Billy Gale HENRY, Appellant, v. UNITED STATES of America, Appellee, 590 F.2d 544

WINTER, Circuit Judge: After an unsuccessful appeal of his conviction for armed bank robbery in violation of 18 U.S.C. §§ 2113(

a) and (d), United States v. Henry, No. 73-1413 (4 Cir., Sept. 14, 1973) (unpublished), Billy Gale Henry moved to vacate his twenty-five year sentence pursuant to 28 U.S.C. § 2255. Among other grounds for relief, he claimed that, during his confinement after indictment and in the absence of counsel, incriminating statements were obtained from him by a cellmate acting as a government agent. The district court denied the motion, and on appeal the case was remanded for an evidentiary inquiry. Henry v. United States (4 Cir. 1977), 551 F.2d 306.

Affidavits submitted by the FBI agents in charge of the robbery investigation verified that one of Henry’s cellmates was employed by the government to monitor Henry’s statements. The district judge, nevertheless, again denied the motion to vacate. Because we conclude that Henry was denied his right to counsel, we reverse and direct that the motion to vacate be granted and Henry released from custody on the charge unless the government elects to try him anew. I. Following his indictment on a charge of armed bank robbery, Henry was incarcerated in the Norfolk City Jail.

Shortly thereafter, an FBI agent contacted Edward Nichols who was also an inmate at the Norfolk City Jail and who had been a paid informant of the FBI for over a year. Nichols advised the agent that Nichols was in the same cell block as Henry, as well as other federal prisoners awaiting trial. The agent then told Nichols'to be alert to any statements made by these individuals about the charges against them. Nichols was specifically warned not to initiate conversation with or question Henry regarding the bank robbery.

When the agent contacted Nichols again a few weeks later, Nichols reported that Henry had engaged him in conversation, that Henry had talked about the bank robbery charges, and that he had described how the bank robbery had occurred. Nichols was paid by the FBI for furnishing this information. At Henry’s trial, Nichols testified that Henry had admitted going to the bank prior to the robbery to see who opened the vault and he further admitted renting the house indicated on the rental receipt found in the getaway car. According to Nichols, Henry had also described the actual robbery to him.

Aside from Nichols’ testimony, the case against Henry consisted of: the testimony of another cellmate, Joseph Sadler, as to conversations in which Henry admitted robbing the bank; evidence that Henry, under an assumed name, rented the house where two of the three robbers, the money stolen, and the masks and clothes used in the robbery were found shortly after the crime; and evidence that Henry, again under an assumed name, ordered a crystal of the same frequency as one used in the police radio scanner found in the house where the two robbers were apprehended. II.

The sole issue presented in this case is whether the undisclosed government monitoring of Henry’s conversations after his indictment, while he was in custody and had not waived his right to counsel, violated Henry’s right to counsel under the sixth amendment. The resolution of this issue depends on the application of the rule established in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, a conversation between Massiah, who had been released on bail, and his co-defendant was recorded by government agents with the co-defendant’s consent.

During the conversation Massiah made incriminating statements which were later introduced at his trial. The Supreme Court reversed his conviction, holding that Massiah was denied the right to counsel when evidence was admitted “which federal agents had deliberately elicited from him after he had been indicted and in the absence of counsel.” 377 U.S. at 206, 84 S.Ct. at 1203.

The Court thought it inconsequential that Massiah was not confined at the time, for “ ‘if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.’ ” Id., quoting United States v. Massiah, 307 F.2d 62, 72 (2 Cir. 1962) (Hays, J., dissenting). There was no finding that any of the co-defendant’s actions, aside from his mere presence, had induced the damaging remarks.

Subsequently, several courts held that Massiah did not apply to all incriminating statements obtained by government agents after indictment and in the absence of counsel, but only to those statements induced by such agents. This refinement was summarily rejected by the Supreme Court in two per curiam opinions, McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 11 L.Ed.2d 682 (1965), and Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967). McLeod reversed a state court holding that Massiah was not applicable absent questioning or deception.

Similarly, Beatty overturned the Fifth Circuit’s determination that information volunteered to an unknown government informer was admissible despite Massiah. The facts of this case would be identical to those in Beatty except that Beatty was not in jail at the time of the interception. Because of the restrictive nature of the jailhouse setting, the instant case presents a far more compelling situation for the application of the Massiah rule. The government asserts that Brewer v.

Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), limited Massiah and its progeny to cases involving “interrogation.” In Brewer, a police detective enticed the defendant, a former mental patient and deeply religious person, to reveal the location of his victim’s body by suggesting to the defendant that a predicted snowfall would preclude the Christian burial of the victim.

Equating the “Christian burial speech” with “interrogation,” the Supreme Court declared that “the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.” 430 U.S. at 401, 97 S.Ct. at 1240. The Court noted, moreover, that there is no constitutional protection where no “interrogation” takes place. Id. at 400, 97 S.Ct. 1232.

Notwithstanding the several references to “interrogation” in the Brewer opinion, we do not think that Brewer limits Massiah to cases in which the government has directly questioned the accused about his participation in crime. In the first place, the Supreme Court cited McLeod, supra, with approval, 430 U.S. at 400, 97 S.Ct. 1232, in which Massiah was applied even though McLeod was not interrogated by the officers and he knew that they were officers. Secondly, “interrogation” is a relative term, and we agree with the Fifth Circuit in United States v.

Anderson, 523 F.2d 1192, 1196 (1975), that it is not restricted to formalized oral interrogation. An undisclosed government agent may effectively “interrogate” a defendant by simply engaging the defendant in a general conversation and if the response is a confession of guilt, the agent need not make any further more pointed inquiries. Miller v. California, 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332 (1968) (dissent from dismissal of certiorari).

In the instant case, even if we assume that Nichols obeyed his 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 confidence in Nichols that Henry bared his incriminating secrets to an undisclosed paid informer, we think that there was interrogation within the meaning of Brewer.

We hold therefore that Henry’s right to counsel was violated when the government proved incriminating statements made to his cellmate after his indictment and in the absence of counsel. III. The district court found that, even if Henry’s right to counsel was violated, admission of the incriminating statements was harmless error. While other evidence was introduced linking Henry to the robbery, we cannot say beyond a reasonable doubt that Nichols’ testimony did not influence the jury’s verdict. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

For these reasons, the judgment denying the motion under § 2255 is reversed, and the case is remanded with instructions that the motion be granted and Henry released from the charge against him unless the government elects to try him anew. REVERSED AND REMANDED. . The record is not clear as to whether, at the time the statements were obtained, counsel had been retained or appointed or whether the mere right to counsel had attached. The factual uncertainty is unimportant because the government does not dispute that Henry had not waived his right to counsel at the time of his conversations with his cellmate. .

The opinion of the Court of Appeals, however, indicated that the co-defendant had solicited information about the pending case. United States v. Massiah, 307 F.2d 62, 66 (2 Cir. 1962). . We express no opinion about the interception of prisoners’ conversations with non-govemment agents through electronic listening devices. See United States v. Hearst, 563 F.2d 1331 (9 Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978), in which the Ninth Circuit held that such interception did not violate the sixth amendment under Massiah.