        See Randolph, 380 F.3d at 1143 (“Once a

defendant’s Sixth Amendment right to counsel has attached, the

government     is    forbidden    from   ‘deliberately     eliciting’   incriminating

statements from the defendant.” (Emphasis added.)). Here, there is no

dispute that the right to counsel attached by then. Therefore, we reject

the State’s attachment argument.

        B. Agency Relationship.          We next consider whether the State

had an agency relationship with its informants sufficient to support a

Massiah-type claim. The court of appeals majority found such agency

with respect to Johnson based on the totality of the circumstances and

the dissent agreed.

        1. Johnson.      We      think   the    record    establishes    an   agency

relationship existed as to Johnson.            Whether a sufficient relationship

exists between an informant and the state should not turn on formalistic

analysis but on the more general proposition of whether an informant is

seeking to provide information to the state in return for some kind of

consideration.      Ayers, 623 F.3d at 311–12.           That was clearly the case

here.

        We do not regard the State’s instructions, or lack of them, as

preventing an agency relationship for Massiah purposes. In Henry, the

state explicitly instructed the informant not to engage in questioning, but

the failure of the informant to follow instructions did not mean an agency

relationship was not present. 447 U.S. at 271–72, 100 S. Ct. at 2187, 65

L. Ed. 2d at 122–23. Also in Henry, the Court emphasized the jailhouse

setting as a circumstance creating especial danger of a Sixth Amendment

violation, a concern fully applicable here. Id. at 273, 100 S. Ct. at 2188,

65 L. Ed. 2d at 124.
                                    57

        Yet as in Henry, we think the incentives for Johnson were

sufficiently substantial that the State should know that there was a

likelihood that the informant would cross the line into deliberate

elicitation. Detective Smithey instructed Johnson to report back to him

if he learned something.      Given the powerful incentives plus the

invitation to report back to Detective Smithey, Johnson was encouraged

by the State to become a criminal investigator.     If we took a contrary

approach, we would promote a “wink and a nod” loophole to Massiah.

Ayers, 623 F.3d at 312. We further note that Johnson, an inmate at the

Muscatine County Jail, met with Detectives Smithey and Clarahan a day

prior to Marshall’s arrest. Marshall was then incarcerated in the same

jail.   The fact that Johnson obtained incriminating information from

Marshall does not look like luck or happenstance.

        We also reject the State’s argument regarding the fact that the

State officials asked for information about several persons of interest

prevents us from finding an agency relationship between the State and

Johnson. Whether the State seeks information about one person as in

Massiah and Kuhlmann or three persons as here, the incentives for the

informant remain precisely the same and the risks to the accused are no

different than if there was just one target. We do not believe that the

State can prevent the formation of an agency relationship by seeking

information about multiple persons or by letting loose an informant at

large in the jailhouse. We find the discussion in York persuasive. See

933 F.2d at 1356–57. We do not think the United States Supreme Court

intended to allow the states to employ informants such as “the

monsignor” to engage in wholesale violation of the right to counsel. See

Moose, 602 A.2d at 1270.     To do so would be contrary to the State’s

affirmative obligation to ensure that it does not take action that violates
                                      58

or interferes with the relationship between a defendant and his counsel.

See Moulton, 474 U.S. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at 492.

      2. Freeman.     Marshall has not, however, established an agency

relationship between the State and Freeman on the present record. The

record indicates that Freeman may have hoped to receive a benefit as a

result from his testimony, but there is no evidence of a proffer agreement

or any kind of meaningful relationship between Freeman and the State.

See Cox, 708 F.2d at 136; Jackson, 684 A.2d at 752; Nelson, 325 N.W.2d

at 120.   Freeman was the classic entrepreneur, seeking to market his

information without any advance arrangement. We reach this result as

to Freeman even though he clearly deliberately elicited incriminating

statements from Marshall.       Taylor, 800 F.2d at 1016 (holding if the

informant was not a government agent, no Massiah violation occurred

even if there was deliberate elicitation).

      3. Martin. Unlike Freeman, Detective Smithey testified that Martin

had a proffer agreement. The evidence showed that Martin had provided

information under the proffer agreement on two other occasions and that

he remained in the Muscatine County Jail for a lengthy period of time

prior to sentencing.      Detective Smithey did not mention in direct

examination that he met with Martin about the Versypt murder, but he

conceded on cross-examination that he “may have asked him” if he had

any information about the Versypt murder during one of his proffer

interviews.    Further, Martin and Johnson were codefendants, and

Detective Smithey conceded that Johnson would probably pass on to

Martin that the State was interested in obtaining information about

Marshall’s involvement in the Versypt murder.     In other words, it was

likely that the State’s informant, Johnson, would pass the State’s

interest in Marshall on to his codefendant, who also had a cooperation
                                    59

agreement and had previously provided information to the State on at

least two occasions. After Marshall arrived at the Muscatine County Jail

in August, Martin was moved into his cellpod.       Curiously, then, after

Detective Smithey met with Johnson on October 3 at the Muscatine

County Jail, Detective Smithey then saw Martin in a room off the library,

who just happened to be talking to his lawyer and just happened to have

with him his notes and Marshall’s notes about the Versypt murder.

Notably, Martin had taken steps to document this information.

      Whatever else he is, Martin is not a classic jailhouse entrepreneur.

He had a proffer agreement and had at least two interviews under his

belt prior to providing information about Marshall.     Further, Detective

Smithey’s admission that he may have asked him if he had information

about the Versypt murder, that Johnson in any event would probably

advise him of the State’s interest, Martin’s timely transfer into Marshall’s

cellpod, and the remarkable coincidental meeting with Detective Smithey

on   October 3—where      Martin   presented    Detective   Smithey    with

documents—suggests more than luck or happenstance occurred here. In

any event, as pointed out above, the federal cases are divided on the

question of whether deliberate elicitation by informants at large gives rise

to a Massiah violation. We think the better view, however, is that it does.

York, 933 F.2d at 1357.      As a result, for purposes of this case, we

conclude that Martin should be considered an agent of the State for

Massiah purposes.

      C. Deliberate Elicitation.      We next confront the question of

deliberate elicitation.

      1. Johnson.     The evidence shows that Johnson asked Marshall

“what was he in there for” when they were both together in segregation in

the Muscatine County Jail.      The evidence also shows that Marshall
                                     60

ultimately   provided   extensive   information   to   Johnson      about   the

underlying crime. As noted above, the disclosures made by Marshall are

extensive—they go on, and on, and on.          According to Johnson, the

statements made to him by Marshall included the following comments:

(1) there was no evidence or witnesses to the crime; (2) Marshall went to

Burlington because police kept bothering him; (3) the police harassed

him in Burlington and threatened him; (4) at first police said they had

nothing on him and then they only had “a little gun powder;” (5) he was

looking at a lot of time; (6) he, Calvin, and Weezy (Thompson’s nickname)

were playing dice in the hallway; (7) he arrived at the idea to rob the

landlord; (8) Weezy then went into the apartment; (9) the robbery went

wrong; (10) the landlord got shot; (11) the shot was loud; (12) he froze in

the hallway and then ran out the back; and (13) he reentered through

the front door. No direct evidence, however, was offered at the motion to

suppress hearing or at trial about what Johnson specifically said to

Marshall.    Surely it is unlikely that Marshall engaged in an extended

Shakespearean soliloquy about the crime.          But the record does not

provide an “I said, then he said, then I said” type of narrative.

      On the one hand, this situation could be regarded as a failure of

proof. It is, perhaps, conceivable that Johnson responded to Marshall’s

statements with neutral “Oh’s” and “Uh’s,” other neutral filler comments,

or solely with comments that did not encourage Marshall to elaborate.

Recall that in Matteo a recorded telephone conversation revealed the

informant had engaged in seventy-three one-word utterances in response

to incriminating statements by a defendant. 171 F.3d at 896 n.3. Such

an argument, however, did not persuade the district court in Pannell,

510 F. Supp. 2d at 192. In Pannell, the informant claimed he did not ask

the defendant any questions about his case and that the defendant
                                     61

volunteered his incriminating comments during lengthy conversations

about everyday matters.     Id.   The district court found the informant’s

assertion incredible. Id. The district court noted that the informant “had

great incentive to actively encourage [the defendant]” in light of his heavy

sentence. Id. The district court concluded that there must have been

some active encouragement from the informant and suppressed the

statements. Id. at 193.

      Yet on the record developed at trial, we think there has been a

failure of proof.    It is conceivable that Johnson only responded to

volunteered incriminating statements made by Marshall with “Ah’s” and

“Oh’s” or other comments that did not encourage Marshall to continue

with the narrative. See Matteo, 171 F.3d at 896. Under Kuhlmann and

related cases, such neutral or responsive comments are not considered

deliberate elicitation. See Kuhlmann, 477 U.S. at 460–61, 106 S. Ct. at

2630–31, 91 L. Ed. 2d at 385. It is remarkable, perhaps, that Marshall’s

counsel—both at the motion to suppress and at trial—did not ask any

questions of Johnson regarding his degree of participation in the

communications with Marshall.       It is possible that Marshall’s counsel

was not aware of the deliberate-elicitation requirement for finding a

Massiah violation. It is also possible, perhaps, that Marshall did provide

a lengthy, unprompted confession to Johnson, and said as much to his

attorney. The record, however, is not adequate on this direct appeal to

resolve any potential ineffectiveness claim based upon the failure of

counsel to explore deliberate elicitation.   A different record, of course,

might be developed on remand.

      2. Martin.    As to Martin, there is no doubt that he deliberately

elicited incriminating statements from Marshall. At the outset, Martin

got “legal stuff” for Marshall about manslaughter and armed robbery.
                                     62

According to Martin, “I told him, you know, you might have to tell your

side of the story if you’re going to get a lesser charge. So he went to write

the story down . . . .”   Martin’s suggestion that it was in Marshall’s

interest to get out his side of the story is, of course, a classic police

interrogation technique. See, e.g., State v. Monroe, 645 P.2d 363, 365

(Idaho 1982) (finding an interrogation when the police officer asked the

defendant “if he would like to give his side of the story”); State v. Hebert,

82 P.3d 470, 481 (Kan. 2004) (inviting suspect to “tell his side of the

story” constitutes an interrogation); State v. Hannon, 636 N.W.2d 796,

806 (Minn. 2001) (warning defendant that “his side of [the] story [would]

never be known” after defendant invoked his right to counsel violated

defendant’s rights); State v. Lynch, 477 N.W.2d 743, 746 (Minn. Ct. App.

1991) (asking “[w]hat’s your side of the story?” was an interrogation).

Martin engaged in deliberate elicitation by any application of the

Kuhlmann standard. See Calder v. State, 133 So. 3d 1025, 1030–31 (Fla.

Dist. Ct. App. 2014) (reminding accused that this was his opportunity to

present his side of the story and that doing so would benefit him is

“reasonably likely to elicit an incriminating response” (quoting Rhode

Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d

297, 308 (1980))); State v. Harris, 741 N.W.2d 1, 7 (Iowa 2007)

(characterizing statements to “get it out on the table” and “[t]ell us what

really happened” as “reasonably likely to elicit an incriminating response”

(quoting Innis, 446 U.S. at 301, 100 S. Ct. at 1689, 64 L. Ed. 2d at 308

(third quote))); Hebert, 82 P.3d at 483 (holding “[w]ould you like the

opportunity to tell me your side of the story” elicited confession); see also

Mark A. Godsey, Shining the Bright Light on Police Interrogation in

America, 6 Ohio St. J. Crim. L. 711, 720–22 (2009).
                                      63

        Under the circumstances, Martin simply cannot be characterized

as “a passive listener to a heartfelt confession.” Franciscus, 710 A.2d at

1120 (majority opinion).

        D. Sua Sponte Harmless Error Under Blaise. The State did not

argue harmless error in its briefing in this case. Yet in In re Detention of

Blaise, we held that we could consider the issue of harmless error when

it was not raised in the briefing in a narrow category of cases.        830

N.W.2d 310, 319 (Iowa 2013). Factors to be considered include “(1) the

length and complexity of the record, (2) whether the harmlessness of the

error or errors found is certain or debatable, and (3) whether a reversal

will result in protracted, costly, and ultimately futile proceedings in the

district court.” Id. (quoting United States v. Giovannetti, 928 F.2d 225,

227 (7th Cir. 1991)). The main factor, however, is “the extent to which

the harmlessness of the error is open to question.” Id. at 320.

        The first Blaise factor, length and complexity of the record, cuts

against allowing a sua sponte harmless-error review.        The trial lasted

thirteen days with over a hundred exhibits.       This was not a relatively

short proceeding where the lack of harm is obvious from a cursory review

of the record. Further, we note that the State originally charged someone

else,   Charles   Thompson,    with   Versypt’s   murder.     This   original

prosecution ended in a mistrial. This suggests that the question of who

was responsible for the murder has been an open question and has

shifted over time.

        We now turn to the other Blaise factors, considering whether

reversal will lead to futile proceedings and especially the extent to

whether the harmlessness of error is open to question.

        1. Opening and closing statements as windows to sua sponte

Blaise harmless error. We look to the opening and closing statements of
                                   64

the parties as a window into whether the demanding Blaise sua sponte

harmless-error standard is met.

      In its opening statement, the first substantive line from the

prosecution was, “This is a case about a robbery that went wrong.” The

prosecution outlined in detail uncontested facts related to the murder.

The prosecution continued by stating that the evidence would show that

Marshall observed Versypt as he approached the apartments on the day

of the murder.     The prosecution noted that Charles Thompson, the

previous defendant in the Versypt murder, would testify that Marshall

took the clothes he was wearing on the day of the murder, placed them

in a plastic bag, and threw them away. The prosecution also stated that

the testimony of its experts would show gunshot residue on articles of

Marshall’s clothing.

      The State closed by outlining the expected testimony of its three

informants.    The prosecution noted that these men were persons

Marshall “thought that he could talk to and confide in.” The prosecution

summarized that Johnson would explain that Marshall told him that he,

Charles Thompson, and another individual were playing dice and that

Marshall and the other person decided to rob the landlord of rent money.

The prosecution indicated that Martin was asked by Marshall “to help

him write something that would make the shooting sound like an

accident.” The prosecution stated that Marshall asked Freeman for his

help in stating that the shooting was an accident and asked Freeman to

talk to his attorney about it.

      In its opening statement, the defense began by noting that many of

the facts were not in dispute. What was in dispute was “who did it.” The

prosecution noted that after a long and intensive investigation, the State

charged Charles Thompson—and not Marshall—with the murder. With
                                          65

respect to the three informants, the defense emphasized that they needed

to provide incriminating information to get reduction of their sentences.

The defense emphasized the lack of DNA and fingerprints linking

Marshall to the crime.      With respect to gunshot residue, the defense

noted that gunshot residue was on the clothing of other occupants of the

apartment where Marshall lived, including Charles Thompson.                    In

closing, the defense declared, “Mr. Freeman, Mr. Johnson, Mr. Martin,

those are witnesses that the State needs for their case.”            The defense

again    attacked   their   credibility    and   their   incentive   to   provide

incriminating statements.

        In the prosecution’s closing statement, it methodically summarized

the testimony of trial witnesses.          As in the opening statement, the

prosecution developed in depth the details of John Versypt’s life, the

investigation of the crime scene, and the autopsy.             The prosecution

described in detail the testimony of Martin, Freeman, and Johnson. The

prosecution emphasized that Martin asked Marshall whether Marshall

trusted him and that afterwards they developed a plan through which

both would potentially benefit.

        The prosecution read verbatim the entire contents of Exhibit 105,

the statement drawn up by Marshall at the request of Martin.                 The

prosecution emphasized to the jury, “[Y]ou’ll be able to take a look and

read it for yourself.” The prosecution further summarized the testimony

of Freeman and Johnson.           All in all, the prosecution spent twelve

consecutive pages of transcript discussing the testimony of the

informants. The prosecution emphasized that the jury will “get to review

[the written statement] where [Marshall] lays out and admits that he’s

the one who shot John Versypt.” The State recognized that there was a

lack of scientific evidence linking Marshall to the crime, noting the trial
                                    66

was “not a TV show, not everything is wrapped up.” But the prosecution

emphasized that “Justin Marshall did tell others what happened, and

they did testify.”

      In the defense’s closing statement, the defense argued that the

State “has almost no physical evidence against Justin Marshall,” no

eyewitnesses, DNA, or fingerprints.      The defense noted that while

gunshot residue, which has the capacity to migrate from one article of

clothing to another, was found on Marshall’s clothing, it was also found

on the clothing of Thompson and Courtney White, who from time to time

occupied the same apartment as Marshall. The defense noted testimony

that the gun found at the crime scene belonged to Thompson, not to

Marshall. The defense pointed at Thompson as a potential perpetrator,

noting that in September 2011 at Thompson’s trial the State identified

him as the shooter.

      After citing the shortcomings of the State’s evidence, the defense

declared, “[S]o what it comes down to, ladies and gentlemen, is what

Justin Marshall said or supposedly said to the three convicted felons in

the Muscatine County jail, Earl Freeman, Carl Johnson, and Antonio

Martin.” According to the defense, “[T]he State’s whole case comes down

to three long-time career criminals who have done this before in order to

get a reduction in their sentences . . . .”   In rebuttal, the prosecution

focused immediately on the testimony of the three informants, noting

that the prosecution had been “perfectly honest” about them.          The

prosecution then briefly recanvased aspects of the trial, including

inconsistencies in Marshall’s October 9 statement and testimony

suggesting he disposed of his clothing after the murder. In closing, the

prosecution again returned to the subject of the informants.          The

prosecution referred again to Exhibit 105, noting that “[t]his is not
                                    67

something that was written by one of them. This was something written

by Justin Marshall.”

         2. No sua sponte harmless error under Blaise.    On the record

before us, we decline to find sua sponte that the error in admitting

Martin’s testimony was harmless.         This was the second trial in

connection with Versypt’s murder, with the first trial against a different

defendant ending in a mistrial. The State then charged Marshall and a

thirteen-day trial ensued.     The evidence admitted through Martin—

especially incriminating written materials that virtually amounted to a

confession—played a major role in the opening and closing statements of

the parties.    The prosecution read the statement verbatim in closing

argument and in rebuttal emphasized the written exhibit as proof of

Marshall’s guilt. While Freeman offered testimony in some ways similar

to Martin’s, we do not think we can characterize Martin’s contribution as

merely cumulative in a Blaise-type review for sua sponte harmless error.

         In addition, there was little direct scientific evidence linking

Marshall to the crime, and Thompson was a good alternative suspect—

indeed, some of the jurors in Thompson’s trial were unwilling to acquit

him of the charge. Further, we note that the jury in this case asked a

number of questions and ultimately were not unanimous on the theory of

guilt.    We simply do not believe the narrow exception to our ordinary

issue preservation rules found in Blaise has been met based on the

record in this case.

         E. Summary of Massiah Holdings. Based on our analysis of the

record, we conclude that Johnson and Martin were agents of the State.

While Martin plainly deliberately elicited information from Marshall, we

conclude that the evidence of deliberate elicitation is insufficient as to

Johnson. As a result, the motion to suppress should have been granted
                                   68

as to Martin. Because the State does not argue harmless error and we

cannot say with certainty that the error was harmless under Blaise

standards, we vacate Marshall’s conviction and remand the case for a

new trial.   We decide this case based on the Sixth Amendment of the

United States Constitution, since this was the approach followed by the

district court to decide the case. While we reserve the right to interpret

and apply the right to counsel provision in article I, section 10 of the

Iowa Constitution in a fashion different than under its federal

counterpart, see State v. Young, 863 N.W.2d 249, 280 (Iowa 2015) (“Our

tradition of the right to counsel is simply broader than that represented

by [the federal counterpart].”), we do not consider any questions in this

case related to the right to counsel under this state constitutional

provision.

      VI. Conclusion.

      For the above reasons, we hold that the district court improperly

overruled the motion to suppress as to Martin. As a result, the decision

of the court of appeals must be vacated and the judgment of the district

court must be reversed and the case remanded to the district court for

further proceedings.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED.

      All justices concur except Mansfield, Waterman, and Zager, JJ.,

who concur in part and dissent in part.
                                      69

                                                #13–0739, State v. Marshall

MANSFIELD, Justice (concurring in part and dissenting in part).

      This case can be resolved by common sense, precedent, and basic

constitutional principles.      A defendant who volunteers incriminating

statements to a fellow inmate is not deprived of his Sixth Amendment

right to counsel just because the fellow inmate has a cooperation clause

in his plea agreement and is cooperating with law enforcement. Jail is

not a pure, pristine environment. Its occupants therefore run the risk

that persons with whom they are sharing confidences may be, in

common parlance, “snitches.”        The State does not violate the Sixth

Amendment by taking advantage of this situation so long as the State

does not circumvent the right to counsel by using jailhouse stand-ins to

question inmates. The Iowa City Police Department did not do that here

or anything close to that. I therefore respectfully dissent in part.

      In my view, the court goes well off the tracks in holding that

Antonio Martin’s testimony should have been suppressed. It appears the

Iowa City police had not spoken to Martin at all about the Versypt killing

before the defendant and Martin discussed it in jail; at most Martin had

been asked one general question about it. Furthermore, Martin disclosed

to the defendant from the beginning that he was a snitch, and the

defendant intentionally sought to use Martin as a snitch to tell his version

of Versypt’s death.      As a practical matter, the majority finds a

constitutional violation only because Martin gave the defendant advice

that the defendant’s own counsel would not have given.           Unlike the

court, I would not recognize this new constitutional claim of “ineffective

assistance of fellow inmate.”

      The majority opinion, I fear, threatens to harm legitimate law

enforcement in Iowa. Under the majority’s approach, anyone who enters
                                         70

into a cooperation agreement with the federal government as part of his

or her guilty plea—a fairly common occurrence—becomes a roving agent

“at large” of the State of Iowa. If this person then interacts with another

inmate, even if the interaction merely results in the inmate writing out

what the inmate has already said, a violation of the Sixth Amendment

right to counsel has occurred. I am unaware of any court anywhere in

the country that has adopted such an expansive view of Massiah v.

United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). 2

       I believe the court’s conclusions are driven by a fundamentally

wrong-headed view of the right to counsel. Undoubtedly, the government

has a constitutional obligation not to circumvent defendant’s legal

counsel. And that does happen in some cases, although it clearly didn’t

happen here. However, the majority’s position is that the State has to

make the jail a sanitized environment where every inmate can trust that

any fellow inmate who engages him in conversation isn’t cooperating with

the government.      If the guarantee is violated, any statements can’t be

used even if (as in the case of Martin) the defendant knew the fellow

inmate was cooperating with the government.

       A further flaw in the court’s approach is that it is utterly

unrealistic.   Offenders have snitched on one another ever since Adam

blamed Eve for giving him the forbidden fruit. This will continue to occur

because the nature of plea bargaining and sentencing (especially federal

sentencing) provides a strong incentive for it to occur.               The court’s

opinion, however, provides a strong disincentive for the documentation of


       2Idiscuss below the cases that the court claims support its approach. There is
a Massachusetts case that adopts the majority’s view of agency but requires more by
way of deliberate elicitation than the majority does today. See Commonwealth v.
Murphy, 862 N.E.2d 30, 43–45 (Mass. 2007).
                                          71

such arrangements.         Instead of formal cooperation agreements, which

provide a clear basis for impeaching the informant while also providing a

sanction if the informant doesn’t tell the truth, there will be vague and

muddy informal arrangements.

           I. Additional Factual Background.

           A fair understanding of this case needs to begin with more facts

than the majority provides. The majority’s quick “overview of the crime”

does not adequately convey the strong evidence of Justin Marshall’s

guilt. 3     This evidence helps explain why Marshall was not so much a

victim of jailhouse snitching as a willing participant, when he sought out

others to tell his story in the hope that he would be convicted of a lesser

charge than first-degree murder.

           Several witnesses placed Marshall in the location where Versypt

was killed at the time he was killed.             Marshall was also tied to the

murder weapon. In addition, gunshot residue was found on Marshall’s

jacket.       Marshall’s statements to police were highly inconsistent and

revealed details about Versypt’s death not known to the public. Marshall

later told two fellow inmates—the admissibility of whose testimony is not

questioned by the majority—that he had planned to rob Versypt, that

Versypt went for the gun or otherwise startled him, that as a result

Marshall shot Versypt, and that Marshall then wiped the gun off on his

own jacket and ran.

           John Versypt’s death from a gunshot wound occurred around

4 p.m. on October 8, 2009. Officers found his body lying on the floor on

           3The
              district court found there was substantial evidence to support guilty
verdicts on all of the theories presented to the jury, including that Marshall committed
murder as a principal, that Marshall engaged in joint criminal conduct (i.e., he
intentionally joined a robbery during the course of which Versypt was murdered), and
that Marshall committed felony murder (the felony being robbery). I agree.
                                    72

the back landing of Building C of the Broadway Condominiums. Versypt

had been shot once, with the bullet passing at close range through one of

his hands and his face. Versypt passed away before the officers arrived.

The officers retrieved a multicolored .38 caliber revolver that had been

left near Versypt’s body.

      Shawnta Jackson lived in a third-floor apartment of Building C.

While doing laundry downstairs that afternoon, she had noticed Marshall

and another person (Courtney White) standing outside the back door of

the building. Later, when Jackson returned to get her laundry, she saw

Versypt lying on the ground on the back landing. He was bleeding and

gasping for air. Jackson ran back up to her apartment.

      Andrew Shepard resided in the same third-floor apartment of

Building C as his sister Jackson. After Jackson ran into the apartment

telling Shepard in shock what she had seen, Shepard hurried

downstairs. Versypt was still breathing heavily, and Shepard saw a gun

on the ground. Shepard called the police. While Shepard was on the

phone with the 911 operator, Versypt stopped breathing. Shepard also

saw a drill, a wallet, and signs on the floor. The wallet was open.

      The next day, Shepard discussed with his brother what he had

seen. Marshall joined the pair and asked what kind of gun Shepard had

observed near the body. Shepard said it was a camouflage .38. Marshall

admitted to owning “a gun just like that one.” Oddly, though, Marshall

claimed to have been in Shepard’s apartment at the time of the shooting.

Shepard disputed that, telling Marshall he had not been in Shepard’s

apartment. Marshall insisted he had been in Shepard’s apartment, and

Shepard again disagreed.

      James Brown lived in Building C in an apartment next door to the

apartment where Marshall and Charles Thompson resided. On the night
                                      73

before the shooting, Brown was visiting the other apartment and noticed

a dark-colored gun that appeared to be a .38 lying on the bed in the back

bedroom.    At that time Marshall and Thompson were present in the

bedroom. Brown later saw the actual gun that was retrieved from beside

Versypt’s body. He identified this as the same gun he had seen the night

before the shooting.

      Brown’s account of the shooting generally aligned with Shepard’s.

Brown heard a shot go off and heard the back door of the building “bust

open real quick” but was unable to see anyone exit the building. A few

minutes later, Brown could hear Marshall knocking on the door of his

own apartment, quietly asking his own aunt (who also resided in the

apartment) to let him in.     When Brown opened the door and looked

downstairs, he saw Versypt’s body lying on the landing. Versypt was in

the process of dying, and Shepard was on the phone with the 911

operator.

      On the evening of the shooting, a surveillance camera caught

Marshall and Thompson carrying garbage bags out of Building C, which

they tossed into the dumpster. However, a jacket that Marshall had been

seen wearing during the afternoon of the shooting was later recovered by

police. It tested positive for gunshot residue.

      Marshall   was    interviewed    by   police   and   made   numerous

inconsistent statements.     His recorded interviews were subsequently

played back for the jury.     Initially Marshall denied knowing anything

about the shooting. Later he tried to implicate Thompson, claiming he

heard Thompson talking on the phone about “hitting a sweet lick

[robbery]” around 2:30 p.m. on the day of the fatal shooting. Police were

unable to corroborate from phone records that this call had actually

occurred.
                                            74

         Later still Marshall said that Thompson and someone else had

planned to rob Versypt. He claimed he overheard Thompson saying on

the telephone afterward that “we hit a lick,” but the lick “went wrong.”

Yet further into the interview, Marshall contradicted himself again and

said that these alleged statements were made during a personal

conversation he had with Thompson the night after the shooting.

         Marshall also told police that Versypt had been shot in the face.

When asked how he knew this, Marshall became flustered and claimed

the police had told him. In fact, the police had deliberately withheld this

factual detail.

         Thompson was originally charged with Versypt’s murder. However,

his     trial   ended   in   a   mistrial    when   inadmissible   evidence   was

inadvertently introduced.         Subsequently, he reached a deal with the

State wherein he pled guilty to being an accessory after the fact.

         Thompson ultimately testified against Marshall at Marshall’s trial.

According to Thompson’s testimony, right after the shooting, Marshall

came into their apartment and said that someone had been shot in the

hallway. Later in the evening, Thompson saw Marshall putting the pants

he had been wearing that day in a plastic sack. Marshall then placed the

sack in a larger garbage bag from the kitchen. This was one of the bags

the two men threw out that evening.

         II. The Informants.

         On July 12, 2011, a criminal complaint was sworn out against

Marshall.       Marshall was arrested in Texas several days later and

transported back to Iowa.          On August 1, a trial information was filed

charging Marshall with first-degree murder. Marshall pled not guilty on

August 2. He was thereafter held in custody at the Muscatine County

Jail.
                                    75

      Over the course of the Versypt murder investigation, Detective

Michael Smithey interviewed several jailed individuals he thought might

have information about the killing.      Detective Smithey stated that the

focus of such interviews was “[t]o gather information that they have from

while they were on the street or that they have gathered while

incarcerated.”   Detective Smithey said that individuals who have been

arrested for “federal-level drug crimes” can be particularly helpful in

investigations because they are well known in their communities and can

often “shed light on violent crimes, robberies, serious assaults,

homicides, [and] other [crimes].”        He continued, “People in those

situations are a wealth of knowledge about what is going on in the street

and who is doing what.”          Detective Smithey denied giving any

instructions to the persons he interviewed:

      [P]eople oftentimes ask, do you want us to find it? No, we’re
      not telling you to do anything. If you learn something,
      contact us, but there are no specific directions as to find
      something out about this person or ask them this or
      anything like that.

      Three of these informants ended up testifying against Marshall—

Carl Johnson, Earl Freeman, and Antonio Martin.              The majority

concludes that error occurred only with respect to the admission of

Martin’s testimony. Let me therefore review the testimony of the other

two informants before I get to Martin.

      A. Johnson.     Johnson was being held in the Muscatine County

Jail during the summer of 2011 following a federal conviction for

conspiracy to distribute cocaine. He had entered into a guilty plea that

included a cooperation agreement.          Johnson had originally been

sentenced to 240 months in prison, but after he testified against his

codefendant, his sentence was reduced to 140 months.
                                    76

      On July 12, Johnson went through a proffer interview with

Detective Smithey and Detective Jennifer Clarahan in the presence of

Johnson’s attorney. Detective Smithey subsequently testified regarding

the interview as follows:

            Q. Now, according to your report, the first thing you
      told him was we’re here for information about the death of
      John Versypt or words to that effect, correct? A. May I refer
      to my report?

            Q. Yes. I’m looking at paragraph 2. A. Yes.

            Q. Then, on the next page, he was asked to provide
      information about Charles Thompson, also known as Weezy.
      Do you see that there? A. Yes.

            Q. Paragraph 4, he was asked to provide information
      about Justin Marshall. Do you see that? A. Yes.

            Q. And then paragraph 5, he was asked to provide
      information about Courtney White, also known as Mow-Mow.
      Do you see that? A. Yes.

            Q. So, Officer, first you go into Mr. Johnson and you
      say, we’re here to talk about the killing of John Versypt.
      Then you give him the names of people you’re interested in,
      whether it’s [Charles Thompson], Justin Marshall, or
      Courtney White. Do you recall doing that? A. Yes. It’s in
      the report.

      Johnson    said   he   had   been   a   resident   of   the    Broadway
Condominiums at the time of the shooting, and he remembered

discussing it with other residents when it occurred.                During the

interview, Johnson told Detective Smithey that Marshall had said

Thompson killed Versypt.     Detective Smithey did not ask Johnson to

gather any more information from Marshall, Thompson, or White but did

tell Johnson to “contact me if he learned anything further.”

      In September, Johnson’s attorney contacted Detective Smithey,

indicating that Johnson might have additional information about the

Versypt killing. Detective Smithey accordingly reinterviewed Johnson at
                                    77

the jail.   Johnson said he had learned more from Marshall after both

men had been placed in a segregated area of the jail in August for

separate rule violations.   According to Johnson’s trial testimony, their

discussion went as follows:

            Q. What did you discuss initially with Justin Marshall
      when you first started talking to him while you were in
      segregation? A. Well, when I first—I say to him then, I knew
      him so I asked him what was he in there for.

            Q. And what did he tell you? A. He say, man, they
      got me for that landlord, and he cursed.

            Q. Did he tell you more about what happened that led
      him to be charged or did he tell you more about the landlord
      being shot? A. Both.

      In further conversation, Marshall disclosed to Johnson that he

(Marshall) came up with the idea to rob Versypt because “some [tenants]

pay with cash.”     Marshall also told Johnson that “the robbery went

wrong” in that “[t]he landlord got shot.” According to Johnson, Marshall

described the shooting in the following terms:

      All [Marshall] said was it was real—the shot was loud. It was
      loud in the hallway, and that kind of like froze him up, and
      after that he ran out the back to get away from the scene.
      He came back around, knocking on the front door, but he
      was whispering a little bit because he didn’t want nobody to
      know he was in the hallway.

      The Iowa City police had made no effort to have either Johnson or

Marshall placed in segregation.    Detective Smithey also denied asking

Johnson to try to obtain more information or indeed any information

from Marshall regarding the killing of Versypt.      Detective Clarahan

likewise testified that she never asked Johnson to obtain information

from Marshall, nor did she ever hear anyone else from the State ask

Johnson to get information from Marshall.
                                    78

      B. Freeman. Freeman was also housed in the same cell block at

the Muscatine County Jail as Marshall for a time period in 2011. At one

point, while Freeman was helping Marshall draft a motion for

appointment of new counsel, Marshall spoke with Freeman about the

reasons why he (Marshall) was in jail. Marshall provided Freeman with

this version of what had happened on October 8, 2009:

      [Marshall] went to rob him. [Versypt] grabbed for the gun.
      The gun went off, shot him in the hand, shot him in the
      head. He fell in the door or . . . on the ground in the
      doorway . . . and [Marshall] wiped the gun off the front of his
      jacket and he took off.

Marshall told Freeman that no one else was involved in the attempted

robbery and fatal shooting and that Thompson was “innocent.”

      Marshall also explained that he wanted to get his charges reduced

from murder to manslaughter.        He thus discussed a scheme with

Freeman under which Freeman would tell his attorney that Marshall had

confessed to an accidental shooting. Marshall wrote out on a yellow pad

what he wanted Freeman and another inmate—Martin—to say.

      C. Martin. This brings us to Martin. In November 2010, Martin

was arrested on federal charges for conspiracy to distribute cocaine and

a firearms violation. He pled guilty, and his plea agreement included a

cooperation agreement with the federal government in which he agreed to

be interviewed by law enforcement and provide truthful information.

Martin understood that if he provided substantial assistance in another

criminal case to the government and the United States Attorney’s Office

filed a motion, the federal district court could reduce his sentence. In

fact, when Martin was sentenced on his federal charges in March 2012,

Martin received a large reduction in his sentence after testifying against

his cousin, a codefendant in his case.
                                         79

       Although Martin had a cooperation agreement, his discussions

with the Iowa City police before October 2011 related to other matters

and not the Versypt killing.        On cross-examination, Detective Smithey

conceded he “may have asked [Martin] if he had any knowledge of it . . .

but it would have been just a simple, do you know any information about

this?” At this point, Martin’s answer obviously would have been no. 4

       Between his arrest in November 2010 and his sentencing in March

2012, Martin was also being held at the Muscatine County Jail. Martin

previously knew Marshall from the Broadway neighborhood, yet had not

seen him since 2009. In August 2011, Martin ran into Marshall when he

was moved into Marshall’s sixteen-man pod. There is no evidence that

the State deliberately placed the men together or that Martin sought out

Marshall’s pod.

       In their initial conversations, Marshall told Martin that he was in

jail for the murder of Versypt but denied having anything to do with it.

Martin in turn told Marshall what his federal charges were and that he

was testifying against one of his codefendants. In other words, Marshall

knew that Martin was a “snitch.”              In fact, Marshall intended to use

Martin for that purpose.

       As time passed, Marshall stopped claiming that he had nothing to

do with Versypt’s death. Instead, Marshall related to Martin a different

story—that       Versypt   had    startled     Marshall,   Marshall’s     gun    had

accidentally gone off, and then Marshall had wiped the gun off and run

away. As Martin testified,

       4Martin  himself did not recall ever meeting Detective Smithey prior to October
2011. Regardless, Detective Smithey’s testimony that he “may have” asked Martin in
passing about the Versypt killing does not demonstrate that Detective Smithey asked
Martin to gather information on that killing, let alone that Detective Smithey asked
Martin to get information on Marshall.
                                   80
            Q. [D]id he tell you what happened when he went out
      to sell the gun?      A. He said he went downstairs and
      somebody came up behind him saying something, coming,
      approaching him, and he got scared and he turned around
      and pulled the gun from his waistband.

             Q. Did he tell you what he did with the gun? A. He
      said it all happened so quick, you know. The gun went off
      and he dropped it and picked it back up and wiped it off and
      dropped it again and ran.

      Marshall also told Martin he was trying to get his charge reduced

to manslaughter and asked Martin for information on the legal definition

of manslaughter as well as armed robbery.            At this point, Martin

encouraged Marshall to write his story down, i.e., to “use [Martin] as a

jailhouse snitch” so Martin could “get [Marshall’s] story out and it might

help both of [them].” Marshall did his writing on a legal pad provided by

Marshall’s attorney. Martin was not present when Marshall wrote out

his account and never told Marshall what to write.

      In October 2011, Martin was telephoning with his own attorney at

the Muscatine County Jail and took Marshall’s handwritten story with

him. It turned out that Detective Smithey was there that day as well on

another matter.   Neither Martin nor Detective Smithey knew the other

was going to be present. When Detective Smithey came into the room,

Martin showed him the legal pad and let him scan it but didn’t let him

keep it. Detective Smithey then obtained a search warrant for Marshall’s

cell. Marshall’s handwritten story, by then torn into pieces that had to

be reassembled, was recovered from Marshall’s jail cell. It was identified

by both Freeman and Martin and used against Marshall at trial.

      The majority says it is a “remarkable coinciden[ce]” that Detective

Smithey was at the jail the day that Martin was talking on the phone

with his attorney.   I do not find this remarkable.     In 2011, Detective

Smithey had been reassigned to the Johnson County Drug Task Force
                                     81

and thus had numerous other reasons to be at the jail. Here is Detective

Smithey’s testimony that the majority finds unbelievable and that I do

not:

               Q. How did it come about that you interviewed him
       that day? A. I had just finished having a conversation with
       someone else there at the jail. There are two areas where
       these conversations typically take place. One is the library.
       It’s a fairly sizable room with law books, and I don’t know if
       it’s technically a law library there or not, but there’s fairly—
       it’s where most of the meetings take place because there are
       multiple tables in it where five, six, ten people could
       probably sit. And then there’s another room that is between
       the library and the door that is used to exit the secure area
       of the facility. As I was leaving the library area, I saw
       Antonio Martin sitting alone inside that other much smaller
       room. It’s a room that four people would be uncomfortable
       being in. It’s tight. He was alone in that room. And I
       confirmed with jail staff that it was indeed Mr. Martin in the
       room.
             Q. And what did you do when you saw Mr. Martin?
       A. I asked the jail staff if they’d allow[] me in to speak with
       him, and they did. I went into the room, and he was on the
       phone with his attorney at the time. I identified myself to
       her. I knew her from other cases that I was working, and
       they allowed me to sit in and ask a few questions of Mr.
       Martin.
             Q. While you were sitting in with Mr. Martin, did Mr.
       Martin show you anything? A. He did.
             Q. And could you just generally describe what he
       showed you. A. Mr. Martin showed me a yellow legal pad.
       That legal pad had—it wasn’t completely full. It had four
       pages. The first four pages had writing on them. The others
       were blank.
       The district court found that Martin “collected information prior to

and without being approached by the police.”         Unlike the majority, I

would not disbelieve Detective Smithey but would rely on the trial judge’s

evaluation of what happened here.
                                    82

      D. The District Court’s Ruling.      The district court overruled

Marshall’s motion to suppress the testimony of Freeman, Martin, and

Johnson on the following grounds:

      I have had a chance to review the standard, and I’m going to
      overrule the motion to suppress and allow the witnesses to
      testify. The case law suggests that an informant becomes a
      government agent for purposes of the test only when the
      informant has been instructed by the police to get
      information about a particular defendant. The defendant
      must demonstrate that the police and their informant took
      some action beyond merely listening that was designed
      deliberately to elicit incriminating remarks.

            ....

            . . . The primary—the cases indicate that the primary
      concern of those decisions is secret interrogation by
      investigatory techniques that are the equivalent of direct
      police interrogation. The Sixth Amendment is not violated,
      however, whenever, by luck or happenstance, the State
      obtains incriminating statements. I think this case presents
      just the sort of luck or happenstance that resulted in these
      gentlemen coming forward and providing information to the
      State based upon what they alleged to have been statements
      made by Mr. Marshall.

      I think this analysis succinctly summarizes why there was no

Sixth Amendment violation here.
      III. Marshall’s Sixth Amendment Right to Counsel Was Not
Violated Because Martin Was Not a Government Agent When He
Spoke to Marshall.

      In Massiah, the United States Supreme Court held that a

defendant

      was denied the basic protections of [the Sixth Amendment]
      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, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250. Thus, a Massiah

violation requires findings that the informant was a government “agent”

and “had deliberately elicited” statements from the defendant. Id. Both
                                   83

of those elements are simply absent here.       I will start with agency.

Marshall bears the burden of proof in establishing agency. See Moore v.

United States, 178 F.3d 994, 997, 999 (8th Cir. 1999); Lightbourne v.

Dugger, 829 F.2d 1012, 1020 (11th Cir. 1987).

      I agree with the essence of the State’s position: Without some

direction or instruction from the government, an informant does not

become a government agent for Massiah purposes. The most one can

say here is that Martin had entered into a plea agreement on federal

charges wherein he agreed to cooperate with the government in the hope

of receiving a sentence reduction and that Martin and Marshall ended up

in the same jail pod.   These routine circumstances fall well short of

establishing agency.

      It is important to note what this case does not involve. There is no

evidence that Martin was asked to contact Marshall or engage him in

conversation. There is no evidence that any person with knowledge of

Martin’s status placed him in the same unit with Marshall (or even knew

they were going to be together). There is also no evidence that Martin

sought out Marshall.

      Since Massiah, three other Supreme Court decisions have

specifically addressed the government use of informants to allegedly

circumvent the Sixth Amendment right to counsel.        See Kuhlmann v.

Wilson, 477 U.S. 436, 456, 106 S. Ct. 2616, 2628, 91 L. Ed. 2d 364,

382–83 (1986); Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 484,

88 L. Ed. 2d 481, 492–93 (1985); United States v. Henry, 447 U.S. 264,

269, 100 S. Ct. 2183, 2186, 65 L. Ed. 2d 115, 121 (1980).

      No one disputes that Henry is the high-water mark for the

Supreme Court’s recognition of claims of Massiah violations. In Henry,

FBI agents reached out to Nichols, a paid informant, who was being held
                                    84

in the same jail as Henry. Henry, 447 U.S. at 266, 100 S. Ct. at 2184,

65 L. Ed. 2d at 119. Henry had been indicted for armed robbery, and the

facts were not clear whether the government contacted Nichols for

information about the robbery more generally or asked for information

specifically about Henry. Id. Nichols told the agents that he was on the

same cellblock as several federal prisoners including Henry, and “[t]he

agent told him to be alert to any statements made by the federal

prisoners, but not to initiate any conversation with or question Henry

regarding the bank robbery.” Id. at 266, 100 S. Ct. at 2184–85, 65 L. Ed.

2d at 119. After Nichols’ release from jail, the same FBI agent contacted

him, and Nichols gave the agent information that Henry had revealed to

Nichols in conversation. Id. at 266, 100 S. Ct. at 2185, 65 L. Ed. 2d at

119.   The government paid Nichols for the information.       Id.   Nichols

testified at Henry’s trial, and Henry was convicted. Id. at 267, 100 S. Ct.

at 2185, 65 L. Ed. 2d at 120.

       Nichols had been a paid Government informant for more
       than a year; moreover, the FBI agent was aware that Nichols
       had access to Henry and would be able to engage him in
       conversations without arousing Henry’s suspicion.      The
       arrangement between Nichols and the agent was on a
       contingent-fee basis; Nichols was to be paid only if he
       produced useful information.

Id. at 270, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122.

       In its opinion, the Court concluded, “By intentionally creating a

situation likely to induce Henry to make incriminating statements

without the assistance of counsel, the Government violated Henry’s Sixth

Amendment right to counsel.” Id. at 274, 100 S. Ct. at 2189, 65 L. Ed.

2d at 125. The Court added, “Even if the agent’s statement that he did

not intend that Nichols would take affirmative steps to secure

incriminating information is accepted, he must have known that such
                                      85

propinquity likely would lead to that result.” Id. at 271, 100 S. Ct. at

2187, 65 L. Ed. 2d at 122.      Otherwise stated, the Court found that

Nichols was “acting by prearrangement as a Government agent.” Id. at

273, 100 S. Ct. at 2188, 65 L. Ed. 2d at 124.

       We applied Henry not long after it was decided in State v. Nelson,

325 N.W.2d 118, 120 (Iowa 1982). In that case, Jackson, an informant,

passed a note to a jailer stating that he had information regarding

Nelson’s case that he wanted to discuss with law enforcement.        Id. at

119.    The informant met with a deputy sheriff and passed along

incriminating statements made by Nelson in jail. Id. The deputy sheriff

told the informant that he would put him in touch with the officers

investigating Nelson’s case.    Id.    The deputy “made no promise to

Jackson in return for the information,” and “he did not direct Jackson to

endeavor to gather any further information.”     Id. Rather, “[h]e merely

had Jackson return to his cell to continue in the same capacity as an

inmate.”   Id.   The deputy “obviously knew further conversations were

likely.” Id. Still we reasoned that “[t]he crux is that the State had not

‘put him [the informant] up to it.’ ” Id. After this first meeting, Jackson

later met with law enforcement again and agreed to work for the state on

other cases. Id.

       We affirmed the trial court’s ruling that only statements made by

Nelson after Jackson’s second meeting with law enforcement should be

suppressed whereas statements made after the first meeting were

admissible. Id. at 120. With respect to the first meeting, we noted both

that the state had not directed Jackson to gather more information and

that Jackson had no agreement with the state that he would receive

payment or other favorable treatment for providing the information. Id.

at 119–20. “In summary we do not believe the statements which were
                                            86

the subject of Jackson’s testimony were gathered by him at the time he

was working for the State.” Id.

       This case falls short of the circumstances warranting suppression

that were described in either Henry or Nelson. At most, prior to Martin’s

encounter with Marshall, Detective Smithey might have asked Martin a

simple question as to whether Martin had any information about the

Versypt killing.      Again, there is no evidence the Iowa City Police

Department knew Martin was going to be housed with Marshall, made

arrangements for this to happen, told Martin to listen for statements by

Marshall, or even expressed particular interest in the Versypt killing. 5

       The majority places great weight, apparently dispositive weight,

upon Martin’s federal cooperation agreement.              Although Martin’s plea

bargain is not in the record, there is no indication that it included

anything      other   than   a   typical,    plain   vanilla   federal   cooperation

agreement. Under such an agreement, the defendant agrees to meet with

the government and provide truthful information about criminal activity

of which he or she is aware, and the government agrees to move for a

downward sentencing departure if the defendant ends up providing

substantial assistance to the government.              See, e.g., United States v.
Cimino, 381 F.3d 124, 125 n.1 (2d Cir. 2004); United States v. Tejada,

773 F. Supp. 622, 624 (S.D.N.Y. 1991).




       5The  majority points to testimony given by Detective Smithey on cross-
examination that it would “[p]robably” be “reasonable to assume” that after the July
2011 meeting, Johnson was “going to tell other snitches” that the government wants to
know about the Versypt killing and the people the government was interested in.
However, Martin denied discussing Marshall with Johnson, and Johnson likewise
denied discussing Marshall with Martin. Moreover, the three individuals who were
persons of interest in the Versypt killing—Marshall, Thompson, and White—were
already widely known to the general public.
                                    87

      So, the question becomes, in effect, if an individual enters into a

standard   cooperation    agreement,   does    that   individual   become   a

government agent with respect to any matters in which the government

happens to have interest?

      A number of federal circuits would say no under their bright-line

approach. They hold that a cooperation agreement is not enough unless

the informant is “instructed by the police to get information about the

particular defendant.” United States v. Whitten, 610 F.3d 168, 193 (2d

Cir. 2010) (quoting United States v. Birbal, 113 F.3d 342, 346 (2d Cir.

1997)); see United States v. LaBare, 191 F.3d 60, 65–66 (1st Cir. 1999);

Moore, 178 F.3d at 999. Clearly that did not occur here.

      The majority is correct that many circuits do not follow the bright-

line approach.     But when one reviews the facts and holdings of these

cases, none of them are helpful to Marshall.

      Thus, the Third Circuit has found that a combination of an

informant’s “tacit agreement with the government” to receive potentially

favorable sentencing treatment and the government’s deliberate placing

of the informant in a cell with another inmate to obtain information from

the inmate could amount to a Massiah violation. United States v. Brink,

39 F.3d 419, 424 (3d Cir. 1994). The Fourth Circuit requires that “the

prosecutors have intentionally placed the informant in the jail cell with

instructions to elicit a confession, or . . . there has been an agreement

promising consideration for a confession from a particular defendant.”

United States v. McFadden, 187 F. App’x 290, 294 (4th Cir. 2006). The

Fifth Circuit has approved a test for agency under which the informant

must have “acted pursuant to instructions from the State, or otherwise

submitted to the State’s control.” Creel v. Johnson, 162 F.3d 385, 393

(5th Cir. 1998).    Similarly, the Seventh Circuit has refused to find a
                                    88

Massiah violation when “[t]he evidence demonstrated no government

control over [the informant’s] actions; most importantly, there was no

control over [the informant’s] decision to arrange a meeting with [the

defendant].” United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995). The

Ninth Circuit has held that a Massiah violation can occur when the

informant is intentionally “put back in the cell with [the defendant]” after

meeting with law enforcement and indicating a “willingness to cooperate

with the prosecution” even without a promise of leniency. Randolph v.

California, 380 F.3d 1133, 1146–47 (9th Cir. 2004). Meanwhile, the D.C.

Circuit rejected a Sixth Amendment claim when the informant “was

acting as an entrepreneur” and the government had not encouraged or

instructed him to speak with the defendant in jail.          United States v.

Watson, 894 F.2d 1345, 1348 (D.C. Cir. 1990).

      As can be seen, the nonbright-line circuits are not uniform in their

approaches. However, under any of these standards Marshall has failed

to establish that Martin was acting as a government agent. Martin had

received no instructions from the State, and his encounters with

Marshall   in   the   same   segregation   unit   of   the   jail   were   pure

happenstance.

      The majority attempts to use United States v. York, to support its

“informant at large” theory.   See York, 933 F.2d 1343 (7th Cir. 1991),

overruled on other grounds by Wilson v. Williams, 182 F.3d 562, 567 (7th

Cir. 1999).     The case is easily distinguishable.      In that case, the

informant had a longstanding relationship with the FBI and was

reporting to the FBI on a weekly basis and making monitored phone calls

on the FBI’s behalf. Id. at 1357–58. After giving the information to the

FBI that was used against the defendant, he received $5000 from the

FBI. Id. at 1358. Additionally, the FBI agent “told [the informant] the
                                     89

type of information he was interested in receiving; that statement was

tantamount to an invitation to [the informant] to go out and look for that

type of information.” Id. In dicta, the Seventh Circuit concluded that an

agency relationship existed between the FBI and the informant, although

it ultimately found there had been no deliberate elicitation and therefore

no Massiah violation. Id. at 1358–60.

       The Seventh Circuit’s test for agency was based on traditional

common law agency principles, and under the egregious facts of York the

Seventh Circuit said that the informant served as an agent subject to the

government’s control. See id. at 1357–58. However, it is noteworthy that

the court today disclaims a common law agency test.                   It is also

noteworthy that more recently, the Seventh Circuit declined to find

agency when the informant discussed with the government his plan to

meet with the defendant, but there was no government control over the

informant’s actions or his decision to arrange a meeting with the

defendant. See Li, 55 F.3d at 328.

       Another informant-at-large case, Commonwealth v. Moose, is also

factually distinguishable from what occurred here. See 602 A.2d 1265

(Pa. 1992). In that case, the informant had been intentionally “kept in

the county jail for three years because he was supplying the district

attorney’s office with information about various inmates.” Id. at 1270.

In fact, this informant “was called the ‘monsignor’ because so many

inmates allegedly confessed to him.”      Id.     The Pennsylvania Supreme

Court concluded that even though the informant “was not planted for the

purpose of gaining information from a targeted defendant,” “[t]he fact

that   the   Commonwealth    intentionally      left   him   there   to   harvest

information from anyone charged with a crime and awaiting trial is the
                                     90

villainy.”   Id.   Again, these extreme facts that supported a finding of

agency bear no resemblance to the record here.

       The majority also cites Ayers v. Hudson, 623 F.3d 301, 312 (6th

Cir. 2010), to support its view that “a wink and a nod” can establish

agency. The Sixth Circuit disavows the bright-line approach. Id. at 311.

(“We agree with those courts that do not limit agency in the Massiah

context to cases where the State gave the informant instructions to

obtain evidence from a defendant.”). Yet once again, the facts of the case

cited by the majority are quite different from here.           In Ayers, the

defendant confessed to an informant sharing his jail pod that he had

committed a murder. Id. at 305. The informant contacted the police and

met with detectives to relay this information.     Id.    At that time, the

informant could not provide the detectives with information about the

murder weapon or money stolen from the victim.           Id.   The detectives’

report specifically noted this information was missing. Id. The detectives

returned the informant to the jail pod and “within an hour or so”

thereafter, the informant directly questioned the defendant regarding the

murder weapon and the stolen money. Id. at 305–06. The Sixth Circuit

suppressed the statements regarding the weapon and the money that the

informant had obtained from the defendant within an hour after meeting

with the detectives. Id. at 310.

       By contrast, in the present case, the State did not intentionally

place Martin in proximity to Marshall so he could procure additional

information.       Moreover, the record in Ayers strongly suggested the

informant had been given specific guidance by the police, considering

that he immediately sought out the two pieces of information the

detectives wanted.      See id. at 305.   No such guidance was given to

Martin.
                                   91

      The only appellate decision I am aware of that might help Marshall

establish agency under the facts of this case comes from the

Massachusetts Supreme Judicial Court. See Commonwealth v. Murphy,

862 N.E.2d 30 (Mass. 2007).       Murphy was found guilty of murder

following a trial at which an informant testified to statements Murphy

made in jail.    Id. at 34–35.   The informant had entered into a plea

agreement with the United States Attorney’s Office and subsequently met

Murphy in jail. Id. at 34. Under the terms of the plea agreement, “if the

informant provided ‘substantial assistance’ to the government, in the

discretion of the United States Attorney’s office,” the informant could

potentially receive a lesser sentence. Id. at 36. The informant did not

have any agreement with any Massachusetts authorities. Id. at 35. The

informant did two favors for Murphy to lure him into a false sense of

trust, before asking Murphy what he did about his anger toward the

victim. Id. at 44–45. The court concluded that the informant had acted

as a government agent and found a violation of both the Sixth

Amendment and its counterpart in the Massachusetts Constitution. Id.

at 46. The court explained,

      [W]here the government has entered into an “articulated
      agreement containing a specific benefit,” or promise thereof,
      the recipient inmate is a government agent for purposes of
      the Sixth Amendment to the United States Constitution and
      art. 12 of the Massachusetts Declaration of Rights even if the
      inmate is not directed to target a specific individual.

Id. at 33 (quoting Commonwealth v. Reynolds, 708 N.E.2d 658, 664

(Mass. 1999)).

      I do not agree with this decision, which essentially holds that a

generic cooperation agreement is enough to confer government agent

status on an individual.   See Whitten, 610 F.3d at 193 (“More than a

cooperation agreement is required to make an informant a government
                                     92

agent with regard to a particular defendant.”). Generally, of course, the

mere existence of an agreement containing a quid pro quo does not make

one party the agent of the other.         Contract law teaches us that all

enforceable agreements have a quid pro quo, but that does not mean the

parties become agents of each other. See Restatement (Third) of Agency

§ 1.01 cmt. c, at 19 (Am. Law Inst. 2006) (“Not all relationships in which

one person provides services to another satisfy the definition of agency.”).

There must be some element of control, based on an actual instruction to

target a specific defendant, as several circuits hold, or some other form of

supervision, such as intentionally placing the informant directly with the

defendant in order to obtain information from the defendant.          Even

foreseeability that the informant would engage with the defendant, which

we do not have here, was not enough according to our Nelson decision.

See Nelson, 325 N.W.2d at 119–20 (finding the informant was not

“working for the State” because the State “had not ‘put him up to it’ ”

even though the State “obviously knew further conversations were

likely”).   Here there is simply no indication that Detective Smithey

directed or controlled Martin’s activities.

       My colleagues do not approve of a direction-or-control requirement.

But the law as established by the United States Supreme Court requires

that the informant be a government “agent.” See Massiah, 377 U.S. at

206, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250. And to be an agent one

must agree to act on a principal’s behalf and be subject to the principal’s

control. See Restatement (Third) of Agency § 1.01, at 17. So, a control

element focuses the inquiry where it should be focused.

       By resorting to circular reasoning, the court leaves a hole in its

analysis. The majority states, “[A] court must determine—under all the

facts and circumstances—whether the relationship between the state and
                                    93

an informant is such that the state has violated its affirmative duty . . .

to protect the Sixth Amendment rights of defendants.”        This circular

standard is no standard at all. Rather, it simply restates the ultimate

issue—i.e., whether the Sixth Amendment has been violated.

      Given this circularity, we need to consider what as a practical

matter the court relies on to find agency here. As in Murphy, it is merely

the existence of a generic cooperation agreement between Martin and the

federal government.

      Given the nature of federal sentencing, federal defendants are often

motivated to inform on other inmates with or without a cooperation

agreement.      See 18 U.S.C. § 3553(e) (2012) (“Upon motion of the

Government, the court shall have the authority to impose a sentence

below a level established by statute as a minimum sentence so as to

reflect a defendant’s substantial assistance in the investigation or

prosecution of another person who has committed an offense”).

      “Entrepreneurs and volunteers are not government agents.” United

States v. Johnson, 338 F.3d 918, 924 (8th Cir. 2003). Marshall fell prey

to the self-interest of other inmates, not government interference with his

right to counsel. This is clearly not a case where the government acted
“to circumvent the right to the assistance of counsel.” Moulton, 474 U.S.

at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496. Because Martin was not

acting as a government agent, Marshall’s Sixth Amendment rights were

not violated.

     IV. Martin     Did   Not   Deliberately   Elicit   Statements   from
Marshall.

      Marshall’s Massiah claim also fails because Martin did not

deliberately elicit statements from him.       The Supreme Court has

explained the reasoning behind this prong of the inquiry:
                                    94
      [T]he primary concern of the Massiah line of decisions is
      secret interrogation by investigatory techniques that are the
      equivalent of direct police interrogation. Since “the Sixth
      Amendment is not violated whenever—by luck or
      happenstance—the State obtains incriminating statements
      from the accused after the right to counsel has attached,” a
      defendant does not make out a violation of that right simply
      by showing that an informant, either through prior
      arrangement or voluntarily, reported his incriminating
      statements to the police.        Rather, the defendant must
      demonstrate that the police and their informant took some
      action, beyond merely listening, that was designed
      deliberately to elicit incriminating remarks.

Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384–85

(quoting Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at

496). It should be noted that the burden of proving deliberate elicitation,

like agency, rests with the defendant.    See id. (“[T]he defendant must

demonstrate . . . .”).

      Justice Powell’s concurrence in Henry makes clear that “the Sixth

Amendment is not violated when a passive listening device collects, but

does not induce, incriminating comments” and that “the mere presence

of   jailhouse   informant   who   had   been   instructed   to   overhear

conversations and to engage a criminal defendant in some conversations

would not necessarily be unconstitutional.” Henry, 447 U.S. at 276, 100

S. Ct. at 2190, 65 L. Ed. 2d at 126 (Powell, J., concurring). It is Justice

Powell’s concurrence that the Supreme Court cited and relied on in

Kuhlmann and Moulton when it clarified the deliberate-elicitation

element.     See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2629–30, 91

L. Ed. 2d at 384; Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed.

2d at 496.

      Before I get to Martin, I would like to briefly comment on Johnson.

The court concedes only grudgingly that Johnson did not deliberately

elicit incriminating information from Marshall. In fact, the only question
                                     95

that Johnson asked Marshall was the classic icebreaker: What are you in

for? As Johnson testified, “I knew [Marshall] so I asked him what was he

in there for.”      Kuhlmann makes clear that establishing deliberate

elicitation requires more. See 477 U.S. at 459, 106 S. Ct. at 2629–30, 91

L. Ed. 2d at 384 (condemning techniques that are “the equivalent of

direct police interrogation”).   Asking one question of such a generic

nature does not amount to the functional equivalent of interrogation.

See United States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993) (finding that a

witness who ran into the defendant unexpectedly in jail and asked the

defendant why he was there did not try to solicit information). The trial

testimony reveals that Marshall initiated the more detailed discussions

about the shooting of Versypt. As Johnson testified,

            Q. . . . . And he just happened to start suddenly
      talking to you about his case? A. He didn’t just start talking
      to me over just a couple days. He started talking to me, yes.

             ....

            Q. And only when you’re alone in segregation does he
      suddenly open up to you, correct? A. Yeah. He told me
      about it a little bit, yeah.

There is no evidence that Johnson asked Marshall any additional
questions or even made suggestive comments when Marshall was

describing to him the circumstances of Versypt’s death.

      This should end any need to discuss Johnson further, but the

court goes on.   In particular, it indicates that Marshall’s trial counsel

may have been ineffective, that counsel’s supposed failure to cross-

examine Johnson on the subject of elicitation was “remarkable,” and that

counsel   may    not   have   been   aware   of   the   deliberate-elicitation

requirement. Although I agree with the court’s ultimate resolution of the

Massiah claim regarding Johnson, these innuendoes are unfair.             The
                                           96

questions and answers quoted above come from defense counsel’s cross-

examination of Johnson. The deliberate-elicitation requirement had just

been discussed at some length when the court ruled on the motion to

suppress the previous afternoon. 6

       Courts addressing Massiah claims with facts like these have found

that no deliberate elicitation occurred.              See, e.g., United States v.

Jacques, 684 F.3d 324, 330–32 (2d Cir. 2012) (holding that no violation

of the right to counsel occurred when a friend of the defendant

cooperated with the FBI in speaking to the defendant through a series of

monitored phone calls and the friend asked no more than a few

questions that were not of “a probing nature”); Whitten, 610 F.3d at 192–

94 (denying Sixth Amendment claim when the defendant volunteered

incriminating information during conversation that the defendant


       6Obviously,  cross-examination is more an art than a science. Defense lawyers
need to weigh the downside of bringing out or reinforcing that which harms their clients
against the upside of bringing out or reinforcing that which helps their clients. We were
not on the scene making these difficult decisions in real time.
       For related reasons, I do not see the relevance of United States v. Pannell, 510 F.
Supp. 2d 185 (E.D.N.Y. 2007). In that case, the district court made a specific finding
based on its own observations that the informant was not credible:
               Miller testified that he never asked Pannell any questions about
       his case and that Pannell volunteered the information during lengthy
       conversations about general, everyday matters.            Having carefully
       observed Miller, his testimony that Pannell volunteered detailed
       incriminating information—as memorialized in Miller’s notes—without
       any prompting or encouragement from Miller cannot be credited . . . .
       Miller was evasive and gave conclusory answers when questioned as to
       how Pannell had provided such painstakingly detailed information about
       his involvement in the post office robbery, repeatedly saying, “we
       conversated.” Indeed, Miller would not acknowledge that, in the course
       of their conversations, even on everyday matters, he had ever asked
       Pannell a single question. I therefore discredit Miller’s testimony that he
       never asked Pannell any questions about his case nor encouraged him to
       speak of it.
Id. at 192. In contrast, the district court here made no such finding. And unlike the
trial judge, we did not have the opportunity to see and hear the witnesses.
                                        97

initiated); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 895–96 (3d

Cir. 1999) (finding no deliberate elicitation when the defendant had

reached out to informant and the informant had largely just listened,

asking only “a few clarifying questions”); Lightbourne, 829 F.2d at 1021

(finding that an alleged Sixth Amendment violation was not supported by

sufficient evidence where the informant “took no actions to stimulate the

incriminating remarks”); Wallace v. Price, 265 F. Supp. 2d 545, 569

(W.D. Pa. 2003) (noting there was “no evidence that [the informant]

initiated   the   conversation   with    [the   defendant]”   and   upholding

magistrate’s ruling that the defendant had failed to direct the court to

any evidence that the informant deliberately elicited statements).

      Turning to Martin, the court today says “there is no doubt that he

deliberately elicited incriminating statements from Marshall.” I disagree.

Events happened in the following sequence.            First, Marshall denied

involvement in the Versypt killing to Martin. Then, over time, Marshall

“started switching his story up,” according to Martin.         Marshall told

Martin he had a gun with which he shot Versypt when Versypt startled

him. Marshall added that he had wiped off the gun and run away. At

that point, Marshall asked Martin for advice on manslaughter. Martin

researched manslaughter for Marshall and reported back. Only then did

Martin recommend that Marshall write down his “side of the story . . . to

get a lesser charge.” Marshall provided his written statement with the

mutual understanding and plan that this statement would be passed

along to law enforcement:

             Q. When you were speaking with your attorney and to
      Officer Smithey, did you think that you were helping Justin
      Marshall? A. Yes.
           Q. Did you believe that you were doing what Mr.
      Marshall had asked you to do? A. Yes.
                                    98

      Viewing the entire sequence of events, Martin did not engage in

deliberate elicitation.   Marshall voluntarily told Martin what had

happened and asked for Martin’s legal advice on getting a lesser charge.

Thereupon Martin advised Marshall to write down his story so Martin

could deliver it to Martin’s attorney and from there to law enforcement.

This was poor advice, but it wasn’t deliberate elicitation. This case to

some extent resembles United States v. Booker, where the defendant

“voluntarily approached Blickley and sought his assistance researching

certain legal issues relating to this case.” No. 05-313 (JBS), 2006 WL

242509, at *8 (D.N.J. Feb. 2, 2006). As the court described in that case:

      [T]he entire purpose of Booker’s request was to enlist
      Blickley’s help. . . . . [T]hat task necessarily required Booker
      to furnish Blickley with details about his case. Moreover,
      Blickley actually furnished advice to Booker, based on
      research, regarding suppression of evidence in this case and
      legal issues in other matters, and Blickley drafted a
      memorandum for Booker that led to the dismissal of
      unrelated bank robbery charges against Booker under the
      Speedy Trial Act, according to Blickley’s testimony. It is
      understandable that a lot of talking transpired between
      Blickley and Booker in January given the range of legal
      assistance Booker was seeking from Blickley. That Blickley
      may have asked certain clarifying questions of Booker during
      their many conversations, or that Blickley told Booker to be
      completely truthful, does not alter the voluntariness of
      Booker’s disclosures.

Id.

      Moreover, in this case, Marshall knew Martin would be passing

along his written statement to law enforcement. Thus, concerns about

an “undisclosed undercover informant” and “surreptitious interrogations”

were simply absent here. Henry, 447 U.S. at 273, 100 S. Ct. at 2188, 65

L. Ed. 2d at 123–24; Massiah, 377 U.S. at 206, 84 S. Ct. at 1203, 88

L. Ed. at 250. Again, as the Supreme Court put it in Kuhlmann, “[T]he

primary concern of the Massiah line of decisions is secret interrogation
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by investigatory techniques that are the equivalent of direct police

interrogation.” Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed.

2d at 384. In Kuhlmann, an undisclosed informant commented to the

defendant that his initial version of what happened “didn’t too sound too

good”; a few days later, the defendant made incriminating statements.

Id. at 439–40, 106 S. Ct. at 2619–20, 91 L. Ed. 2d at 372.             Yet,

considering the entire “interaction,” the Court found that no deliberate

elicitation had occurred. Id. at 460, 106 S. Ct. at 2630, 91 L. Ed. 2d at

385. Looking at the entire interaction here, I think this is an easier case

than Kuhlmann: There was nothing “secret” here. Martin was open about

what he was doing and advised Marshall to write down his story only

after Marshall had given Martin the same story orally and asked for

Martin’s legal advice.

      V. Conclusion.

      For the reasons stated, I would affirm Marshall’s conviction and

the well-reasoned suppression ruling of the district court.

      Waterman and Zager, JJ., join this concurrence in part and

dissent in part.
