Jailhouse Informants

Jailhouse Informants

Massiah involved an indicted defendant on bail who talked with a cooperating co-defendant in a wired car. United States v. Henry carries the same rule into a jail, where the government's messenger is another prisoner and the defendant is confined alongside the messenger. The decision extends the Massiah rule to informants who are not co-defendants, and it supplies a working definition of deliberate elicitation that Kuhlmann v. Wilson later tests.¹ Henry's facts come first, because the Court's reasoning is built from them. The three features that made the informant's conduct count as elicitation then take the rest of this part in turn.

Billy Gale Henry was indicted for armed robbery of a bank branch in Norfolk, Virginia, held in the Norfolk city jail, and given appointed counsel.² Nichols, an inmate who had been engaged as a paid FBI informant, told his handler that he was housed in the same cellblock as Henry.³ The agent told Nichols to be alert to statements by the federal prisoners but expressly instructed him not to initiate any conversation with Henry and not to question Henry about the robbery.⁴ The payment arrangement was contingent: Nichols would be paid only if he produced useful information.⁵ After Nichols was released, he reported that he and Henry had talked and that Henry had described the robbery, and Nichols was paid and later testified to those conversations at Henry's trial.⁶

The Court held that these facts amounted to deliberate elicitation within the meaning of Massiah, and it summed up the violation this way: “[b]y 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.”⁷ The reason lies in the obligation the Sixth Amendment places on the State once formal charges exist, which is to refrain from acting in a way that circumvents the accused's right to rely on counsel as a medium between the accused and the government.⁸ If that obligation bound only uniformed officers, the government could assign the same task to a private person whom it pays and instructs, and the indicted defendant would suffer the very harm Massiah addresses, an unadvised conversation about the case that is later used at trial. The pay arrangement sharpens the problem, since an informant who collects only for useful information has an incentive to steer the conversation toward the crime.⁹ The government therefore cannot avoid its constitutional obligation by acting through an informant as its agent.¹⁰

The Court identified three factors that together supported its conclusion: Nichols was acting under instructions as a paid informant for the government, he was ostensibly no more than a fellow inmate, and Henry was in custody and under indictment when Nichols engaged him in conversation.¹¹ The next three sections regroup those factors in the order a student would use them on a fact pattern, giving the Government's rejected argument about its agent's instruction its own place.

The third question carries the most risk of error, because an instruction to stay passive sounds like a safeguard. In Henry the agent told Nichols not to start conversations or ask about the robbery, and the Court still treated Nichols's conduct as attributable to the government, because the agent must have known that Nichols's access would likely lead him to engage Henry and because Nichols in fact had conversations with Henry that produced the statements.¹² Students lose this issue when they treat an instruction to stay passive as ending the analysis, since what the informant actually did and what the agent must have expected still decide the case.

The Court's closing formulation, “likely to induce,” drew criticism that shapes the rest of this chapter. Read literally, language about creating a situation likely to induce statements would seem to reach even negligent triggering of an incriminating response, yet the majority appears to have treated Henry as a true case of deliberate elicitation, because the agent knew the informant's proximity would likely lead him to take affirmative steps.¹³ Justice Blackmun's dissent objected that the standard drained the word “deliberately” of much of its force, since foreseeability had taken the place of design.¹⁴ Justice Powell's concurrence insisted instead that the Sixth Amendment reaches only conduct amounting to the functional equivalent of interrogation.¹⁵ The two objections differ: the dissent complained that the test was too loose about the government's purpose, while the concurrence proposed a measure borrowed from interrogation law. Henry settled neither dispute, because Nichols was not a passive listener, and the Court reserved the case of an informant who is placed nearby but makes no effort to stimulate conversation about the crime, which Kuhlmann later takes up.¹⁶

The agency question separates Henry from a prison conversation that merely happens to yield a confession, because there is no Massiah violation when the person who draws out the statement is not a government agent.¹⁷

The only fact that moves the answer between the two cells is the government's arrangement with the person asking the questions, which is why the first feature of Henry, the informant as government agent, comes first.

Informant as Government Agent

The first feature of the Henry analysis asks whose conversation it really was. The Sixth Amendment restrains the government, so a talk with an indicted defendant counts as deliberate elicitation only when the person who conducted it was acting for the government, which then answers for what that person did. A cellmate, a co-defendant, or an acquaintance remains a private person until some arrangement makes his conduct the government's. The category of government agent includes police officers and FBI agents, and it also includes an informant, especially an inmate, hired by law enforcement to obtain incriminating statements from another inmate.¹⁹ Henry shows which facts move an inmate from the private category into the government's.

In United States v. Henry the Court of Appeals read the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present, and it held that conduct attributable to the Government.²⁰ The Supreme Court treated the combination of circumstances as enough to support that determination. Nichols had been a paid government informant for more than a year. His arrangement with the FBI agent was on a contingent-fee basis, so he would be paid only if he produced useful information. The agent also knew that Nichols had access to Henry and could engage him in conversation without arousing Henry's suspicion.²¹

Each of those facts answers the agency question in its own way. A year of paid service shows a standing relationship in which Nichols's usefulness to the FBI was the reason he was being paid, so what he did in the cellblock was part of an ongoing job and not a one-time favor. The contingent fee matters here for a reason distinct from the pressure it puts on the conversation: it shows that Nichols was working toward the government's result, since his own reward arrived only when the government received something it could use. The agent's awareness of Nichols's access to Henry shows that the government knew where its informant was and what that position allowed. Together those facts let a court say the conversation was the government's, because otherwise police could obtain through a paid private person the very statements they may not draw out themselves after indictment.

Agency is a threshold, and the threshold can fail. There is no Massiah violation when the person who draws out the statement is not a government agent, or when an agent who elicits a response does so exclusively for some other legitimate purpose.²² The reason lies in whom the Sixth Amendment restrains. It obliges the State not to circumvent the accused's right to rely on counsel, and a private person who talks with the accused out of curiosity or sympathy has circumvented nothing on the State's behalf. Learning of the conversation afterward does not change that. Kuhlmann v. Wilson says that a defendant does not make out a violation simply by showing that an informant, whether through prior arrangement or voluntarily, reported the defendant's statements to the police.²³ A report comes after the conversation, so it cannot be what made the conversation the government's; agency depends on what the government had arranged when the talking happened. The facts of Kuhlmann itself, in which police did place an informant in the defendant's cell, are taken up in the passive-listener section below, where the question shifts from agency to what the informant actually did.²⁴

The only fact that changes the answer between the two laundry rooms is the government's arrangement with the person asking the questions. Students lose this issue when they treat reporting alone as proof of agency, since almost every informant reports to police eventually and the question is whether the government had enlisted the informant before the conversation. Clearing the agency step does not finish the problem, because the defendant must still show that the informant was an inmate in custody facing indictment and that the government's role produced the conversation, which the next two sections address.

Custody and Concealed Identity

Two of the three circumstances the Court weighed in United States v. Henry describe the setting in which the informant worked: Nichols was ostensibly no more than a fellow inmate, and Henry was in custody and under indictment when Nichols engaged him in conversation.²⁶ The two circumstances answer different questions. The informant's disguise explains why the defendant spoke freely, and the confinement explains why a prisoner is an unusually easy person to draw out. Neither one is the constitutional trigger, which is the beginning of formal charges and the attachment of the right to counsel. Their role is to intensify a violation that the agency feature has already made attributable to the government.

Concealed identity matters because of what the accused believes about the listener. Henry was unaware that Nichols was a government informant, and he saw only another prisoner.²⁷ A person who knows he is talking to government agents chooses his words with that audience in mind, while a person who thinks he is confiding in a peer has no reason to hold back. For that reason, conversation stimulated by a fellow inmate who is acting by prearrangement as a government agent may elicit information that the accused would never intentionally reveal to persons known to be government agents.²⁸ The same point runs back to Massiah, where the Court observed that the guarantee, to have any efficacy, must reach indirect and surreptitious interrogations as well as those conducted in the jailhouse.²⁹

The disguise also removes the government's usual answer, which is that the defendant chose to talk. The right to counsel can be waived, but a waiver is a knowing choice to give up a lawyer's help, and the accused cannot make that choice about a conversation whose true audience is hidden from him. The concept of a knowing and voluntary waiver therefore does not apply to communications with an undisclosed undercover informant acting for the government.³⁰ The defendant's willingness to talk, which the government might otherwise call voluntary, is the direct product of the concealment and cannot stand in for waiver.

Custody adds a second layer. Reviewing Henry, the Court recalled its reasoning that confinement “may bring into play subtle influences that will make [an individual] particularly susceptible to the ploys of undercover Government agents,” influences that were facilitated by Nichols' “apparent status as a person sharing a common plight.”³¹ The mechanism can be rebuilt link by link. An indicted prisoner is cut off from his lawyer, from family, and from ordinary life, and he is likely to want someone to talk to about his predicament. The person physically nearest, and the one who seems to share that predicament, is the fellow inmate. Trust therefore comes cheaply to an informant who looks like another prisoner, and the defendant is least able to weigh the risk of speaking at the moment he most needs counsel's advice about what to say. In Henry itself, the cellblock neighbor drew out the account of the bank robbery that Nichols later repeated at trial.³²

Custody aggravated the facts in Henry, yet it is not a requirement of the claim. The condition that does matter is that the right to counsel has attached, which occurs once formal adversary proceedings have been initiated.³³ In Maine v. Moulton the defendant had been released on his own recognizance after arraignment, and the Court still held that the statements he made to a codefendant who was secretly a government informant were obtained in violation of the Sixth Amendment.³⁴ Henry itself supplies the matching rule, because the Court there held that one definition of deliberate elicitation applies to all cases involving undercover agents, regardless of whether the defendant is in custody.³⁵ Massiah was free on bail when his cooperating co-defendant talked with him, which teaches the same lesson. Students lose this issue when they treat custody as a required element, since the claim rests on attachment of the right and on government elicitation, and confinement only strengthens the facts.

A contrasting line, which Henry expressly left in place, concerns undercover use before charges are filed. In Hoffa v. United States the Court held that when the government uses undercover agents to obtain statements from suspects who are not in custody, no Fourth Amendment interest is involved, because the Amendment does not protect a wrongdoer's misplaced belief that a person he voluntarily confides in will not reveal it.³⁶ The Fifth Amendment is likewise not implicated by undercover agents before charges, since the potential for compulsion is absent.³⁷ Those are Fourth and Fifth Amendment claims, and Henry treated them as irrelevant to the Sixth Amendment question, which is whether the government interfered with the accused's right to counsel by deliberately eliciting statements. The Court stated that its holding did not modify United States v. White or Hoffa.³⁸ The difference follows from timing. Before charges the government is still investigating and no right to counsel has attached to be circumvented, while after charges the same secrecy defeats the accused's ability to use counsel as a buffer between himself and the State.

Between the gym and Henry's cellblock, the variable that carries the Sixth Amendment is attachment of the right to counsel. Concealed identity and confinement then determine how strongly the facts show elicitation, with Henry sitting at the far end where both are present. What remains is the question the Government pressed in Henry, which is whether an instruction to the informant to stay passive changes the analysis, taken up next.

Instructions Not to Question

Once an informant's conduct is attributable to the government and his identity is hidden, the government's remaining defense is its own paperwork, an instruction telling the informant to stay quiet. In United States v. Henry the FBI agent told Nichols to pay attention to what the federal prisoners in his cellblock said, but expressly instructed him not to initiate any conversation and not to question Henry about the bank robbery.⁴⁰ The Government argued that it could not be held responsible for Nichols's conduct, because its agent had forbidden questioning and had not intended Nichols to take affirmative steps to obtain incriminating statements.⁴¹ That argument asks whether an instruction, standing alone, is enough to break the link between the informant's conversations and the government.

The Court answered no, and the answer has two parts that work together. The first concerns what the government must have known. Even if the agent's statement that he did not intend Nichols to take affirmative steps is accepted, the agent "must have known" that putting Nichols in such close quarters with Henry likely would lead to incriminating statements.⁴² The second part concerns what Nichols actually did. By his own testimony he was not a passive listener, because he had "some conversations with Mr. Henry" in the jail, and Henry's incriminating statements were "the product of this conversation."⁴³ The Court therefore held that the Government, by intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, violated his Sixth Amendment right to counsel.⁴⁴

The reason an instruction cannot carry more weight comes from the shape of the duty the Sixth Amendment imposes. The State has an affirmative obligation not to act in a way that circumvents the protection an accused obtains by invoking the right to counsel.⁴⁵ A warning costs the government nothing to issue, so if a nominal warning sufficed, police could place a paid confidant beside an indicted defendant, tell the confidant to stay quiet, and collect whatever the defendant said. The right would then depend on how an agent phrased a briefing and not on what the arrangement was likely to produce. The incentives point the same way, since Nichols would be paid only if he produced useful information, and the Court stressed that he therefore had an incentive to produce it.⁴⁶ A warning that cuts against the informant's own financial interest tells the agent little about what the informant will do, which is why the test looks to what the government must have known its arrangement would yield.

The Government made a second attempt to narrow the test, arguing that Brewer v. Williams had modified Massiah's "deliberately elicited" standard. The Court agreed that affirmative interrogation, absent waiver, would certainly satisfy Massiah, but it was not persuaded that Brewer turned the standard into a requirement of affirmative questioning.⁴⁷ Massiah itself shows why: in that case no inquiry was made into whether Massiah or his codefendant first raised the subject of the crime.⁴⁸ The elicitation question therefore looks at what the government arranged and knew, and it does not ask who spoke first. That reading fits the later statement that the Sixth Amendment is not violated when statements arrive by mere luck or happenstance, while knowing exploitation of an opportunity to confront the accused without counsel is as much a breach as intentionally creating the opportunity.⁴⁹

The same "do not question" warning could be added to either scene without changing the result, so the fact that moves the answer is the government's arrangement with the person doing the talking. Justice Powell, concurring in Henry, read the holding in just that narrow way: the mere presence of an inmate in the cell, or incidental conversation with the defendant, would not be enough to violate Massiah.⁵⁰ Justice Blackmun, dissenting, would have asked whether the government acted with the specific intent to evoke an inculpatory disclosure.⁵¹ The majority's "likely to induce" wording, read literally, could reach even a negligent triggering of an incriminating response, yet the majority appears to have treated the case as one of true deliberate elicitation, because the agent, despite warning Nichols not to question Henry, still had the intent to obtain statements or to have the informant take affirmative steps.⁵² Students lose this issue when they treat the agent's instruction as decisive, since the instruction in Henry was explicit and the Court looked past it to what the arrangement was likely to produce.

That formulation still leaves a gap. Henry reserved the question whether elicitation occurs when an informant is placed in close proximity to a defendant but makes no effort to stimulate conversations about the crime charged.⁵³ The next sections take up a cooperating co-defendant who records talk with an indicted defendant, Maine v. Moulton, and then Kuhlmann v. Wilson, which answers the reserved question.