United States v. Henry

PETITIONER:United States
RESPONDENT:Henry
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 79-121
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 447 US 264 (1980)
ARGUED: Jan 16, 1980
DECIDED: Jun 16, 1980

ADVOCATES:
Mr. Andrew L. Frey – for petitioner
Michael E. Geltner – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – January 16, 1980 in United States v. Henry

Warren E. Burger:

We’ll hear arguments next in United States against Henry.

Mr. Frey, I think you may proceed.

Mr. Andrew L. Frey:

Mr. Chief Justice and may it please the Court.

This case is here on the Government’s petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

That Court granted respondent collateral relief from his conviction on the ground that certain testimony admitted at his trial of a jail cellmate was admitted in violation of his Sixth Amendment right to counsel.

In the Fall of 1972, respondent was arrested and indicted on a charge of participation in a bank robbery in Norfolk, Virginia.

At his trial some months later, the prosecution’s evidence included the testimony of two individuals who had been cellmates of respondent’s at the Norfolk jail during the period between respondent’s indictment and his trial.

One of the cellmates, Nichols, was a Government informant, the other Saddler was not.

Both men testified about damaging admissions that respondent had made to them which indicated that he was a participant in the bank robbery.

Several years later, respondent filed a motion for collateral relief in which he charged for the first time, among other things, that the admission of Nichols’ testimony violated his Sixth Amendment right to the assistance of counsel.

His motion was denied, but on appeal the Court of Appeals remanded for an evidentiary inquiry into the claim.

On remand, the District Court again denied the motion without a hearing on the basis of affidavits submitted by the two FBI agents regarding the nature of their contacts with the witness Nichols.

The significant affidavit for purposes of this case was that of Agent Coughlan.

Perhaps the best way to put the issue that is before the Court today into focus, is if I read the pertinent excerpts from his affidavit which are at Page — begin at Page 57 (a) of the appendix of the petition for writ of certiorari.

Agent Coughlan averred that on November 21, 1972, I contacted it with Benjamin Nichols at the Norfolk City Jail.

Nichols had been contacted by me for approximately a year prior to this and during my contacts with him he had provided confidential information to the FBI and had been paid for it.

The time that I contacted Nichols, Nichols advice that he was in the same cellblock as Billy Gale Henry as well as other prisoners who had federal charges against them.

I recall telling Nichols at this time to be alert to any statements made by these individuals 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, but if they engaged them in conversation or talked in front of him, he was requested to pay attention to their statements.

I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished.

The affidavit goes on to relate the provision of information to — by Nichols to the agent after Nichols got out of jail and then it states at Page 59 (a), Nichols was paid by the FBI for expenses and services in connection with the request that Henry had made of him in jail and for the information furnished by Nichols.

Finally, it says I never requested that anyone affiliated with the Norfolk City Jail to place Edward Benjamin Nichols in the same cell of Henry.

Now, on the basis essentially of this affidavit, the District Court denied relief and on exactly the same basis, the Court of Appeals majority upheld respondent’s Sixth Amendment claim.

The Court described the issue before it is whether undisclosed Government monitoring of respondent’s conversations while he was in custody violated his right to counsel.

In responding to the Government’s argument based on language in Brewer against Williams suggesting that some form of interrogation is a prerequisite to finding a Massiah violation, the court held that requirement satisfied by general conversation.

The holding which is under review today may perhaps best be summarized in the following statement from the Court of Appeals’ opinion.

In the instant case, even if we assume that Nichols obeyed these instructions not to interrogate Henry about the bank robbery, Nichols did testify that he engaged in conversation with his cellmate Henry.

If by association, by general conversation or both, Henry developed sufficient confidents in Nichols that Nichols bared, excuse me, that Henry bared his incriminating secrets to a non-disclose paid informer, we think that there was interrogation within the meaning of Brewer and therefore violation of the Massiah doctrine.

William H. Rehnquist:

Do you think this is basically a question of fact or law?

Mr. Andrew L. Frey:

Question of law as the case now stands.

Mr. Andrew L. Frey:

Unfortunately, the facts are not very well developed, but in effect what happened was that the Court of Appeals granted summary judgment against us, determining that the mere fact that Nichols was informant, that he shared cell with Henry and then he engaged in general conversation —

William H. Rehnquist:

Well, you don’t mean in a technical sense that the Court of Appeals granted summary judgment against you, do you?

Mr. Andrew L. Frey:

They granted relief without a hearing having been held on the facts.

In other words, they granted a relief on the assumption that the fact that there was association and general conversation was sufficient to make out a violation of the Massiah doctrine.

William H. Rehnquist:

Has this Court ever held who has the burden of proof in a federal habeas action?

Mr. Andrew L. Frey:

The habeas petitioner would have the burden of proof.

However, if as here was the case, it is conceded the operative facts on which the decision of the Court of Appeals rested or conceded by the Government and I think they are, then this Court can review the question of whether the Court of Appeals was correct in saying that was enough to grant relief.

Now, in dealing with the issue posed by this case, I think there are two different sets of variables to be considered.

The first set involves the manner in which the witness came to share a cell with the defendant and agreed to testify at trial on the prosecution’s behalf.

The one extreme is a case like Milton against Wainwright, where an undercover officer posing as fellow inmate, is deliberately placed in the defendant cell.

Warren E. Burger:

Do you think it — the case turns on whether he was deliberately placed there or he got there?

Mr. Andrew L. Frey:

We don’t think the case turns on that.

That is we think that they would have to be a reversal in either event, but in this case, as the record stands, there is no evidence that he was deliberately placed in there for the purpose of extracting statements from the respondent.

Warren E. Burger:

So we should decide the case on the assumption, among other things, that he was deliberately placed there?

Mr. Andrew L. Frey:

No, I don’t think if (Voice Overlap) —

Potter Stewart:

(Voice Overlap) made any difference so that make (Voice Overlap) —

Mr. Andrew L. Frey:

We —

Potter Stewart:

— so we can (Voice Overlap) —

Mr. Andrew L. Frey:

— say that you could not sustain the decision of the Court of Appeals even if he were deliberately placed there.

Potter Stewart:

Right.

Mr. Andrew L. Frey:

But I’m not sure that it would make no difference, it’s a little hard for me.

Potter Stewart:

I thought that’s what you did?

Mr. Andrew L. Frey:

We believe we should win even if he were deliberately placed there as long as there was not the kind of deliberate elicitation or interrogation that —

Potter Stewart:

Well now Massiah didn’t require interrogation?

Mr. Andrew L. Frey:

Well, I’d be happy to discuss that now if you like —

Potter Stewart:

Are you going direct yourself?

Mr. Andrew L. Frey:

I certainly will direct myself to that.

Apart from the situation where an officer is put in the cell as in Milton, at the other extreme it’s the not uncommon situation where a cellmate of a defendant comes to the authorities, tells them that the defendant is talking about the crime with which he is charged and offers to inform the authorities about the defendant’s statements.

This case is somewhere in between those (Voice Overlap) —

William H. Rehnquist:

Well, in that latter case if that’s all he did and then informed the authorities to the statements that he (Voice Overlap) —

Mr. Andrew L. Frey:

No, I’m talking about state, (Voice Overlap) —

William H. Rehnquist:

— had made then he wouldn’t been in government —

Mr. Andrew L. Frey:

There would be no problem it would be the statements made thereafter.

William H. Rehnquist:

I understand.

Mr. Andrew L. Frey:

There would be no issue as to statements already made.

Now, the second kind of variable and the one that is perhaps in the forefront of the present case concerns the nature of the relationship or interaction between the witness and the defendant.

Again, the possibilities can be rated along the spectrum.

At one end of the spectrum is an informant in an adjoining cell to the defendants who simply overhears incriminating statements, but has no interaction whatsoever with the defendant.

At the other end is the situation in Milton in which an extended and calculated effort is made to “open the defendant up by repeated questioning about the crime of which the defendant stands charged.

Now unless the rationale underlying the Massiah doctrine is to be entirely reexamined, it seems clear that the Milton situation constitutes a denial of the right to counsel.

Conversely, I see absolutely nothing in the Court’s opinions on the subject to suggest that the purely passive overhearing of conversations between the defendants and some third-party, other than the defendant’s lawyer, could properly be held to evade the right to counsel.

Warren E. Burger:

What would you say about placing a transmitter right in the cell, not a person but transmitter?

Mr. Andrew L. Frey:

I would say that would not violate the Sixth Amendment right to counsel.

There might be Fourth Amendment question.

That is similar to the issue in the Hearst, Patty Hearst case in the Ninth Circuit and we believe that that was correctly decided by the Ninth Circuit.

William H. Rehnquist:

When you say a third party, do you draw a distinction between third party who is paid by the government and a third party who is just another convict so to speak?

Mr. Andrew L. Frey:

Well, that’s — I think it’s clear that if he speaks to another convict, who was not a government agent there is no Massiah issue whatsoever.

So, I’m assuming in this hypothetical that the agent is silent in the next cell or prison guard who walks by and overhears the statement, that is I’m talking about obtaining statement with absolutely no act or effort on the part the government and I view that as one polar extreme in the act of effort to open up a defendant by intensive interrogation about the offense to be the other polar extreme.

Thurgood Marshall:

But there is no question this man was a government agent?

Mr. Andrew L. Frey:

We don’t question that this man was a government.

Potter Stewart:

(Voice Overlap)

Thurgood Marshall:

And being paid?

Mr. Andrew L. Frey:

Well, we know that he was paid at some point for the information that he provided.

Thurgood Marshall:

And he was paid for listening, but not asking questions?

Mr. Andrew L. Frey:

That’s what he was instructed to do.

Thurgood Marshall:

And do I assume from that if he said he did ask questions, he wouldn’t be paid?

Mr. Andrew L. Frey:

I don’t know.

Warren E. Burger:

Well, if he didn’t ask questions, he’d be like, he’d be in a passive role like the transmitter bug, wouldn’t he?

Mr. Andrew L. Frey:

That would be true.

No, I’m —

Warren E. Burger:

But you said transmitter would be alright too?

Mr. Andrew L. Frey:

I think that there is no basis in any of these Court’s decisions to suggest that the transmitter would violate the right to counsel and while the opinion of the Court of Appeals initially cast the issue in terms of monitoring the defendant’s conversations, I don’t think even its decision really can be read to hold that near overhearing violates the right to counsel.

They relied on also the fact that there was conversation between the witness informant and the defendant.

It is clear, however, that the Court did not require that the conversation relate in any way to the defendant’s case.

Accordingly, the narrow question before the Court is whether general conversation about sports, the weather or other neutral topics makes any incriminating statements thereafter volunteered by the defendant to a cellmate, inadmissible.

Now as I understand that the Court of Appeals theory for finding a violation in such circumstances is thereby manifesting friendliness the informant will create an atmosphere in which the defendant is more likely to trust him and to reveal incriminating information.

Now, it seems plain to me that the Court of Appeals’ decision cannot be squared either with the past descriptions of the kind of conduct that the Massiah rule prohibits or with the right to counsel rationale of that rule.

Looking first at what the Court has said is prohibited the Massiah opinion speaks of deliberate elucidation.

Now, elucidation is a somewhat vague term, but to me it clearly suggests some kind of drawing out, of overcoming some resistance to speak or at least of constructing some artificial situation that is particularly likely to produce the desired statements.

Massiah in fact involves specific questioning of the defendant about the crime by being informant and in Brewer, the Court made quite clear that interrogation or something quite like it is the touchstone for finding a violation of the right to counsel.

Byron R. White:

Well, was that the holding, you think?

Mr. Andrew L. Frey:

No, holding is that the right to counsel was violated by what was tantamount to interrogation.

Byron R. White:

By interrogation, by interrogation.

Mr. Andrew L. Frey:

However, —

Byron R. White:

But it didn’t — is there something — is there any case, I guess if there were a case we wouldn’t be here, saying that no violation if no interrogation?

Mr. Andrew L. Frey:

There is no case of this Court saying that there’s no violation in any circumstances that had been before this Court.

Potter Stewart:

There was no interrogation as such in Massiah itself, is there?

Mr. Andrew L. Frey:

Well, —

Potter Stewart:

It certainly wasn’t in McLeod against Ohio.

Mr. Andrew L. Frey:

There’s nothing in McLeod to suggest that there was not interrogation.

If you go back to the opinion of the Ohio Court, the Court does refer to the statements having been voluntarily made, but I believe in context that is a reference to their having been uncoerced and not a reference to their having been spontaneous.

The issue in McLeod and this is a problem in dealing with a summary disposition without opinion is that the Ohio Supreme Court held in McLeod that if an indicted defendant who did not yet had counsel did not have the right to counsel under Massiah.

So, that it’s hard to tell what the Court’s reversal was based on.

Potter Stewart:

There was another summary reversal in which it was even clear that there was not interrogation, wasn’t it?

Mr. Andrew L. Frey:

Well, I — the Brady case is —

Potter Stewart:

What’s the name, Brady?

Mr. Andrew L. Frey:

Brady, yes.

That is unquestionably the closest I think that the Court has come to holding that letting the defendant tell you all facts about the crime violates Massiah.

Potter Stewart:

Well, it’s a person who’s been indicted, isn’t it?

Mr. Andrew L. Frey:

Yes.

Mr. Andrew L. Frey:

(Voice Overlap)

Potter Stewart:

(Voice Overlap) under indictment.

Mr. Andrew L. Frey:

No question when I used the word “defendant” I am referring to somebody who was (Voice Overlap).

Potter Stewart:

Not a suspect but somebody who was been indicted?

Mr. Andrew L. Frey:

That’s correct, that’s correct.

Potter Stewart:

And just all goes back to the concurring opinions in Spano against New York?

Mr. Andrew L. Frey:

Indeed it does.

William H. Rehnquist:

And none of those opinions nor any other case from this Court has ever held that if defendant simply blurts out to the warden of the jail in which he is confined, I want to get this out of my chest, I want to tell you what happened, that that’s inadmissible, isn’t it?

Mr. Andrew L. Frey:

They haven’t and I’m almost certain that —

Thurgood Marshall:

Can you find anyway he blurted out to his minister either way?

Mr. Andrew L. Frey:

To the minister —

Thurgood Marshall:

This is paid government informant.

Mr. Andrew L. Frey:

That’s true.

Thurgood Marshall:

And a paid government informant, do you recognize is different from a warden?

Mr. Andrew L. Frey:

Well, a warden is also an agent of the government.

Thurgood Marshall:

Is he a paid government informer?

Mr. Andrew L. Frey:

He’s paid.

He works for the government (Voice Overlap) —

Thurgood Marshall:

Is he paid (Voice Overlap) government informer, do you?

Mr. Andrew L. Frey:

Well, no not in colloquial sense.

Thurgood Marshall:

You don’t?

Mr. Andrew L. Frey:

No, I’m saying that the warden is not a (Voice Overlap) or a —

Byron R. White:

He’s legal stoolie.

Mr. Andrew L. Frey:

Well, let me come back to make the point that I slightly lost touch with here about what Brewer does hold in response to Justice White’s question.

It’s true that the state lost Brewer, but it is also true that the opinion in Brewer makes clear that there was both extended association and general conversation over a wide-ranging variety of topics and yet the Courts said that these ingredients alone would not render William’s incriminating statements and actions admissible, at least that is how I read the statement by the Court.

No constitutional protection would have come in to play if there had been no interrogation.

Now, they would hardly have been any need for the Court in Brewer to engage in the extended analysis of whether the “Christian burial speech” constituted an interrogation if the mere fact that Detective Captain Leaming was in the car and being friendly to Williams was enough to cause any statements that Williams made to violate Massiah.

Warren E. Burger:

Is the statement of the defendant that the conversation was in reality a form of interrogation disputed categorically anywhere or other than (Voice Overlap)?

Mr. Andrew L. Frey:

The statement in this case?

Warren E. Burger:

Yes.

Mr. Andrew L. Frey:

Well, I —

Warren E. Burger:

No, I’m referring to the concurring opinion of Judge Butzner who says nevertheless absent testimony by the informant where he suggested that there should have been a hearing by the district judge on this issue, absent testimony by the informant about what he said to the defendant, the judgment must be reversed because of the informant’s admission that he had conversed with the defendant and because of the defendant’s assertion that the conversation was a form of questioning —

Mr. Andrew L. Frey:

Well, —

Warren E. Burger:

— now, is that disputed?

Mr. Andrew L. Frey:

I have this —

Warren E. Burger:

Does the informant dispute to that at any point?

Mr. Andrew L. Frey:

Well, I think we do dispute —

Warren E. Burger:

Well, (Voice Overlap) but the informant, did he?

Mr. Andrew L. Frey:

Well, informant — we don’t have an affidavit from the informant in the record in this case.

All we have is the testimony of the informant at trial and I don’t recall that the testimony specifically denied interrogating him but I do find Judge Butzner’s opinion very strange in this regard that the assertion of the petitioner in a 2255 petition that there was interrogation which is illegal term which — about which much ink has been spilled by the scholars after Brewer against William should be dispositive of this case.

Now, let me try to address a point that Justice Stewart made about the turning from Brewer itself to the Sixth Amendment policies that underlie the right to counsel principle that’s involved here.

The main stream of the Court’s Sixth Amendment cases have, starting with Powell against Alabama, have dealt with the formal judicial proceeding that is various stages of pre-trial which have a degree of formality where defendant is facing unfamiliar surroundings, complex legal issues and an experienced prosecutor.

Potter Stewart:

And that’s what generally follows an indictment, isn’t it?

Mr. Andrew L. Frey:

Yes, those are things that follow indictment.

Potter Stewart:

In our system of the administration —

Mr. Andrew L. Frey:

Yes.

Potter Stewart:

— of the criminal law when a person is indicted is followed by formal judicial proceedings in an open courtroom, there are all sorts of constitutional rights to counsel, to confrontation (Voice Overlap) —

Mr. Andrew L. Frey:

That’s true.

Potter Stewart:

(Voice Overlap) — it’s open to the public and it’s presided over by judge.

Mr. Andrew L. Frey:

Well, if I can — I agree with that completely and in those cases, the need for counsel is obvious when we are talking about those proceedings.

William H. Rehnquist:

The courtroom isn’t always open to the public of course, is it?

Mr. Andrew L. Frey:

Well, I’d rather not get involved.

[Laughter]

The — to me the reasons for implicating the right to counsel in the Massiah setting are less obvious than they are in the formal judicial proceedings setting and neither Massiah nor Brewer undertake a detail analysis of the connection between the suppress statements and the role that counsel would play.

Potter Stewart:

Well, have you read the final paragraph in the Spano case —

Mr. Andrew L. Frey:

I’m coming to that.

I was about to say that I think the best sources for understanding the applicable policies are your concurring opinion in Spano and the Court’s opinion in Ash.

Now, Ash speaks of trial like confrontations and as I read the Spano opinion, it focuses on the notion that extra judicial interrogation of the accused which was unquestionably what there was in Spano, constitutes in effect the pre-trial trial, a trial outside the trial to invert the Hamlet metaphor.

Now, bringing these notions to bear upon the present case, I don’t think that there is anything about association and general conversation among cellmates in a jail that remotely resembles the trial type confrontation that brings the requirement that counsel be present into play.

It seems to me that only if there is specific questioning by a government agent designed to elicit information about the offense or some other actions or statements uniquely likely to draw the defendant out on the subject to overcome his reticence to reveal what he knows that we have the necessary pre-conditions for recognition of a right to counsel, that we have a basis to say, “Yes, this is really part of the trial.”

Mr. Andrew L. Frey:

This is a critical stage of the prosecution which is the standard that has been used in Sixth Amendment cases.

Now, it’s true I think that when he makes a confession to a cellmate who’s going to report that that is critical, but it is not, I believe at stage of the prosecution unless it emerges out of a proceeding that in some way resembles the trial type proceeding and at least that’s the way I read Spano and Ash.

In the present case, the record is entirely consistent with the conclusion that respondent was quite willing to volunteer information about the crime and denied the specific interrogation or any kind of trick was necessary to draw him out on the subject.

Accordingly, I think the record falls far short of justifying the relief recorded him by the Court of Appeals.

Byron R. White:

Well, was he drawn out or not?

Mr. Andrew L. Frey:

We don’t know that, we don’t know that (Voice Overlap) —

Byron R. White:

What if he was?

Mr. Andrew L. Frey:

Excuse me.

Byron R. White:

What if he was drawn out, was that interrogation or —

Mr. Andrew L. Frey:

Well, I think we would have to know more.

I mean we can spin the endless hypotheticals about things that could’ve going on in the cell and ask ourselves whether that would or would be the kind of trial like confrontations for which counsel is thought to be justified under the Massiah doctrine.

William H. Rehnquist:

There have been questions used and certainly low languages drawn out elicited, interrogated, do you conceive those to be just use in their ordinary dictionary sense of the word or do you conceive them to be words of our representing various places along the spectrum that you described?

Mr. Andrew L. Frey:

Well, I’m frankly somewhat at a loss because the sources in terms of this Court’s decisions to draw on a relatively limit in terms of an explication of what the concept of deliberately elicited means.

I think that —

William H. Rehnquist:

That was the word in Massiah I gather?

Mr. Andrew L. Frey:

That was the expression in Massiah deliberately elicited.

Byron R. White:

And Brewer was interrogated?

Mr. Andrew L. Frey:

Yes, although I think there is a reference to deliberately elicited as well.

Byron R. White:

Well, that was a quote from Massiah.

Mr. Andrew L. Frey:

Well, there are several places where the topic is touched upon but —

Potter Stewart:

Can you tell us that the facts in the Massiah case can be gleaned from the record in the District Court or the Court of Appeal or perhaps in the trial court but the so far as a review in the opinion of this Court the facts in the Massiah case were no more nor less than a conversation between Massiah and his supposed friend, weren’t they?

Mr. Andrew L. Frey:

Well, except that the —

Potter Stewart:

(Voice Overlap) that car which have been wired for sound.

Mr. Andrew L. Frey:

Well, the opinion says that — I will see if I can find the place.

All right, there are several places in the opinion where it refers to, you cite with approval for instance Judge Hay’s dissent in the Court of Appeals (Voice Overlap) —

Potter Stewart:

No, I’m — yes, but I’m talking about the so far as the facts are viewed in the Massiah case by the — by this Court, there wasn’t much review of them, was there?

Mr. Andrew L. Frey:

There was not much.

Potter Stewart:

It was given that Massiah had been indicted and that his supposed friend was in fact a government agent and if the government agent deliberately elicited or acquired information from Massiah sitting on the front seat of that car in New York (Voice Overlap) —

Mr. Andrew L. Frey:

(Voice Overlap) deliberately elicit, it didn’t say deliberately was elicited or acquired, it said deliberately elicited.

Potter Stewart:

Well, what — and what’s — well —

Mr. Andrew L. Frey:

Well, I mean in my view, I confess that I have some difficulty in evaluating it.

Our brief addresses the somewhat what the connection is between the right to counsel and the right not to have the statements admitted.

In trying to discern them looking at sources that have explained it the best I can come up with in my understanding is this notion that what is going on outside the trial, there is the characteristics that sufficiently resemble a trial that a lawyer should be there.

And I don’t think sitting — I don’t think jail house banter about the weather or other kinds of things —

John Paul Stevens:

Jail house banter, isn’t it a little bit different when one of the bantering parties has a contingent prearrangement with the government that if the bantering elicits information he gets paid if it doesn’t he does not get paid.

Mr. Andrew L. Frey:

It is different only in the sense that there would be no issue at all about the admissibility of the statements if he were not a government agent.

John Paul Stevens:

It is clear that the informer — informant had a motive to elicited information.

Mr. Andrew L. Frey:

It’s clear —

John Paul Stevens:

And if he in fact received information and in fact was paid for it.

The only missing link is exactly how did he get it?

Mr. Andrew L. Frey:

Well, I think our position is there is nothing —

John Paul Stevens:

It’s hard to draw constitutional line on just suggesting, giving a lot of conversation that will sooner or later draw out the statement in square questioning.

Mr. Andrew L. Frey:

Well, the difficulty is that the alternative it seems to me is to push these principles to their logical extreme because of the difficulty of drawing a line and to end up with the situation where you simply can’t overhear the defendant.

I mean suppose —

John Paul Stevens:

It’s easy to draw a line between somebody who was not had contact with the government before and didn’t have a motive to do —

Mr. Andrew L. Frey:

Well, I understand but the government does have to stop investigating a crime because the defendant has been indicted.

John Paul Stevens:

Well, but it has to stop taking him off by himself and asking questions at least that much —

Mr. Andrew L. Frey:

Well, but that’s (Voice Overlap) —

John Paul Stevens:

— (Voice Overlap) —

Mr. Andrew L. Frey:

— and that is what Massiah and Brewer held.

We can’t take him off by himself and ask questions but in this case, we’re talking about four or five cellmates in a cell in the Norfolk Jail who for all we (Voice Overlap) —

John Paul Stevens:

Generally, (Voice Overlap) have a man under indictment within custody unless you pretty — your case pretty well made, would you?

Mr. Andrew L. Frey:

Well, that is not — well, usually by the time of indictment although often there are cases where more evidence would be very helpful at getting an accurate outcome of the trial.

Let me just turn my second point for one minute because my time is short and that is the question of the scope of the agency of the informant and I just want to make one point.

Here, we had Mr. Nichols in the jail and he knew from his past experiences I expect most people in jail cells probably know that if they can provide information that would be helpful to the prosecution on one of their cellmates they could expect some kind of consideration for this information.

I think it’s fairly clear that if Nichols had not talked to agent Coughlan, but had simply in the expectation that he would probably get something listened though a saddler did and then come forward afterwards there would be no issue in this case from the Massiah violation.

Yet, what we have here is that Nichols and the agent communicate, the result of this communication is not really to impart any new information to Nichols that the FBI would like any confessions that Henry makes, Nichols knew that, but to impose constraints on the way Nichols’ behaves.

To tell Nichols, look we have to have a scrupulous regard for the Sixth Amendment rights of this defendant.

Thurgood Marshall:

This is a jail bird and a stoolie pigeon and you talk about scrupulous?

[Laughter]

Mr. Andrew L. Frey:

Yes, it seems to me that the agent certainly was acting scrupulously.

The government, we are talking —

Thurgood Marshall:

I know but this man did if he testify?

Mr. Andrew L. Frey:

Well, we’re talking about excluding —

Thurgood Marshall:

Is it true that if he admitted the question he wouldn’t get paid?

Mr. Andrew L. Frey:

I can’t say that.

I’m not —

Thurgood Marshall:

Well, wasn’t he told not to question and he would be paid?

Mr. Andrew L. Frey:

He was told not to question him.

I mean one of the issues that would raise —

Thurgood Marshall:

And he was paid.

Mr. Andrew L. Frey:

Yes?

Thurgood Marshall:

And he was paid?

Mr. Andrew L. Frey:

And we that don’t know that he questioned him.

That is the very issue in this case.

I’d like to reserve what little time I left for rebuttal.

Warren E. Burger:

Mr. Gletner.

Michael E. Geltner:

Mr. Chief Justice and may it please the Court.

In my view, the Court of Appeals was perfectly correct both in its view of the law and in its handling of the case given its peculiar procedural history.

If we look at that procedural history, what we say is first of all the fact that the trial testimony of Mr. Nichols came before the jury without any knowledge of, excuse me, on the part of the defense that Mr. Nichols was an informant and because of that the deficiency in the development of the record as to the way in which he and Mr. Henry interacted.

The issue was squarely put by the first motion to vacate and the District Judge dismissed it without a hearing.

The Court of Appeals then remanded to the District Judge with an opinion in which it explained to District Judge what facts to find and the District Judge rather than holding that evidentiary hearing, wrote a letter to the prosecutor, indicating that he believe the matter could be disposed of without the necessity of a public hearing and advised them if the agents did request Mr. Nichols or Sabbath to interview Henry, we probably will have to grant the hearing.

At that point, the affidavit of Agent Coughlan comes forward and says that he advised Mr. Nichols not to initiate conversations with regard to the bank robbery or to question Mr. Henry.

Now, in that light, I think it is easy to understand that the Court of Appeals saw the question as whether or not the record was adequate for outright reversal of the conviction or whether on the contrary, it made sense to remand one more time for an evidentiary hearing.

And with that in mind, I’d like to going on and take a look at the record because I believe the record strongly supports the conclusion that Court of Appeals was correct, no matter how we interpret the Massiah decision.

We know from the record that the bank robbery occurred on the 28th of August of 1972 and on that date, Mr. Moore and Mr. Locke were arrested and charged with a crime.

On the 22nd of September, a complaint was sworn out by Agent O’Hara, who was the supervising agent in charge of the investigation, which indicates that at that time the case against Mr. Henry consisted of the FBI’s knowledge that he had participated in the rental of the house on Wales Avenue in Norfolk at which Mr. Moore and Mr. Locke were arrested.

William H. Rehnquist:

Mr. Geltner, let me ask you one question referring to a statement you made a couple moments ago that as to whether the Court of Appeals should’ve remanded for another hearing after the District Court treated them the first remand the way it did.

You’re not suggesting here that the present decision under review remanded the habeas petition for another hearing, right?

Michael E. Geltner:

No, quite the contrary Your Honor.

Michael E. Geltner:

The Court of Appeals saw the question as whether or not the conviction should be set aside or whether or not a hearing, which would have filled out the record on the interaction between Mr. Henry and Mr. Nichols, was necessary.

William H. Rehnquist:

Well, it assumed then all resolved doubts in favor of the government and nonetheless set the conviction aside.

Michael E. Geltner:

Yes Your Honor, precisely and a point of my summary of the record now is to establish that he record is quite adequate to support that conclusion.

As I was saying, when the complaint was sworn out in September with the case against Mr. Henry consisted of was evidence that he was connected with the rental of the house which was Mr. Moore and Mr. Locke were found in.

On the 8th of November, the warrant turned up in Atlanta, Georgia and on the 10th of November, Mr. Henry was arrested in Atlanta, Georgia.

On the 15th of November, Mr. Henry was indicted and charged with the crime.

On the 21st of November, 1972, after a period of transit Mr. Henry arrived in Norfolk was put in a Norfolk City Jail.

At that time, from all we can tell from the record and I think the record clearly establishes that the government’s case still consisted of the evidence that he was a participant in the rental of the hideout.

On the 21st of November, Agent O’Hara visits Mr. Henry in the Norfolk City Jail, interrogates him of that and finally Mr. Henry refuses to answer questions.

According to Agent O’Hara Mr. — and his testimony which is at the transcript Page 106, Mr. Henry stated he would not like to answer general questions in regards to his activities as he was afraid, we would change his answers around.

On the same day, without any more of a case then I’ve already laid out, on the very same day Mr. Coughlan tells us from his affidavit, Agent Coughlan, said he went to visit Mr. Nichols in the Norfolk City Jail at which time he gave him instructions with regard to Mr. Henry and although the affidavit of Agent Coughlan tells us that he placed limitations on what he wanted Mr. Nichols to do, it also tells us that he advised Mr. Nichols that there was a bank robbery, a bank robbery charge against Mr. Henry and what the agency was interested in was getting statements about the bank robbery.

It was quite clear even if we believe that Mr. — Agent Coughlan’s affidavit in all of its nuances it is quite clear that he put Mr. Nichols on notice precisely as to what he wanted.

On the 27th of November, Mr. Henry appeared in court for arraignment for the — this is the first court appearance that we know from record on the morning he appeared without counsel before Judge McKenzie.

Judge McKenzie asked him if he wanted counsel, he said he did and Judge McKenzie appointed counsel.

There was a recess taken and Mr. Henry was arraigned that afternoon and appeared in court.

The next thing the record tells us is that on the Sixth of December, Agent Coughlan again visited with Nichols and Nichols told him what information he had obtained from Mr. Henry.

The information was essentially the same information that he testified to a trial, this we get from Agent Coughlan’s affidavit.

Now, if we — so, what we’re talking about is the period of time from the 21st of November through the Sixth of December during the majority of which period Nichols and Henry and others were in jail together.

Now, if we look at Nichols’ trial testimony which admittedly is not laid out in — admittedly was not the result of specific questioning on what happened between Nichols and Henry, we nevertheless see that the conversations that occurred between Henry and Nichols were quite directed and related quite specifically to the crime in question.

Potter Stewart:

Mr. Geltner, I understand there’s no question about what Henry had been indicted, but you say he’d been arraigned and counsel had been appointed?

Michael E. Geltner:

He was arraigned and counsel was appointed on 27th of November.

Potter Stewart:

That appears somewhere here?

Michael E. Geltner:

That appears — it appears in the record on Page 1 of the joint appendix.

The second reference November 28th court proceedings before JAM who was Judge McKenzie.

That should be November 27th not 28th.

The appendix has an error, I checked it myself.

Potter Stewart:

Was the appendix an error?

Michael E. Geltner:

The appendix is an error.

The record indicates, the docket sheet in the record indicates November 27th.

The entry immediately below that November 27 CJA, 20 appointment and voucher for counseling services.

Michael E. Geltner:

So what we have is the date of appointment of counsel for some time in the middle of the period during which the jail interrogation eliciting obtaining or whatever occurred, the indictment preceded the entire period falling on November 15th.

Potter Stewart:

And then when did Nichols conversations take place, sometime between the 15th (Voice Overlap)?

Michael E. Geltner:

The Nichols’ conversations with Henry —

Potter Stewart:

Yes.

Michael E. Geltner:

— in the jail cell occurred sometime between the 21st of November —

Potter Stewart:

Yes.

Michael E. Geltner:

— and the Sixth of December.

Potter Stewart:

So that —

Michael E. Geltner:

All of which all post indictment —

Potter Stewart:

All post indictments (Voice Overlap)?

Michael E. Geltner:

That much is clear as I’m sure Your Honor is aware the case is interpreting — the cases in this Court interpreting Massiah some of them involved counsel plus indictment some of them involved simple indictment.

Potter Stewart:

The Massiah and Brewer invited — involved the counsel, indictment plus counsel.

Michael E. Geltner:

Massiah and Brewer both involved counsel plus indictment.

Potter Stewart:

Indictment?

Michael E. Geltner:

(Voice Overlap) in McCloud —

Potter Stewart:

(Voice Overlap) indictment or charge or some kind?

Michael E. Geltner:

Yes in Brewer involve the —

Potter Stewart:

Counsel of the Massiah (Voice Overlap) —

Michael E. Geltner:

— formal charge is not yet — not indictment yet but there have been a counsel in the case formal charges had been filed.

In McCloud, the statement was obtained after indictment, but before counsel came in to the case.

Potter Stewart:

You know what they know —

Michael E. Geltner:

That’s likewise true in the Brady case.

Potter Stewart:

Brady, from in what jurisdiction was Brady?

Michael E. Geltner:

Brady was a Fifth Circuit decision.

Harry A. Blackmun:

Mr. Geltner, do you have any comment about the Hoffa and then Hearst cases, the latter you don’t cite, the formal one you do only and describing the dissenting opinion below?

Michael E. Geltner:

Yes Your Honor.

I’d be happy to address those now.

In the Hoffa case we are face with three issues, the Fourth Amendment question, the self incrimination question and the right to counsel question.

On the right to counsel question, it seems to me that the Hoffa case turns on the proposition that the evidence obtained from Hoffa by the undercover agent Partin was used in another case and that if the information had been obtained four years in the case before the Court at the time then we have Massiah.

By that, I mean if the Court, if you remember Your Honor, Hoffa was on trial in something referred to the opinion is the Test Fleet trial and Mr. Partin came to see him in an undercover role while he was awaiting trial during the period of the trial.

Michael E. Geltner:

The testimony that Partin gave that was before this Court was his testimony in the jury tampering trial which resulted from, in part from the information that he developed.

On the Sixth Amendment question, it seems to me that the case turns on that and the Court — in the Court’s opinion we see a reference to that part of the Massiah opinion said — which says that the crucial question is whether or not information in the pending case is elicited and used in the pending case.

With regard to Hearst, Hearst of course relates to Mr. Chief Justice Burger’s question before as to the placement of a listening device.

The Ninth Circuit’s opinion in Hearst turns on the fact that the listening device is a listening device which was generally available and used in that jail for the purpose of monitoring security matters.

The statement was not made to an agent nor was the listening device placed for the purpose of obtaining information in the pending case.

That was an accident according to the opinion of the Ninth Circuit in Hearst and I prefer to rest at this point on that distinction.

(Voice Overlap) —

William H. Rehnquist:

Mr. Geltner —

Michael E. Geltner:

— that’s sufficient to distinguish from this case.

William H. Rehnquist:

Where do you draw the line in this spectrum that Mr. Frey has referred to?

Would you think that a person who is under indictment and in jail volunteering a confession to the warden is a violation of Massiah?

Michael E. Geltner:

No Your Honor.

I think the Government must attempt to obtain information in the pending case from somebody against whom the indictment is pending.

That’s what makes it a violation.

William H. Rehnquist:

So, a totally voluntary confession in effect to someone in the employ of the Government does not violate Massiah?

Michael E. Geltner:

Unconnected with the case?

William H. Rehnquist:

Well, unconnected with the case, I don’t know exactly the —

Michael E. Geltner:

In your example Your Honor if the warden is waiting in his office and Mr. Henry goes up and says “I’d like to confess today.”

The fact that he is – that the warden is a Government employee does not in my opinion make out a violation of Massiah.

If the warden or anybody else is procured to attempt to get Mr. Henry to do so then it seems to me that makes out a violation of Massiah.

Byron R. White:

Well, what if a cellmate who isn’t a Government agent at the time interrogates or finds out then as it turns out his quite willing to testify for the Government because he knows that people who knew get a break but he was never put there for that purpose?

Michael E. Geltner:

I think I have to agree with Mr. Frey on that Your Honor that that is not a violation of the Massiah right because that is not the Government obtaining information (Voice Overlap) —

Byron R. White:

Well, —

Michael E. Geltner:

— from the accused (Voice Overlap) — after that —

Byron R. White:

— perhaps, to be the policy of this prison and this warden and this Government that people who — people who do as a favor and get down a favor.

Michael E. Geltner:

The word is put at?

Well, I think we probably reach (Voice Overlap) the point which —

Byron R. White:

Well, the word is just seeps through the wall.

Michael E. Geltner:

I think I have to still agree with Mr. Frey that that’s not this case and that is not a Government agent.

The — at some point the Government makes somebody an agent when it seeks to have him do its bidding and he does so.

Byron R. White:

Then I suppose if the Government agent who is put in the cell if he was a mute he couldn’t speak, okay, he could just listen, I suppose you’re be still making your argument because he was put there to elicit.

Michael E. Geltner:

Put there to obtain information, (Voice Overlap) — that’s right.

Byron R. White:

And it wouldn’t make any different believes whether he said a word or interrogated anybody or not.

Michael E. Geltner:

Precisely, Your Honor.

Warren E. Burger:

He’d be the passive of a person like the passive electronic about you (Voice Overlap) —

Michael E. Geltner:

Yes sir.

The listening post —

Thurgood Marshall:

Except one when a man is on bail, he’s indicted, he has counsel his out on bail and the prosecutor that gets all one of this guidance that he hangs out of the bar down the 8th street, you go up there and see if he is bragging —

Michael E. Geltner:

Same case Your Honor.

I think that that’s a violation of —

Thurgood Marshall:

What?

Michael E. Geltner:

— the right to counsel.

Thurgood Marshall:

You mean if he was in the public bar bragging?

Earl Warren:

Yes.

Thurgood Marshall:

And the agent happened to hear him, he can’t talk about?

Michael E. Geltner:

If the agent went there for that purpose yes Your Honor.

If somebody else sitting at the bar happens to turn up and testifies —

Thurgood Marshall:

But suppose he goes up and he brags and the FBI agent is there getting a drink too but he didn’t go there for that purpose?

Michael E. Geltner:

I think that’s the warden in Justice Rehnquist’s example —

Thurgood Marshall:

You think just the warden (Voice Overlap) —

William H. Rehnquist:

That’s a very factual inquiry, isn’t it as to the intent with which the government employee approaches the defendant?

Michael E. Geltner:

That’s why I’m summarizing the facts Your Honor.

I think that’s right, I think that’s been pointed out in some of the opinions in Brewer that is that it’s essentially a factual inquiry.

I think it’s Mr. Justice Blackmun’s opinion in Brewer that points out that the subjective intention of the agent is very important in these cases.

Byron R. White:

So, suppose we disagree with you on your submission that just passive listening by the agent would’ve — would violate the right to counsel, do you lose this case?

Michael E. Geltner:

Of course not Your Honor.

(Voice Overlap)

Byron R. White:

(Voice Overlap) —

Michael E. Geltner:

That’s precisely where I was going —

Byron R. White:

Yes.

Michael E. Geltner:

— with my recitation of the record.

I had a reason.

One of my reasons is to request the Court to take a look at the testimony of Mr. Nichols’ —

Byron R. White:

What do you think, what do you think the Court of Appeals answer it to my question would be?

Michael E. Geltner:

Precisely the same as mine.

I think that’s the import of Judge Butzner’s opinion (Voice Overlap) —

Byron R. White:

So, do you think this — so you think they said there’s a violation here because passive listening would violate the right to counsel?

Michael E. Geltner:

Well, then —

Byron R. White:

If they said that, I’m not sure they went on and answered the question that you brought to answer.

Michael E. Geltner:

Well, Judge Winter’s opinion which is the majority opinion that which Mr. Butzner’s occurred with says, “If by association by general conversation or both Henry developed sufficient confidence in Nichols’ that Henry bared his incriminating secrets, we have a violation and then —

Byron R. White:

And that’s agreeing with you that passive listening is enough by an agent?

Michael E. Geltner:

It is either or Judge Winters’ opinion is —

Byron R. White:

Yes.

Michael E. Geltner:

— is either or.

Judge Butzner’s opinion placed his greater emphasize in my opinion on the fact that here we have a record which indicates that there were some conversations between Nichols’ and Henry in those conversation for about the subject to the bank robbery.

(Voice Overlap) —

William H. Rehnquist:

Yet he concurred in Judge Winter’s opinion?

Michael E. Geltner:

He did sir.

Warren E. Burger:

Do you think his limitation is narrow, the thrust of the Court’s opinion?

Michael E. Geltner:

The Fourth Circuit’s opinion, I think they do.

I —

Warren E. Burger:

Which he’s indicating he agrees with the limitations expressed in his concurring opinion?

Michael E. Geltner:

I think that’s a fair reading and as I was indicating I think that they read the record well and fairly.

On Page 134 of the transcript which is the first page of Nichols’ testimony, Mr. Nichols’ has asked the question, “Did you have an opportunity to have some conversations with Henry while he was in the jail?”

some conversations, we’re not talking about somebody who sat there is a listening post.

William H. Rehnquist:

But in — Mr. Geltner, you say that the record would’ve supported a narrower opinion in effect than in the Court of Appeals’ wrote I take it because on Page 7 (a) of the petition the language you have been referring Judge Winter’s opinion, he says, “Even if we assumed that Nichols obeyed his instructions and not to interrogate Henry about the bank robbery, he did testify he engaged in conversation so that they certainly don’t go much beyond purely passive listening to find a violation that Massiah did.

Michael E. Geltner:

I think that’s correct and I think particularly Judge Winter’s opinion which uses an either or if by association by general conversation or both which I think is either or.

I think Judge Winter’s opinion means either is enough.

I think Judge Butzner’s opinion does not place it in terms of either or and I think the record doesn’t require it and I think that’s probably the most important thing for the decision today.

The record does not require it.

Michael E. Geltner:

I want the Court to understand my position.

My position is that any efforts by the Government to obtain information for use in the pending trial against to whom they have a pending indictment is a violation of the right to counsel unless there has been a suitable waiver (Voice Overlap) —

Warren E. Burger:

And you draw the line (Voice Overlap) —

Michael E. Geltner:

— (Voice Overlap) happened to this case or — excuse me Your Honor?

Warren E. Burger:

Go ahead.

Michael E. Geltner:

Unless, there has been a suitable waiver or unless counsel’s present.

Warren E. Burger:

And you draw the line on whether this is pursuant to arrangements made in advance as distinguished from something that develops after the event?

Michael E. Geltner:

Yes I do Your Honor.

Warren E. Burger:

In other words, if the arrangements are made in advance then the listening post to this an agent if they’re not made in advance then he is just an ordinary informant like any other witness for the prosecution?

Michael E. Geltner:

Yes sir.

Lewis F. Powell, Jr.:

Mr. Geltner, let’s assume the Congress passed the statute requiring that listening device is be placed in the cells of all federal prisons and operated 24 hours a day, would you think that would be a valid?

Michael E. Geltner:

I think we would have terrific Fourth Amendment problem but your question (Voice Overlap) —

Lewis F. Powell, Jr.:

(Voice Overlap) What if I need them in the problem?

Michael E. Geltner:

— you need to address to the Six Amendment question.

Lewis F. Powell, Jr.:

Yes.

Michael E. Geltner:

And I think that’s Hearst.

I think that my position on that is the same as my position on Hearst that is if the purpose is something other than to obtain information for use in pending cases against to whom there are people who have a right to counsel then it’s a violation.

If the purpose is general, security measures for example, then I think that that I have to concede that’s not a violation on the right to counsel.

Byron R. White:

I take it your position would be no different if the agent in this case, the cellmate had said to him by the way whether you ignored or not I’m a government agent.

Michael E. Geltner:

Then I think we’ve got something more like Brewer than we have here that is we have the possibility of waiver.

I think it is implicit in all of the opinions in the Brewer case that it is possible for somebody who has a right to counsel because of indictment or formal ever certain settings to wave (Voice Overlap)

Byron R. White:

But if the — if all the agent there, if all the cellmate ever said is, “By the way government has asked me to report very thing (Inaudible) and asked me to report and I promise report everything ever say” and that then he just shuts up he never says another word and the other fellow sooner or later tells him something that’s incriminating.

Michael E. Geltner:

We might have a waiver?

Byron R. White:

Might have (Voice Overlap) a waiver —

Michael E. Geltner:

We might have a waiver?

Byron R. White:

But except for that would be the same.

Except for that you’d make the same argument?

Michael E. Geltner:

Yes, yes.

As the opinions are particular the concurring — the dissenting opinions in Brewer indicate that wherever question is always a close question in cases in which we have somebody known to be a police officer that seems to me it’s always a very easy question.

You can’t find a waiver when we’ve got an undercover informant.

Michael E. Geltner:

Now, Your Honors I had wanted to take a bit of time to point out in Mr. Nichols’ testimony, how strongly that testimony supports particularly Judge Butzner’s concurring opinion for the Court of Appeals.

Byron R. White:

Now, you’re really going to try to win the case now?

[Laughter]

Thurgood Marshall:

(Inaudible) my question —

Michael E. Geltner:

I thought that’s what I was here for.

Thurgood Marshall:

Do you go so far after indictment that if counsel is appointed any information obtained by any government agent cannot be (Voice Overlap) —

Michael E. Geltner:

Any government any —

Thurgood Marshall:

— under any circumstances?

Michael E. Geltner:

Any information obtained by a government agent who seeks to obtain information for use —

Thurgood Marshall:

(Voice Overlap)

Michael E. Geltner:

— in a pending trial.

Thurgood Marshall:

I don’t mean seeks, this guy is just standing there.

Michael E. Geltner:

Why did he go there?

If he went there (Voice Overlap) —

Thurgood Marshall:

(Voice Overlap)

Michael E. Geltner:

— to obtain information —

Thurgood Marshall:

I said the FBI agent went there to get a drink, that’s what I said in my hypothetical (Voice Overlap) —

Michael E. Geltner:

In your bar room hypothetical?

Thurgood Marshall:

Yes —

Michael E. Geltner:

If the FBI agent went there to get a drink and it just happened that Mr. Henry came along and made incriminatory statements?

Thurgood Marshall:

Yes.

Michael E. Geltner:

In my position is that is not a violation or the right to counsel.

The Government had not done anything to obtain the evidence —

Thurgood Marshall:

I thought you said you did —

Michael E. Geltner:

I’m sorry Your Honor I’d must have confused you with my answer.

I thought that was the same as the warden.

What are we saying Your Honors if we look at Page 135 of the transcript question, “Did Mr. Henry tell you anything about that bank robbery?”

Now, “tell” means we got a conversation between the two about the bank robbery.

Perhaps, it’s not questioning, but it’s a conversation.

“Would you relate to the jury what he told you?”

Michael E. Geltner:

at that point Mr. Nichols’ tells the jury the substance of the admissions that he attributes to Mr. Henry.

Further down on Page 136 of the transcript, the question to Mr. Nichols’, “Did he give you any reason for going in the bank?”

People give reasons for doing things when they are engaged in a conversation on a subject.

Nowhere, do we hear questions or answers in which Mr. Nichols’ tells us, “I overheard Henry bragging to other prisoners.”

William H. Rehnquist:

Well, have you overseen transcripts of your own examination witnesses and realize that colloquial expressions are frequently used in what eliciting testimony at trials?

Michael E. Geltner:

I think Your Honor we must assume that Mr. (Inaudible) prepared his witness and that he knew what the witnesses’ story was and he wanted to get to the jury accurately.

If I had — if I were the prosecutor in this case and had been advised by the FBI agents or the witness that what this man was a listening post, it seems to me the question I would’ve asked is “Did you ever hear anything while you’re in the cell of Mr. Henry?”

We don’t see that question and because we don’t see that I think we can assume that the totally of the record reflects the facts as described to the prosecutor by the — either the agents or (Voice Overlap) —

William H. Rehnquist:

So, the case turns on the use of the word “tell” as opposed to overhear by the prosecutor in examining a witness on direct?

Michael E. Geltner:

The case does not completely turn on that but if the Court cares — if it is crucial to the Court’s decision as to whether or not this was overhearing as oppose to some efforts to draw the defendant act out it seems to me that the record supports that conclusion.

And then finally we have on Page 137 again, the use of the word “described” in the questions and answers and again “tell,” all of which seems to leave me to the conclusion that although we believe the proper reading of the Massiah decision of the two pre curiums and of Brewer is that the Government may not after formal adversary proceedings seek to obtain information from the accused without respecting the right to counsel if we have to find what’s tantamount to interrogation in this case under the circumstances of a jail cell, we got an adequate record to support the Court of Appeals in doing so.

Thank you Your Honors.

Warren E. Burger:

Mr. Frey.

Mr. Andrew L. Frey:

There’s just a couple of points.

I want to make clear what our position is.

It’s not that the informant can’t open his mouth.

It said the informant can’t lead the defendant to talk about the subject which he would not otherwise have talked about.

Now, with respect to Justice Marshall’s question of Professor Geltner, I think it’s quite clearly our view that we could send somebody down to the bar to listen because we expect him to make statements at the bar about the crime and we could use those statements without violating Massiah.

Our motive to acquire information in my view is clearly not enough in the Court unless we do something more that constitutes elicitation by us the Court is being led to what seems to me an extreme position and it is an extreme position which is not the defensible under the right to counsel rationale.

I did not hear Professor Geltner once to explain why the right to counsel is implicated in the listening post kind of situation.

The concept of interrogation did not —

Warren E. Burger:

I think we have your point Mr. Frey.

Mr. Andrew L. Frey:

Okay.

Warren E. Burger:

Thank you gentlemen the case is submitted.