COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

ATIF BEYAH SALEEM 

 OPINION BY 

v. Record No. 1823-95-4 JUDGE CHARLES H. DUFF 

 JANUARY 14, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

 Robert W. King, Jr., for appellant. 

 John H. McLees, Jr., Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 In a bench trial, Atif Beyah Saleem (appellant) was found 

guilty of robbery and the use of a firearm in the commission of 

robbery. Appellant contends on appeal that the trial court 

should have suppressed the statements he made to inmate Darryl 

Watkins because the statements were obtained in violation of his 

Sixth Amendment right to counsel. Appellant further argues that 

the evidence was insufficient to support his convictions. 

Finding no error, we affirm the convictions. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 On September 5, 1994, Lisa Mays was working as a cashier at 

Market Street restaurant in Woodbridge. At closing time, she 
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took the cash register drawer to the office to total the proceeds 

from the day and to perform paperwork. When she reached the 

office door, she was confronted by a man wearing a ski mask and 

pointing a gun at her. The man was short and stocky and wore 

black pants with a "bluish green" shirt. While Mays stood still, 

another man approached her from behind, pushed her into the 

office, and shut the door. The second man was taller and thinner 

than the first, was dressed all in black, wore a ski mask, and 

carried a handgun. Both men wore rubber gloves. 

 After the office door was shut, the men pointed with their 

guns to the cash register drawer and then down at a bag. The 

shorter of the two men took the money from the drawer, which 

totalled $2,300, and put it in the bag. The shorter man then 

pointed to the floor with his gun. Mays responded by lying face 

down on the floor. One of the men pressed a gun against Mays' 

back "real hard." Before the two men left, Mays saw the shorter 

man place his finger to his lips, which Mays interpreted as a 

command for her to remain quiet. As soon as she was certain the 

men were gone, Mays fled the office and contacted the police. 

The back door of the restaurant was later discovered unlocked. 

 No words were spoken during the robbery. Mays testified 

that she knew appellant and could recognize his voice because he 

had worked as a cook at Market Street. Appellant was no longer 

employed at the restaurant on the day of the robbery. The 

procedure conducted at the close of business at Market Street was 
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common knowledge among the restaurant employees. 

 At trial, the Commonwealth introduced the testimony of 

Watkins, who had been incarcerated with appellant prior to trial. 

Watkins testified that appellant told him the charge against him 

was the product of "entrapment" because during the robbery he was 

behind "this woman" with a gun, and that now she was saying she 

could identify him by his voice. Appellant told Watkins he had 

been wearing a mask, and he wondered how the woman could identify 

him because he had not spoken much during the robbery. Appellant 

also said he used to work at "The Market" restaurant, that he 

knew what time the money would be brought to the office, that he 

and a "young guy" waited in the office for a woman to bring in 

the cash register drawer, and that they had left the restaurant 

by the back door. Appellant said about $2,000 was taken in the 

robbery. 

 Appellant presented the testimony of two other inmates, who 

maintained that the conversation between appellant and Watkins 

had not occurred. 

 I. 

 At a hearing on appellant's motion to suppress, the 

Commonwealth presented evidence of the circumstances surrounding 

appellant's statement to Watkins. Watkins testified that he was 

sentenced on several felony convictions in September 1994, and 

had been serving his nine year sentence in the jail since that 

time. In January 1995, Detective Anthony Spencer visited 
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Watkins, who previously had asked to be moved to a different 

building. Spencer told Watkins that, while Watkins was in the 

other building, if "[he] hear[d] someone speaking about a 

case[,]" to "keep [his] ears open" and "get back with" Spencer. 

Spencer mentioned several specific cases, including a robbery 

case involving "Atif." However, Spencer did not tell Watkins any 

details about the robbery at the restaurant. 

 Watkins agreed to do as Spencer requested. Watkins was 

promised nothing in return for supplying information to the 

police, and had received no consideration at the time of the 

suppression hearing or the trial. Although he had been promised 

nothing, Watkins said he "hoped" some of his court costs would be 

"paid out of this." 

 A few days after his conversation with Spencer, Watkins was 

transferred to the building he had requested and was assigned to 

appellant's cellblock. Watkins had little conversation with 

appellant until late the following evening when Watkins, 

appellant, and other inmates were watching television together. 

Appellant stated spontaneously that his own case was similar to 

the television program they were watching, which involved what 

the inmates perceived as entrapment techniques used by the 

police. Appellant said although he had worn a mask, a woman 

supposedly could identify him by his voice. Appellant said he 

could not understand how he could have been identified because he 

had not spoken much during the robbery. During an ensuing 
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conversation involving Watkins, appellant revealed further 

details of the offense. 

 When Watkins subsequently reported this information to 

Spencer, Spencer did not promise Watkins any consideration in 

exchange. Watkins later was transferred out of the building 

where appellant was housed. 

 Appellant contends that his Sixth Amendment right to counsel 

was violated because Watkins, while acting as a government agent, 

deliberately elicited statements from him after indictment and in 

the absence of his attorney. The United States Supreme Court has 

"recognized a suspect's need to have counsel present during 

in-custody conversations with government informants." Lafon v. 

Commonwealth, 17 Va. App. 411, 422, 438 S.E.2d 279, 286 (1993) 

(citing United States v. Henry, 447 U.S. 264 (1980)). 

 The Sixth Amendment guarantees the accused, 

at least after the initiation of formal 

charges, the right to rely on counsel as a 

"medium" between him and the State. . . . 

[T]his guarantee includes the State's 

affirmative obligation not to act in a manner 

that circumvents the protections accorded the 

accused by invoking this right. 

Maine v. Moulton, 474 U.S. 159, 176 (1985). To constitute a 

violation of the suspect's Sixth Amendment right to counsel, "the 

statements in question must have been (1) deliberately elicited 

(2) by a government agent." United States v. Li, 55 F.3d 325, 

328 (7th Cir. 1995). Both of these prongs must be satisfied in 

order for a Sixth Amendment violation to result. See United 

States v. Taylor, 800 F.2d 1012, 1015 (10th Cir. 1986), cert. 
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denied, 484 U.S. 838 (1987). 

 The determination of whether an informant was acting as a 

government agent turns upon "the facts and circumstances of each 

case." Id. "[T]he protections of the Sixth Amendment right to 

counsel . . . are inapplicable when, after the right to counsel 

has attached, statements by a defendant are made to an individual 

who is not an agent for the Government, although he may be a 

Government informant." Id. An important component in 

determining whether an informant was also a government agent is 

the benefit the informant was promised as part of his agreement 

to provide information to the police. See Moulton, 474 U.S. at 

163 (informant received sentencing consideration upon pending 

charges); Henry, 447 U.S. at 266 (informant paid for useful 

information given to police). See also Thomas v. Cox, 708 F.2d 

132, 134-35 (4th Cir.), cert. denied, 464 U.S. 918 (1983). 

 In a factual situation similar to the present case, the 

Tenth Circuit of the United States Court of Appeals observed: 

 No agreement was made between [the informant] 

and the Government and no benefits accrued to 

[the informant] for his cooperation. Any 

benefits which [the informant] hoped to 

obtain were mere expectancies. We decline to 

infer an agreement between the Government and 

[the informant] merely from the placement of 

[the defendant] in [the informant's] cell. 

In the absence of any express or implied quid

pro quo underlying the relationship between 

[the informant] and the Government, and in 

the absence of any instructions or directions 

by the Government, . . . [the informant] was 

not a government agent. 

Taylor, 800 F.2d at 1016 (citation omitted). In fact, the 
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motives of an informant "cannot make him an agent of the police 

even if the police knew and understood that his motives probably 

were self-serving and related to getting police cooperation in 

his own case." Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th 

Cir. 1987), cert. denied, 488 U.S. 934 (1988). 

 In the present case, the evidence was uncontroverted that 

Watkins was promised, and he received, nothing in exchange for 

gathering information for the police. The only suggestion of a 

benefit to Watkins was his own statement that he "hoped" some of 

his court costs would be paid. Watkins' wishful thinking, 

however, did not create an agreement with Spencer that otherwise 

did not exist. Furthermore, although Spencer asked Watkins to 

keep his "ears open" about the robbery, Spencer did not instruct 

Watkins how to gain information about the offense, nor did he 

tell Watkins to question appellant. 

 Under these circumstances, we find that Watkins was not a 

government agent when appellant made the statements to him. 

Because one of the necessary prongs did not exist, appellant's 

Sixth Amendment right to counsel was not violated and the 

statements were admissible. For this reason, we need not decide 

whether Watkins deliberately elicited the statements from 

appellant. 

 II. 

 Appellant argues that the trial court should have rejected 

Watkins' testimony because Watkins' description of his 
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conversation with appellant was not credible. However, "[t]he 

weight which should be given to evidence and whether the 

testimony of a witness is credible are questions which the fact 

finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 

528, 351 S.E.2d 598, 601 (1986). 

 Appellant's description of the robbery to Watkins was 

consistent, in all significant respects, with Mays' testimony 

about the incident. According to appellant's statement, he and 

another man, while both were masked and armed, robbed a woman at 

"The Market" restaurant, where appellant previously had been 

employed. Mays corroborated all of these details. Appellant 

told Watkins he had not spoken "much" during the robbery so the 

woman could not identify his voice. Indeed, by maintaining 

silence appellant prevented Mays, who was familiar with his 

voice, from later identifying him. Appellant told Watkins he had 

left the restaurant by the back door, which was discovered 

unlocked after the robbery. The amount of money appellant told 

Watkins he obtained in the crime was nearly the same as that 

actually taken during the robbery. Furthermore, the 

circumstances strongly suggested that the robbery was committed 

by someone with knowledge of the restaurant's procedures, such as 

a former employee. 

 Considering these facts, the evidence was sufficient to 

prove beyond a reasonable doubt that appellant committed the 

robbery and the associated firearm offense. Thus, the trial 
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judge did not err in refusing to strike the evidence. 

 For the foregoing reasons, we affirm appellant's 

convictions. 

 Affirmed.