IN THE SUPREME COURT OF IOWA

No. 13–0739

Filed June 30, 2016

Amended September 20, 2016

STATE OF IOWA,

Appellee,

vs.

JUSTIN ALEXANDER MARSHALL,

Appellant.

On review from the Iowa Court of Appeals.

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

McPartland, Judge.

The State seeks further review of a court of appeals decision 

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

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND 

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND 

CASE REMANDED.

Kent A. Simmons, Bettendorf, for appellant.

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

Attorney General, Janet Lyness, County Attorney, and Meredith RichChappel, Assistant County Attorney, for appellee.
2

APPEL, Justice.

In this case, we consider whether the State violated Justin 

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

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

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

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

counsel by using a jailhouse informant to obtain incriminating 

information when Marshall was represented by counsel. Finding the 

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

conviction.

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

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

criminal conduct violated due process of law because the instructions 

were not supported by substantial evidence. The court of appeals 

rejected Marshall’s due process claim.

We granted further review. We retain discretion to consider all 

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

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

(Iowa 2009). In our discretion, we consider only Marshall’s right-tocounsel challenge. The court of appeals ruling on the due process 

challenge to jury instructions stands.

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

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

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

trial.

I. Procedural and Factual Background.

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

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

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

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

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

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

and the sign. Versypt died at the scene.

Charles Thompson and Marshall were both staying at an 

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

murder. In February 2010, the State originally charged Thompson1 with 

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

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

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

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

was filed in Johnson County District Court the following day.

B. Meetings with Confidential Informants Prior to and After 

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

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

Muscatine County Jail. They told Johnson they sought information on 

Charles Thompson, Courtney White, and Justin Marshall in connection 

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

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

was immediately sent to the Muscatine County Jail. Marshall was 

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

subsequent contacts with Johnson and two other inmates—Earl 

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

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

State declined to retry Thompson.

 
4

inmates had obtained information about the crime from Marshall while 

he was incarcerated in Muscatine.

C. Disclosure of Relationship with Confidential Informants. In 

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

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

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

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

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

three inmates and the State.

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

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

two letters from Freeman to Detectives Clarahan and Smithey dated 

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

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

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

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

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

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

that Detectives Clarahan and Smithey advise federal prosecutors and 

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

prosecution of Justin Marshall.”

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

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

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

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

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

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

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

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

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

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

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

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

Thompson and Marshall cases.

D. Trial Testimony and Midtrial Motion to Suppress.

1. Opening trial testimony of Detective Smithey. Detective Smithey 

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

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

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

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

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

Johnson, Johnson had a cooperation agreement with the government. 

Johnson had already pled guilty and was awaiting sentencing. Detective 

Smithey testified that when the police interview someone in connection 

with a cooperation agreement, they would not provide “specific 

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

Detective Smithey stated it was his understanding that providing specific 

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

are incarcerated.”

Detective Smithey testified he told Johnson at the July 12 meeting 

that the State was interested in information related to the Versypt 

murder and particularly interested in information about Charles 

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

regarding what Johnson would receive in exchange for the information, 

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

Attorney would be advised of any information provided. Detective 
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Smithey testified that, pursuant to the July 12 meeting, Johnson “was 

trying to provide information that would be used to determine what 

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

reasonable to assume that Johnson would communicate the State’s 

interest in Marshall to other cooperating witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

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

not explicitly mention either the Sixth Amendment of the United States 

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

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

reconvened the hearing to ask Marshall and the State for relevant 

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

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

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

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

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

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

called Detectives Smithey and Clarahan as witnesses.

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

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

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

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

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

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

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

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

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

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

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

particular.

Detective Smithey testified that on September 12 Johnson’s 

attorney informed him that Johnson now had information about the 

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

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

about statements made by Marshall while they were incarcerated in 

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

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

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

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

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

Detective Smithey further testified that he met with Freeman on 

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

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

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

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

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

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

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

happened to see Martin after completing his session with Freeman. 

Detective Smithey stated he had previously done proffer interviews with 

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

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

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

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

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

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

anything” to gather further information from Marshall.

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

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

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

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

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

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

placed in the same cellblock as Marshall. Detective Clarahan confirmed 

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

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

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

Detective Clarahan told the court she met with Freeman along with 

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

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

Freeman to do anything on behalf of the State.
9

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

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

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

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

communications between Marshall and the informants about the crime.

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

Detectives Smithey and Clarahan, the district court overruled the motion 

to suppress. The court recognized and the State conceded that 

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

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

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

informant took some action beyond merely listening that was designed 

deliberately to elicit incriminating remarks.” The court concluded that 

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

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

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

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

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

cellblock in the Muscatine County Jail. Freeman testified that Marshall 

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

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

According to Freeman, inmates Antonio Martin and Richard Sandifer 

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

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

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

was involved in sending Marshall to him.

Freeman stated that he wrote the motion for new counsel for 

Marshall, which Marshall filed with the court. Freeman declared that 
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Marshall told him about Charles Thompson being tried for Versypt’s 

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

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

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

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

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

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

work.

Freeman testified Marshall told him he intended to rob Versypt, 

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

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

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

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

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

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

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

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

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

The prosecutor asked Freeman whether he in any way tried to 

push Marshall to make admissions. Freeman responded,

I’d say yes. After he started to—admitting to doing it, yeah, I 

would probably say, yeah, I did push him to tell me 

information. . . . Once I realized that I thought he actually 

did it, I was, you know, wanting to know what happened.

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

to manufacture methamphetamine and that he had not been sentenced 

when he contacted the detectives about Marshall in October 2011. 

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

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

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

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

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

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

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

him get a reduction in his sentence in the future.

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

Broadway Condominiums when Versypt was murdered. Johnson said he 

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

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

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

Thompson, were responsible for the crime.

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

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

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

other investigations. Johnson said he had provided such assistance to 

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

his coconspirator. As part of his cooperation agreement, Johnson 

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

meeting, Detective Smithey asked Johnson if he knew Marshall before 

Johnson had been arrested.

Johnson testified that he was placed in segregation at the 

Muscatine County Jail because of jailhouse rule violations. According to 

Johnson, Marshall was also in segregation at that time, and over a tenday period, they interacted during their hour-a-day reprieve from solitary 

confinement when they were permitted to leave their cells.

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

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

State asked Johnson a series of questions limited to information that

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

questions, Johnson testified,

[H]e told me, he say that they didn’t have no evidence on him 

and they didn’t have no witnesses. The only witnesses they 

had was the police. . . . He told me that he—he left Iowa 

City. He went to Burlington because the police kept 

bothering him and other people was implicating his name in 

a murder. . . . He said when the police came down there to 

Burlington, harassing him, threatening him he wasn’t going 

to see his family again if he didn’t tell them what happened, 

he told me that’s when he knew they didn’t really have 

evidence on him because they had previously before let him 

go, so that’s why they left and went to Burlington.

. . . at first he said that they had nothing on him, and 

then he said all they had was a little gun powder on him. . . . 

He was looking at a lot of time. . . . He told me that him, 

Weezy [Thompson], and Calvin was in the hallway, they was 

all in the hallway playing dice. After a while Charles 

Thompson left and went inside his apartment. That’s when 

he came up with the idea that he wanted to rob the 

landlord. . . . He say he wanted to rob the landlord because 

he knows some people pay with money and some pay with 

cash. . . .

He said, after Weezy went into the house, when he 

came up with the idea, the robbery went wrong. . . . The 

landlord got shot. . . . All he said was it was real—the shot 

was loud. It was loud in the hallway, and that kind of froze 

him up, and after that he ran out the back to get away from 

the scene. . . . When he came back in the building, he was 

knocking on the door, but he was whispering because he 

didn’t want no one to know he was in the hallway. . . . 

Charles Thompson’s trial was coming up, and he said he was 

supposed to testify at his trial, and if he do, he was going to 

say that he [Thompson] did it. . . . To shift the weight off 

himself.

Although Johnson thus testified extensively and in considerable detail 

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

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

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

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

Marshall provided him with the information.

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

federal sentence and entered into a plea and cooperation agreement in 

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

said that he had been interviewed twice regarding information he had 

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

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

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

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

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

month.

Martin testified that he had not received a reduction for providing 

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

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

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

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

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

Condominiums neighborhood and knew Marshall and Thompson. 

Martin testified his last communication with Marshall was around 

September 2009. 

After Marshall arrived at the Muscatine County Jail, Martin 

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

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

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

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

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

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

testifying against one of his codefendants. Martin remembered that they 

had additional conversations about Marshall’s situation. As with 

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

Marshall said to him. Martin testified Marshall told him that

the person’s—victim’s fingerprints was on the gun, that the 

bullet went through his hand, through his face, and there 

was a drill, a wallet and something else next to the body or 

something that they found, and there was no money missing 

out of the wallet . . . [h]e was saying it’s a robbery . . . .

Martin was next asked whether the two talked about Marshall 

writing something down. Martin testified that they had discussions

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

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

regarding the crimes of manslaughter and armed robbery. Martin 

testified,

And I told him, you know, you might have to tell your side of 

the story if you’re going to get a lesser charge. So he went to 

write the story down, saying use me [Martin] as a jailhouse 

snitch and I can get your story out and it might help both of 

us. So he went and wrote it down and gave me what was his 

version of what happened.

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

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

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

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

Martin testified that Marshall told him information about the crime 

for which Marshall was charged. According to Martin,

[H]e was giving me one account and he was saying that he 

was going to take the gun to sell it to somebody and run 

downstairs. Then . . . he started switching his story up, he 

started saying that he was at—at Junior’s house playing a 

game and got home. He was going to go downstairs to get 

him something to eat, you know. He was just like arranging 

his story. That’s when I told him just write it down.
15

Martin stated that Marshall provided him further details about the 

crime:

He said he went downstairs and somebody came up behind 

him saying something, coming, approaching him, and he got 

scared and he turned around and pulled the gun from his 

waistband. . . . He said it all happened so quick, you know. 

The gun went off and he dropped it and picked it back up 

and wiped it off and dropped it again and ran.

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

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

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

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

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

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

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

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

During the conversation with his attorney, Detective Smithey entered the 

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

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

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

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

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

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

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

legal pad to Martin.

Martin testified that he knew Johnson and Freeman. Although he 

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

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

admitted, however, that he and Freeman discussed what Marshall 

should include in his written statement. 
16

Through Martin, the State offered two exhibits purporting to be 

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

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

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

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

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

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

mistake of law in what appeared to be Marshall’s handwriting. On crossexamination, Martin admitted that Marshall sought information from 

him about the legal definition of manslaughter. Martin repeated once 

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

acknowledged that the Johnson County Attorney could write a letter to 

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

testifying against Marshall.

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

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

special interrogatories. No juror found Marshall guilty under the theory 

of premeditation, willfulness, and deliberation. Seven jurors found 

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

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

found Marshall guilty on the theory of joint criminal conduct.

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

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

engaged in prejudicial misconduct by withholding the two letters that 

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

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

prevented Marshall from making an effective suppression motion by 

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

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

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

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

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

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

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

court,

[T]he . . . Defendant had not established the informants were 

government agents at the time the information was solicited, 

a necessary requirement. . . . Rather, from the evidence in 

the record, it appear[ed] the inmates collected information 

prior to and without being approached by the police and 

later turned it over to the officers. 

Because the court concluded the inmates were not governmental agents 

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

was not entitled to a new trial.

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

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

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

Detective Smithey asked Johnson to get information about Marshall’s 

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

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

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

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

Therefore, the court held statements Marshall made to Johnson should 

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

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

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

from Marshall, and the suggestion that Johnson must have 
18

communicated with Freeman or Martin about Marshall was not sufficient 

to prove agency. 

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

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

review because the harmlessness of the error was debatable. A 

concurrence emphasized that the placement of Marshall, Freeman, 

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

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

dissent focused on the question of deliberate elicitation. The dissent 

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

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

The State applied for further review, which we granted.

II. Standard of Review.

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

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

On a motion to suppress evidence obtained in violation of a 

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

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

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

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

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

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

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

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

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

demonstrate an infringement of the Sixth Amendment, a defendant must 

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

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

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

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

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

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

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

action).

III. Preliminary Issue: Consideration of Trial Testimony on 

Merits of Motion to Suppress. 

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

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

trial may be considered in reviewing the merits of a previously 

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

04 (Iowa 2009).

IV. Claimed Invasion of Right to Counsel Through Use of 

Jailhouse Informant.

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

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

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

effective assistance of counsel is critical to the fairness of the

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

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

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

surreptitious interrogations as well as those conducted in the 

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

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

250).

The use of jailhouse informants to obtain information from 

defendants represented by counsel is problematic for a number of 
20

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

an unusual environment where a sense of camaraderie can mask real 

interests, where defendants may be particularly vulnerable, and where 

scheming and bravado are higher on the hierarchy of values than 

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

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

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

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

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

defendant] particularly susceptible to the ploys of undercover 

Government agents.”).

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

sometimes substantially—for providing evidence against a defendant 

raises substantial questions of reliability. The Supreme Court noted over 

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

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

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

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

jailhouse informers particularly, the United States Court of Appeals for 

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

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

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

recently, the Fourth Circuit has observed that use of jailhouse 

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

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

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

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

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

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

1380 (2014) [hereinafter Covey].

As the recent work of the Innocence Project demonstrates, 

jailhouse informants have played a significant role in convicting innocent 

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

false informant testimony supported the wrongful conviction in twentyone percent of the cases. See Jim Dwyer, Peter Neufield, & Barry 

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

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

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

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

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

at 1418.

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

Supreme Court has responded by relying primarily on effective crossexamination of informants. Hoffa v. United States, 385 U.S. 293, 311, 87 

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

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

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

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

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

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

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

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

violates due process).

Finally, the use of jailhouse informants undercuts the role of 

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

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

defendants have undue confidence in their ability to game the system 

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

assist the defendant in developing an effective defense that may be 

impaired by ill-considered and imprecise statements made in the 

freewheeling jailhouse environment. See generally James J. Tomkovicz, 

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

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

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

The Massiah Right to Exclusion: Constitutional Premises and Doctrinal 

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

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

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

books are packed with occasions in which the defendant has been 

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

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

it is no more unfair to use the evidence [the defendant] 

exposed through his lack of guile than it is to turn against 

[the defendant] clues at the scene of the crime that a 

brighter, better informed, or more gifted criminal would have 

hidden.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kaufman, The Commission on Proceedings Involving Guy Paul Morin: 

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

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

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

reliability, have given rise to requiring some corroboration of jailhouse 

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

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

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

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

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

stice_section_newsletter/crimjust_policy_my05108b.authcheckdam.pdf.

B. Positions of the Parties. Marshall argues the record 

establishes that the State violated Massiah by employing informants to 

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

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

to provide information that would be used to determine what reduction 

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

list of suspects. Marshall notes that Johnson initiated the conversation 

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

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

information on him. 

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

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

received incriminating information from Marshall. Marshall argues, 

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

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

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

provided information to Detective Smithey in the past under a 

cooperation agreement. Marshall points out that Detective Smithey 

testified that it was probably reasonable to assume that Johnson was 

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

extraordinary coincidence that after Detective Smithey met with Johnson 

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

have extensive notes on a legal pad written by Marshall.

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

know Detective Smithey prior to providing information on Marshall when, 

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

Smithey testified that he had interviewed Martin in connection with 

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

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

that Freeman testified that Martin and another inmate named Sandifer 

sent Marshall to him. Freeman and Martin then extensively infiltrated 

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

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

present it to Marshall’s lawyer.

Marshall asserts that under Massiah and its progeny there is no 

requirement that Johnson be given specific instruction regarding how to 

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

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

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

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

informant would initiate conversations in light of the incentives to obtain 

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

Marshall claims these principles were reaffirmed in Moulton. See 474 

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

Marshall then addresses the most recent United States Supreme 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

that the incriminating statements made to them should be suppressed 

under Massiah and its progeny.

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

not establish that the informants were acting as government agents and 

does not establish that they deliberately elicited the incriminating 

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

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

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

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

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

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

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

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

there was no promise of pay for successfully obtaining information. 

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

be considered agents of the State.

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

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

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

murder. The State emphasizes that Johnson testified that he never 

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

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

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

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

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

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

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

decisions is secret interrogation by investigatory techniques that are the 

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

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

show deliberate elicitation. 

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

between the State and Johnson occurred before Johnson’s Sixth 

Amendment rights attached. Yet the State acknowledges that in the 

proceedings below, the county attorney agreed with the district court 

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

interacted with the defendants.
27

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

Government Informants Against Defendants Represented by 

Counsel. There are four important United States Supreme Court cases 

that establish a general framework for determining when the use of 

government informants violates the accused’s Sixth Amendment right to 

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

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

where a government agent deliberately elicited information from a 

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

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

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

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

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

listened to the conversation between the confederate and the defendant. 

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

“made several incriminating statements during the course of the 

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

incriminating conversations were introduced into evidence at trial. Id.

The Supreme Court held that the incriminating conversations were 

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

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

the Sixth Amendment right to counsel by use of his own incriminating 

words, “which federal agents had deliberately elicited from him after he 

had been indicted and in the absence of his counsel.” Id. at 206, 84 

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

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

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

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

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

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

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

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

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

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

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

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

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

the defendant convicted, an appellate court reversed and remanded for 

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

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

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

hearing, the FBI agent submitted an affidavit which stated,

I recall telling Nichols at this time to be alert to any 

statements made by these individuals [the federal prisoners] 

regarding the charges against them. I specifically recall 

telling Nichols that he was not to question Henry or these 

individuals about the charges against them, however, if they 

engaged him in conversation or talked in front of him, he 

was requested to pay attention to their statements.

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

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

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

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

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

and confidence with Henry such that Henry revealed incriminating 

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

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

government deliberately elicited incriminatory statements from the 
29

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

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

Nichols was acting under government instructions as a paid informant. 

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

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

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

under indictment at the time he was engaged in conversations by 

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

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

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

affirmative steps to secure incriminating information is accepted, he 

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

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

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

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

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

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

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

conversation.’ ” Id.

The Henry Court further noted that no inquiry was made in 

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

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

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

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

information that an accused would not intentionally reveal to persons

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

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

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

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

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

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

The Court did not provide a precise formula for determining when

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

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

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

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

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

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

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

emphasize the fact that Nichols and Henry shared facilities and that 

Nichols had ingratiated himself through his “conduct and apparent 

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

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

of whether there can be deliberate elicitation when the government 

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

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

While five members joined the majority opinion, Justice Powell 

wrote a concurring opinion in Henry. Justice Powell emphasized that 

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

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

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

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

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

presence of a jailhouse informant who had been instructed to overhear 

conversations and to engage a criminal defendant in some conversations 

would not necessarily be unconstitutional.” Id.
31

In Moulton, an informant met with the defendant—his 

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

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

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

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

defendant in active conversation about the upcoming trial was virtually 

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

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

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

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

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

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

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

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

In Kuhlmann, the Supreme Court considered a second federal 

habeas corpus petition brought by a state prisoner who claimed a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

petition challenging the introduction of Lee’s testimony on Massiah

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

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

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

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

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

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

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

relief on the ground that Henry was factually distinguishable and that 

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

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

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

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

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

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

fact were presumptively correct in a federal habeas corpus proceeding 

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

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

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

“to elicit information” from the respondent. Id.

Wilson appealed and another divided panel of the Second Circuit 

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

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

indistinguishable from Henry and that Henry was fully applicable 

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

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

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

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

L. Ed. 2d at 374.

In Kuhlmann, the majority concluded that there was no Massiah

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

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

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

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

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

further noted that in Henry the informant had stimulated conversations 

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

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

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

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

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

2630, 91 L. Ed. 2d at 384–85.

The Court also emphasized that “the primary concern of the 

Massiah line of decisions is secret interrogation by investigatory 

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

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

the police deliberately placed the informant in the cell with the 

defendant, the Kuhlmann majority appeared to answer the question 

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

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

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

at 382–83.

The Kuhlmann Court then considered whether there was deliberate 

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

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

Circuit failed to give appropriate deference in the federal habeas corpus 

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

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

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

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

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

that these state court findings were entitled to a presumption of 

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

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

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

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

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

Justice Brennan, along with Justices Marshall and Stevens, 

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

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

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

Henry found incriminating statements were deliberately elicited when a 

jailhouse informant followed instructions to obtain information without 

directly questioning Henry and without initiating conversations 

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

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

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

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

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

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

123 n.10 (1980)).

Justice Brennan emphasized that in Henry, the Court stressed the 

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

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

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

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

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

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

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

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

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

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

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

foreseeable that respondent would make incriminating statements 

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

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

relationship of cellmate camaraderie with the respondent and 

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

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

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

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

After Kuhlmann, the question arose whether its language regarding 

what constituted deliberate elicitation should be interpreted as a 

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

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

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

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

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

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

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

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

Because Kuhlmann essentially held for the state on procedural grounds 

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

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

as mere dicta.

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

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

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

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

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

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

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

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

743, 764–65 (1986).

Yet in reading the majority and dissenting opinions, they both 

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

however, are viewed differently. The majority considered the informant 

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

active role by stimulating conversation about the crime and by 

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

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

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

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

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

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

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

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

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

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

1. Introduction. Applying the principles of Massiah and its 

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

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

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

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

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

requires us to confess our difficulty in reconciling several of these 

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

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

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

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

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

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

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

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

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

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

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

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

2. Requirement of informant agency.

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

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

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

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

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

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

Sixth Amendment purposes. But the question arises whether a jailhouse 

informant may be considered an agent for Sixth Amendment purposes in 

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

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

an implied agency relationship and jailhouse “entrepreneurs” who seek 

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

“jailhouse marketplace” of informant testimony. The cases have 

struggled to make this important distinction.

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

under Massiah does not rely too heavily on traditional principles of 

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

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

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

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

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

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

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

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

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

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

to require a formal express agreement before an informant may be 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the state enters into somewhat vague agreements with informants that 

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

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

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

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

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

reported conversations to state authorities in which the defendant 

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

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

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

receiving the information, the authorities then entered into an agreement 

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

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

allowed the testimony on information obtained prior to the first meeting

with the authorities, but suppressed information gathered afterwards on 

Massiah grounds. Id. at 119.

c. Requirement of express or implied instructions. Moulton and 

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

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

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

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

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

failure to follow instructions is foreseeable in light of the strong 

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

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

Nonetheless, the slightly different question of whether explicit 

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

for purposes of the Sixth Amendment has sometimes reoccurred in the 

caselaw.
41

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

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

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

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

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

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

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

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

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

The dissent emphasized that the government did not obtain statements 

“by luck or happenstance” but as the result of a meeting purposefully 

arranged by the prosecutor to “circumvent[ ] the accused’s right to have 

counsel present in a confrontation between the accused and a state 

agent.” Id. at 926 (quoting Robinson v. Clarke, 939 F.2d 573, 576 (8th 

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

The formalism of the majority in Johnson seems inconsistent with 

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

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

125. As noted by the Eleventh Circuit, “There is, by necessity, no brightline rule for determining whether an individual is a government agent for 

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

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

noting that if explicit instructions were required to establish agency for

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

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

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

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

One state court case dramatically illustrates the shortcomings of a 

formalistic Johnson approach. In Commonwealth v. Moose, the 

Pennsylvania Supreme Court considered a case where the informant did 

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

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

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

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

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

at 1271.

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

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

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

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

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

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

direction of the government pursuant to a preexisting arrangement, with 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sentence is a sufficient inducement to support a Massiah violation.

e. Distinction between informers and entrepreneurs. Even if 

instructions are not necessarily required for express or implied agency, 

the cases generally draw a distinction between informants acting on 

behalf of the government and those who act without government 

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

who volunteers information to authorities based on “an unencouraged 

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

Delaware Supreme Court offered a similar viewpoint, noting that the 

Sixth Amendment “does not protect a defendant against private 

individuals who wish to profit at his expense.” Jackson v. State, 684 

A.2d 745, 752 (Del. 1996). Such persons, in the parlance of courts 

grappling with Massiah issues, are commonly referred to as 

entrepreneurs. See York, 933 F.2d at 1356.

In some cases, it is undisputed that the informer has no agency 

relationship with the government. For instance, in LaBare, one of the 

informants was “not even arguably a government agent” when he 

gathered incriminating statements. 191 F.3d at 66. Whether an 

informant has crossed the line between agency and entrepreneurship, 

however, depends on the facts. A number of cases have found, for 

instance, that what began as entrepreneurship may develop into an 

agency relationship. See, e.g., Wesbrook, 29 S.W.3d at 119. Sometimes, 

however, an entrepreneur who becomes an agent may still not violate 

Massiah if, in his subsequent contact with the defendant, he does not 

engage in acts of deliberate elicitation. See Birbal, 113 F.3d at 346.
44

f. Requirement of specific target. In some cases, courts have held

that an informant becomes a government agent only when instructed by 

the government to get information about a particular defendant. See

LaBare, 191 F.3d at 65; Moore, 178 F.3d at 999; Birbal, 113 F.3d at 346; 

In re Benn, 952 P.2d 116, 138–39 (Wash. 1998). Other courts, however, 

have come to a different conclusion and do not require targeting of 

specific individuals. Brink, 39 F.3d at 423–24; York, 933 F.2d at 1356–

57; United States v. Sampol, 636 F.2d 621, 638 (D.C. Cir. 1980) (per 

curiam); Murphy, 862 N.E.2d at 40; Moose, 602 A.2d at 1270.

The problem with a requirement of a specific target is that it allows 

“informant[s] at large” to seek opportunities within the jailhouse at their 

discretion. Sampol, 636 F.2d at 638. The invasion of an incarcerated 

prisoner’s Sixth Amendment rights is not affected by whether the 

informant is operating at large or with a specific target. As noted in 

Moose, “The vast majority of people in county jail are charged with crimes 

and awaiting trial . . . .” Moose, 602 A.2d at 1270. As a result, 

deliberately eliciting incriminating information from any of them violates 

Massiah. Moose, 602 A.2d at 1270.

As noted in York, the relationship between the state and its 

informers is often a symbiotic one. 933 F.2d at 1357. According to the 

York court, it would be inconsistent with the Sixth Amendment to allow 

the government to send out informants on “a reconnaissance patrol . . . 

to gather evidence.” Id. at 1356. The court further noted “[w]hether the 

principal exercises its control strictly, by targeting specific individuals, or 

casually, by loosing an informant on the prison population at large, is 

irrelevant.” Id. at 1357. A state’s use of an at-large informant is at least 

somewhat inconsistent with the affirmative duty of prosecutors in 
45

Moulton to avoid interference with the Sixth Amendment rights of 

defendants. 474 U.S. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at 492–93.

g. Infiltration of cell. There is authority for the proposition that 

placement of a friend or acquaintance with a defendant in the jailhouse 

is at least some evidence of agency. See Matteo, 171 F.3d at 894–95. 

Such action by the state “intentionally creat[es] a situation likely to 

induce [the accused] to make incriminating statements without the 

assistance of counsel” and is a significant factor to a finding of agency. 

Id. at 895 (quoting Henry, 447 U.S. at 274, 100 S. Ct. at 2189, 65 

L. Ed. 2d at 125); see also Brink, 39 F.3d at 424 (placing informant in 

cell with pretrial detainee could represent a deliberate effort to obtain 

incriminating evidence in violation of Sixth Amendment). As noted in 

Kimball, if the state placed an informant back with the defendant after he 

expresses a willingness to cooperate, the state intentionally “creat[ed] a 

situation likely to induce” incriminating statements. United States v. 

Kimball, 884 F.2d 1274, 1278 (9th Cir. 1989). Under these 

circumstances, the government takes the risk that the informant will 

engage in deliberate elicitation. See id.

Yet there is authority for the proposition that mere placement of a 

person in a cell with a defendant, standing alone, is not sufficient to 

establish agency. Taylor, 800 F.2d at 1016 (majority opinion). Yet even 

in more cautious courts, the placement of an informant in a jail in 

proximity to a defendant, as in Henry, is a factor to be considered in 

determining whether the informant should be regarded as an agent of the 

state for Sixth Amendment purposes. See, e.g., Henry, 447 U.S. at 274, 

100 S. Ct. at 2189, 65 L. Ed. 2d at 124; Brink, 39 F.3d at 424.

h. Summary. No talismanic test, mechanical checklist, or 

mathematical formula exists for determining whether an informant is an 
46

agent for Massiah purposes. Instead, a court must determine—under all 

the facts and circumstances—whether the relationship between the state 

and an informant is such that the state has violated its affirmative duty 

under Moulton to protect the Sixth Amendment rights of defendants.

3. Approach to deliberate elicitation.

a. Introduction. A second important issue in the federal caselaw is 

the meaning of the elusive phrase “deliberate elicitation.” Before 

exploring the meaning of the term, we must first note that it is clear that 

deliberate elicitation is not the same as an interrogation. Fellers v.

United States, 540 U.S. 519, 524, 124 S. Ct. 1019, 1022–23, 157 

L. Ed. 2d 1016, 1022–23 (2004); see also Brewer, 430 U.S. at 399, 97 

S. Ct. at 1240, 51 L. Ed. 2d at 436–37 (stating that the detective “set out 

to elicit information from [the defendant] just as surely as—and perhaps 

more effectively than—if he had formally interrogated him”). Yet

Kuhlmann suggests that “the primary concern” of Massiah and its 

progeny is to protect defendants from “secret interrogation by

investigatory techniques that are the equivalent of police interrogation.” 

477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384.

In Henry, the Court seemed to embrace a three-part test to 

determine if the relationship between the government and the jailhouse 

informant was “likely” to elicit statements from a defendant in the 

absence of counsel. 447 U.S. at 270–71, 100 S. Ct. at 2186–87, 65 

L. Ed. 2d at 122. The three prongs of the test were the relationship 

between the state and the informant, the fact that the informant and the 

defendant were both incarcerated, and the fact that the informant was 

under indictment. Id. There is nothing in Henry that requires a 

defendant to show what actually happened at the jailhouse between the 

informant and the defendant. Instead, the Court in Henry held the 
47

creation of an environment likely to lead to elicitation was sufficient to 

establish the constitutional violation. Id. at 271–72, 100 S. Ct. at 2187, 

65 L. Ed. 2d at 123. Yet in Henry it was clear that the informant 

engaged in some conversations with the defendant. Id. at 271, 100 S. Ct. 

at 2187, 65 L. Ed. 2d at 122–23.

In Kuhlmann, however, the Supreme Court focused more 

extensively on the deliberate-elicitation test. 477 U.S. at 459, 106 S. Ct. 

at 2629–30, 91 L. Ed. 2d at 384–85. There is language in Kuhlmann that 

seems to require that a defendant raising a Massiah challenge must 

specifically show that the jailhouse informant took active steps to elicit 

uncounseled statements by the defendant. Id. (stating that the 

defendant must show that “the police and their informant took some 

action” (emphasis added)). In short, under this theory of Kuhlmann,

merely establishing that the state created an environment where 

elicitation of an uncounseled defendant was likely would not be 

sufficient. Under this more expansive view of Kuhlmann, the defendant 

must show, as a matter of fact, that the jailhouse informant was more 

than a “passive listener.” Accordingly, under this understanding, active 

participation of some kind by the informant is required. An important 

issue under this reading of Kuhlmann is identifying what type of actions 

by a jailhouse informant are sufficient for a finding of deliberate 

elicitation and what actions may be regarded as merely incidental and 

constitutionally insignificant.

b. Pure “listening post” cases. There are occasions, of course, 

where the jailhouse informant merely overhears incriminating statements 

but does not participate at all in an interaction directly with the 

defendant. Where the evidence shows that the informant truly was a 

passive listening post—when he simply listened to conversations between 
48

defendant and another inmate—courts do not find a Sixth Amendment 

violation. For instance, in United States v. Mourad, the court found no 

deliberate elicitation when the government agents overheard the 

defendant make incriminating statements to his wife on the telephone. 

729 F.2d 195, 201 (2d Cir. 1984). This was a classic example of 

obtaining incriminating statements by luck or happenstance.

But the boundary between listening-post cases and cases involving 

deliberate elicitation is fraught with border disputes. For instance, 

consider two cases from Kentucky. In Thurman v. Commonwealth, the 

Kentucky Supreme Court concluded that the informant was, in fact, a 

passive listening post. 975 S.W.2d 888, 895–96 (Ky. 1998). But in 

McBeath, the Kentucky Supreme Court rejected a claim that an 

informant—who recorded statements by a defendant—acted as a passive 

listening post when the informant engaged in conversations about the 

offense and discussed trial strategy with the defendant. 244 S.W.3d at 

29, 34.

In fact, in many cases where courts found the informants to be 

acting as listening posts, the informant was not literally silent but 

instead engaged in some communication with the defendant. The 

question in the caselaw is whether such communication was active or 

passive. See Thomas, 708 F.2d at 136 n.5; Ammeter, 72 Iowa L. Rev. at 

1431–36.

c. Requirement that informant initiate discussion leading to 

incriminating statements. It is sometimes claimed that an informant 

must initiate the conversation about the crime in order to violate 

Massiah and its progeny. But Henry made clear a Massiah violation may 

occur even when the defendant initiates discussion of criminal conduct. 

Henry, 447 U.S. at 271–72, 100 S. Ct. at 2187, 65 L. Ed. 2d at 123; Bey 
49

v. Morton, 124 F.3d 524, 530 (3d Cir. 1997). But deliberate elicitation is 

not a question of timing—it is a question of substance. Faithfulness to 

Henry requires that there be no escape from honoring the defendant’s 

right to counsel simply because the informant initiates the discussion of 

the general subject matter of the crime. The better view is that there is 

no requirement that the informant begin the conversation if he or she 

subsequently encourages the defendant to provide additional 

incriminating information by his or her responses.

d. Active vs. passive communication: responsive remarks. Where 

informants literally do not take part in the conversation, but only listen, 

the cases are relatively easy. More difficult are situations where the 

jailhouse informants are not completely silent bystanders but have some 

degree of direct interaction with the defendant. The question then 

becomes, under the expansive view of Kuhlmann, whether the actions of 

the informant were active or passive. Sometimes the courts distinguish 

casual remarks from statements designed to deliberately elicit 

incriminating statements. In other cases, the courts distinguish 

responsive comments from more probing remarks.

For instance, in McDonald v. Blackburn the defendant returned 

from a meeting with police to his jail cell and declared to the jailhouse 

informant that police had “the ring.” 806 F.2d 613, 618 (5th Cir. 1986). 

When the informant asked “what ring?” the defendant answered that it 

was the ring taken from the murder victim. Id. The Fifth Circuit found 

this simple response was not an action designed to deliberately elicit 

incriminating remarks. Id. at 622.

But a different result occurred in Murphy, 862 N.E.2d at 30. In 

that case, the informant questioned the defendant about “what he did 

about his anger toward the victim.” Id. at 44. Plainly, unlike in 
50

McDonald, this was not merely a response to the statement by the 

defendant, but was a question designed to enhance the substance of the 

communication between the defendant and the informant. Id. at 44–45. 

The Massachusetts Supreme Judicial Court found this statement was 

sufficient deliberate elicitation to trigger a Massiah violation. Id. at 46.

e. Active or passive communication: clarifying questions. Matteo is 

a case considering the question of whether responding to a defendant’s

statements by asking follow-up or clarifying questions amounts to 

deliberate elicitation under Massiah. 171 F.3d at 877. In Matteo, the 

defendant called the informant and asked him to retrieve the murder 

weapon for him. Id. at 881–82. In the first conversation initiated by the 

defendant, the defendant revealed the gun’s general location. Id. at 882. 

During this conversation, the informant said virtually nothing at all. Id. 

at 882–83. The police, however, could not find the gun based upon the 

information volunteered by the defendant in the first conversation. Id. at 

883. As a result, the police arranged for a second telephone 

conversation. Id. In the second conversation, the informant advised the 

defendant that he could not find the gun. Id. at 883–84. In the first

conversation, the informant’s responses included seventy-three one-word 

expressions such as “okay” and “yeah.” Id. at 896 n.3. Nonetheless, 

during the second conversation, the informant asked some clarifying 

questions regarding the location of the gun:

On the far side, on the side all the way closer to your home? 

. . . [I]s it in the water? . . . So it’s not in the grass? . . . So 

it’s almost underneath the bridge? . . . Was the water frozen 

when you dropped it?

Id. at 908 (McKee, J., concurring). The majority found that the clarifying

questions were directly responsive to statements made by the defendant. 
51

Id. at 896 (majority opinion). The court concluded there was no 

deliberate elicitation under Kuhlmann. Id. at 897.

Three judges, however, dissented on the issue of whether the Sixth 

Amendment was violated, but concurred in the result because of 

harmless error. Id. at 905 (McKee, J., concurring). According to these 

judges, the police directed the informant to obtain more information in 

the second conversation in order to find the gun. Id. at 908. The 

dissenters argued that the many monosyllabic answers did not transform 

the informant into a listening post when the very purpose of the second 

conversation was to find out more information about the location of the 

gun and the informant specifically asked questions designed to obtain 

greater details about its location. Id. at 909.

The issue of clarifying questions was also considered in United 

States v. Jacques, 684 F.3d 324, 330 (2d Cir. 2012). Here, in one of the 

conversations, when the defendant stated that the actual killers had 

planted evidence, the informant asked, “[W]hat did they do? What 

. . . kind of evidence?” Id. at 330 n.2 (alteration in original). Yet the 

court found no Sixth Amendment violation because the jailhouse 

informant was “entirely passive.” Id. at 331–32. According to the court, 

the few follow-up questions posed by the informant were not “of a 

probing nature.” Id. at 332. The court expressly reserved the question of 

whether limited follow-up questions could ever be found to stimulate

discussion and thus be deliberate elicitation. Id.

A similar issue was confronted in York, 933 F.2d at 1343. In York, 

the informant and York were engaged in daily conversations, “kind of 

digging in each other’s past.” Id. at 1359. York told the informant that 

his son testified against him in his first trial and thought that York had 

killed his mother. Id. When the informant observed, “You must have 
52

been pretty mad at the bitch,” York declared, “Mad enough to put a 

bullet in the back of her head.” Id. The court found the statement of the 

informant not sufficient to rise to the level of deliberate elicitation. Id. 

The court noted that informants are not required to reveal their status by 

not responding to subjects, to remove themselves from situations that 

might uncover incriminating information, or to abruptly change the 

subject when inmates unburden themselves. Id.

Other cases are more critical of follow-up questions. For example, 

in Currington, an Idaho appellate court rejected claims that the informant 

was acting as a mere listening post when the informant asked some 

twenty questions to follow up on statements made by the defendant. 746 

P.2d at 1003–04 (majority opinion). Similarly, in State v. Mattatall, the 

informant asked questions of the defendant and then pressed him for 

“clarification of his equivocal responses.” 525 A.2d 49, 52 (R.I. 1987). In 

these cases, follow-up questions were sufficient to trigger a Massiah

violation.

f. Active or passive communication: casual remarks. Some cases 

seem to distinguish between casual remarks not designed to elicit 

incriminating statements and those that do. An illustrative case is 

Commonwealth v. Hilton, 823 N.E.2d 383 (Mass. 2005). In Hilton, a court 

officer was escorting a murder and arson defendant in leg irons after 

arraignment into a holding area. Id. at 391. The charges for which she 

was being arraigned stemmed from a blaze that destroyed a residence. 

Id. at 388, 391. The defendant stated that her son had warned her that 

leg irons were “no good.” Id. at 391. The court officer asked the 

defendant who her son was. Id. In response, the defendant made the 

incriminating statement, “I hope he forgives me . . . . I could have killed 

my grandchildren.” Id. At that point, the court officer asked the
53

defendant a series of questions about whether she had lit the fire, why 

she had done so, and whether she knew about the other occupants of the

house. Id. The Massachusetts Supreme Judicial Court held that the 

court officer’s question regarding the identity of the defendant’s son was 

a casual remark not designed to elicit incriminating statements. Id. at 

401. But the court officer’s follow-up questions about the crime crossed 

the Massiah line and were properly suppressed. Id.

g. Deliberate placement of informant with cellmate. In Kuhlmann, 

the Supreme Court stated that the Sixth Amendment does not “forbid . . .

admission in evidence of an accused’s statements to a jailhouse 

informant who was ‘placed in close proximity but [made] no effort to 

stimulate conversations about the crime charged.’ ” 477 U.S. at 456, 

106 S. Ct. at 2628, 91 L. Ed. 2d at 382 (quoting Henry, 447 U.S. at 271 

n.9, 100 S. Ct. at 2187 n.9, 65 L. Ed. 2d at 123 n.9) (alteration in 

original). Nonetheless, cases stress the role of the state in placing the 

informant in the jailhouse in a fashion designed to provoke discussion 

and potential incriminating statements. For instance, in Brink, the 

placement of an informant in close proximity to the defendant was a 

factor in determining agency. 39 F.3d at 424. On the other hand, in 

Taylor, the Tenth Circuit came to the conclusion that the mere placement 

of an informant in a jail cell with a defendant is insufficient to establish 

agency. 800 F.2d at 1016. But see Tomkovicz, Adversary System, 22 

U.C. Davis L. Rev. at 79–81 (asserting when the government 

surreptitiously enters defendant’s presence as a listener, it is not wholly 

passive and that Massiah should regulate passive reception).

h. Affirmative acts to cultivate trust. A number of the cases 

emphasize that when the informant engages in acts designed to 

encourage the defendant to trust the informant, these acts may at least 
54

be a factor in determining whether deliberate elicitation occurred. For 

instance, in Murphy, the informant gained the trust of the defendant by 

helping him hide a shank. 862 N.E.2d at 44. Such trust-building 

activity contributes to the likelihood of obtaining incriminating

information.

Yet in State v. Robinson, an informant prior to his arrest had 

worked with certain state agents. 448 N.W.2d 386, 390 (Neb. 1989). 

After the informant’s arrest, he was placed in a corrections center where 

the defendant was also incarcerated. Id. The officers with whom the 

informant had the relationship had no role in his placement. Id. In the 

cellblock, the informant asked the defendant why he was in prison, to 

which the defendant responded that it was none of his business. Id. 

Later, the defendant asked the informant if there were some people he 

could contact to help raise bail money, which the informant said he 

would help with—an act designed to generate trust with the defendant. 

Id. The trial court, however, found these facts insufficient to establish 

active elicitation. The Nebraska Supreme Court affirmed. Id. at 396.

i. Development of notes and written statements. There are a 

handful of cases dealing with the development of written notes or 

documents by informants. In United States v. Pannell, an informant 

received listening-post instructions from law enforcement. 510 

F. Supp. 2d 185, 188 (E.D.N.Y. 2007). The informant, however, took 

detailed, handwritten notes of incriminating information supplied by the 

defendant. Id. The district court did not believe that the informant 

followed the listening-post instructions, in part because of the detailed 

nature of the notes. Id. at 192. The district court noted that the 

informant must have participated in active conversation with the 
55

defendant in a deliberate attempt to elicit incriminating remarks. Id. at 

193.

A different result was reached in Frederick v. State, 755 N.E.2d 

1078 (Ind. 2001). In that case, the informant’s taking of notes, even if at 

the request of the police, was held not to violate Sixth Amendment rights 

if the informant did not elicit the information. Id. at 1082; see also 

Commonwealth v. Harmon, 573 N.E.2d 490, 493 (Mass. 1991) (finding

the taking of notes about incriminating statements did not mean, under 

the facts and circumstances, that the note-taker was an agent of the 

state).

E. Application of Massiah in Iowa Cases. In State v. Nelson, a 

defendant made incriminating statements to a jailhouse informant. 325 

N.W.2d 118, 119 (Iowa 1982). The informant then told authorities about 

the statements. Id. The informant was returned to his cell, where 

further incriminating statements were obtained from the defendant. Id. 

Citing the three-factor Henry test, we noted there was nothing to indicate 

that the state had “put him up to it.” Id. at 119–20. Specifically, there 

was nothing to indicate that Jackson had an agreement that he would be 

paid or would receive more favorable treatment for the information. Id.

at 120. No promises were made to give anything to the informant in 

exchange for incriminating statements. Id. We thus found, as a matter 

of fact, that the informant was not acting as an agent of the state. Id. 

We did not consider the question of deliberate elicitation.

V. Discussion of Right-to-Counsel Issue.

A. Attachment. The State contends that the right to counsel did 

not attach because the arrest warrant was not issued at the time that the 

State’s officers met with Johnson on July 12. The critical time is not 

when the State met with Johnson or any other informant. The critical 
56

time for purposes of attachment is when the informants obtained the 

incriminating information. See Randolph, 380 F.3d at 1143 (“Once a 

defendant’s Sixth Amendment right to counsel has attached, the 

government is forbidden from ‘deliberately eliciting’ incriminating 

statements from the defendant.” (Emphasis added.)). Here, there is no 

dispute that the right to counsel attached by then. Therefore, we reject 

the State’s attachment argument.

B. Agency Relationship. We next consider whether the State 

had an agency relationship with its informants sufficient to support a 

Massiah-type claim. The court of appeals majority found such agency 

with respect to Johnson based on the totality of the circumstances and 

the dissent agreed. 

1. Johnson. We think the record establishes an agency 

relationship existed as to Johnson. Whether a sufficient relationship 

exists between an informant and the state should not turn on formalistic 

analysis but on the more general proposition of whether an informant is 

seeking to provide information to the state in return for some kind of 

consideration. Ayers, 623 F.3d at 311–12. That was clearly the case 

here.

We do not regard the State’s instructions, or lack of them, as 

preventing an agency relationship for Massiah purposes. In Henry, the 

state explicitly instructed the informant not to engage in questioning, but 

the failure of the informant to follow instructions did not mean an agency 

relationship was not present. 447 U.S. at 271–72, 100 S. Ct. at 2187, 65 

L. Ed. 2d at 122–23. Also in Henry, the Court emphasized the jailhouse 

setting as a circumstance creating especial danger of a Sixth Amendment 

violation, a concern fully applicable here. Id. at 273, 100 S. Ct. at 2188, 

65 L. Ed. 2d at 124. 
57

Yet as in Henry, we think the incentives for Johnson were 

sufficiently substantial that the State should know that there was a 

likelihood that the informant would cross the line into deliberate 

elicitation. Detective Smithey instructed Johnson to report back to him

if he learned something. Given the powerful incentives plus the 

invitation to report back to Detective Smithey, Johnson was encouraged 

by the State to become a criminal investigator. If we took a contrary 

approach, we would promote a “wink and a nod” loophole to Massiah. 

Ayers, 623 F.3d at 312. We further note that Johnson, an inmate at the 

Muscatine County Jail, met with Detectives Smithey and Clarahan a day 

prior to Marshall’s arrest. Marshall was then incarcerated in the same 

jail. The fact that Johnson obtained incriminating information from 

Marshall does not look like luck or happenstance.

We also reject the State’s argument regarding the fact that the 

State officials asked for information about several persons of interest 

prevents us from finding an agency relationship between the State and 

Johnson. Whether the State seeks information about one person as in 

Massiah and Kuhlmann or three persons as here, the incentives for the 

informant remain precisely the same and the risks to the accused are no 

different than if there was just one target. We do not believe that the 

State can prevent the formation of an agency relationship by seeking 

information about multiple persons or by letting loose an informant at 

large in the jailhouse. We find the discussion in York persuasive. See 

933 F.2d at 1356–57. We do not think the United States Supreme Court 

intended to allow the states to employ informants such as “the 

monsignor” to engage in wholesale violation of the right to counsel. See 

Moose, 602 A.2d at 1270. To do so would be contrary to the State’s 

affirmative obligation to ensure that it does not take action that violates 
58

or interferes with the relationship between a defendant and his counsel. 

See Moulton, 474 U.S. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at 492.

2. Freeman. Marshall has not, however, established an agency 

relationship between the State and Freeman on the present record. The 

record indicates that Freeman may have hoped to receive a benefit as a 

result from his testimony, but there is no evidence of a proffer agreement 

or any kind of meaningful relationship between Freeman and the State.

See Cox, 708 F.2d at 136; Jackson, 684 A.2d at 752; Nelson, 325 N.W.2d 

at 120. Freeman was the classic entrepreneur, seeking to market his 

information without any advance arrangement. We reach this result as 

to Freeman even though he clearly deliberately elicited incriminating 

statements from Marshall. Taylor, 800 F.2d at 1016 (holding if the 

informant was not a government agent, no Massiah violation occurred

even if there was deliberate elicitation).

3. Martin. Unlike Freeman, Detective Smithey testified that Martin 

had a proffer agreement. The evidence showed that Martin had provided 

information under the proffer agreement on two other occasions and that 

he remained in the Muscatine County Jail for a lengthy period of time 

prior to sentencing. Detective Smithey did not mention in direct 

examination that he met with Martin about the Versypt murder, but he 

conceded on cross-examination that he “may have asked him” if he had 

any information about the Versypt murder during one of his proffer 

interviews. Further, Martin and Johnson were codefendants, and 

Detective Smithey conceded that Johnson would probably pass on to 

Martin that the State was interested in obtaining information about 

Marshall’s involvement in the Versypt murder. In other words, it was 

likely that the State’s informant, Johnson, would pass the State’s 

interest in Marshall on to his codefendant, who also had a cooperation 
59

agreement and had previously provided information to the State on at 

least two occasions. After Marshall arrived at the Muscatine County Jail 

in August, Martin was moved into his cellpod. Curiously, then, after 

Detective Smithey met with Johnson on October 3 at the Muscatine 

County Jail, Detective Smithey then saw Martin in a room off the library, 

who just happened to be talking to his lawyer and just happened to have 

with him his notes and Marshall’s notes about the Versypt murder. 

Notably, Martin had taken steps to document this information.

Whatever else he is, Martin is not a classic jailhouse entrepreneur. 

He had a proffer agreement and had at least two interviews under his 

belt prior to providing information about Marshall. Further, Detective 

Smithey’s admission that he may have asked him if he had information 

about the Versypt murder, that Johnson in any event would probably

advise him of the State’s interest, Martin’s timely transfer into Marshall’s 

cellpod, and the remarkable coincidental meeting with Detective Smithey 

on October 3—where Martin presented Detective Smithey with 

documents—suggests more than luck or happenstance occurred here. In 

any event, as pointed out above, the federal cases are divided on the 

question of whether deliberate elicitation by informants at large gives rise 

to a Massiah violation. We think the better view, however, is that it does. 

York, 933 F.2d at 1357. As a result, for purposes of this case, we 

conclude that Martin should be considered an agent of the State for 

Massiah purposes. 

C. Deliberate Elicitation. We next confront the question of 

deliberate elicitation.

1. Johnson. The evidence shows that Johnson asked Marshall 

“what was he in there for” when they were both together in segregation in 

the Muscatine County Jail. The evidence also shows that Marshall 
60

ultimately provided extensive information to Johnson about the 

underlying crime. As noted above, the disclosures made by Marshall are 

extensive—they go on, and on, and on. According to Johnson, the 

statements made to him by Marshall included the following comments: 

(1) there was no evidence or witnesses to the crime; (2) Marshall went to 

Burlington because police kept bothering him; (3) the police harassed 

him in Burlington and threatened him; (4) at first police said they had 

nothing on him and then they only had “a little gun powder;” (5) he was 

looking at a lot of time; (6) he, Calvin, and Weezy (Thompson’s nickname)

were playing dice in the hallway; (7) he arrived at the idea to rob the 

landlord; (8) Weezy then went into the apartment; (9) the robbery went 

wrong; (10) the landlord got shot; (11) the shot was loud; (12) he froze in 

the hallway and then ran out the back; and (13) he reentered through 

the front door. No direct evidence, however, was offered at the motion to 

suppress hearing or at trial about what Johnson specifically said to 

Marshall. Surely it is unlikely that Marshall engaged in an extended 

Shakespearean soliloquy about the crime. But the record does not 

provide an “I said, then he said, then I said” type of narrative.

On the one hand, this situation could be regarded as a failure of 

proof. It is, perhaps, conceivable that Johnson responded to Marshall’s 

statements with neutral “Oh’s” and “Uh’s,” other neutral filler comments,

or solely with comments that did not encourage Marshall to elaborate. 

Recall that in Matteo a recorded telephone conversation revealed the 

informant had engaged in seventy-three one-word utterances in response 

to incriminating statements by a defendant. 171 F.3d at 896 n.3. Such 

an argument, however, did not persuade the district court in Pannell,

510 F. Supp. 2d at 192. In Pannell, the informant claimed he did not ask 

the defendant any questions about his case and that the defendant 
61

volunteered his incriminating comments during lengthy conversations 

about everyday matters. Id. The district court found the informant’s

assertion incredible. Id. The district court noted that the informant “had 

great incentive to actively encourage [the defendant]” in light of his heavy 

sentence. Id. The district court concluded that there must have been 

some active encouragement from the informant and suppressed the 

statements. Id. at 193.

Yet on the record developed at trial, we think there has been a 

failure of proof. It is conceivable that Johnson only responded to 

volunteered incriminating statements made by Marshall with “Ah’s” and 

“Oh’s” or other comments that did not encourage Marshall to continue 

with the narrative. See Matteo, 171 F.3d at 896. Under Kuhlmann and 

related cases, such neutral or responsive comments are not considered 

deliberate elicitation. See Kuhlmann, 477 U.S. at 460–61, 106 S. Ct. at 

2630–31, 91 L. Ed. 2d at 385. It is remarkable, perhaps, that Marshall’s 

counsel—both at the motion to suppress and at trial—did not ask any 

questions of Johnson regarding his degree of participation in the 

communications with Marshall. It is possible that Marshall’s counsel 

was not aware of the deliberate-elicitation requirement for finding a 

Massiah violation. It is also possible, perhaps, that Marshall did provide 

a lengthy, unprompted confession to Johnson, and said as much to his 

attorney. The record, however, is not adequate on this direct appeal to 

resolve any potential ineffectiveness claim based upon the failure of 

counsel to explore deliberate elicitation. A different record, of course, 

might be developed on remand.

2. Martin. As to Martin, there is no doubt that he deliberately 

elicited incriminating statements from Marshall. At the outset, Martin 

got “legal stuff” for Marshall about manslaughter and armed robbery. 
62

According to Martin, “I told him, you know, you might have to tell your 

side of the story if you’re going to get a lesser charge. So he went to write 

the story down . . . .” Martin’s suggestion that it was in Marshall’s

interest to get out his side of the story is, of course, a classic police 

interrogation technique. See, e.g., State v. Monroe, 645 P.2d 363, 365 

(Idaho 1982) (finding an interrogation when the police officer asked the 

defendant “if he would like to give his side of the story”); State v. Hebert, 

82 P.3d 470, 481 (Kan. 2004) (inviting suspect to “tell his side of the 

story” constitutes an interrogation); State v. Hannon, 636 N.W.2d 796, 

806 (Minn. 2001) (warning defendant that “his side of [the] story [would] 

never be known” after defendant invoked his right to counsel violated 

defendant’s rights); State v. Lynch, 477 N.W.2d 743, 746 (Minn. Ct. App. 

1991) (asking “[w]hat’s your side of the story?” was an interrogation). 

Martin engaged in deliberate elicitation by any application of the 

Kuhlmann standard. See Calder v. State, 133 So. 3d 1025, 1030–31 (Fla. 

Dist. Ct. App. 2014) (reminding accused that this was his opportunity to 

present his side of the story and that doing so would benefit him is 

“reasonably likely to elicit an incriminating response” (quoting Rhode 

Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 

297, 308 (1980))); State v. Harris, 741 N.W.2d 1, 7 (Iowa 2007)

(characterizing statements to “get it out on the table” and “[t]ell us what 

really happened” as “reasonably likely to elicit an incriminating response”

(quoting Innis, 446 U.S. at 301, 100 S. Ct. at 1689, 64 L. Ed. 2d at 308

(third quote))); Hebert, 82 P.3d at 483 (holding “[w]ould you like the 

opportunity to tell me your side of the story” elicited confession); see also

Mark A. Godsey, Shining the Bright Light on Police Interrogation in 

America, 6 Ohio St. J. Crim. L. 711, 720–22 (2009).
63

Under the circumstances, Martin simply cannot be characterized 

as “a passive listener to a heartfelt confession.” Franciscus, 710 A.2d at 

1120 (majority opinion).

D. Sua Sponte Harmless Error Under Blaise. The State did not 

argue harmless error in its briefing in this case. Yet in In re Detention of 

Blaise, we held that we could consider the issue of harmless error when 

it was not raised in the briefing in a narrow category of cases. 830 

N.W.2d 310, 319 (Iowa 2013). Factors to be considered include “(1) the 

length and complexity of the record, (2) whether the harmlessness of the 

error or errors found is certain or debatable, and (3) whether a reversal 

will result in protracted, costly, and ultimately futile proceedings in the 

district court.” Id. (quoting United States v. Giovannetti, 928 F.2d 225, 

227 (7th Cir. 1991)). The main factor, however, is “the extent to which 

the harmlessness of the error is open to question.” Id. at 320.

The first Blaise factor, length and complexity of the record, cuts 

against allowing a sua sponte harmless-error review. The trial lasted 

thirteen days with over a hundred exhibits. This was not a relatively 

short proceeding where the lack of harm is obvious from a cursory review 

of the record. Further, we note that the State originally charged someone 

else, Charles Thompson, with Versypt’s murder. This original 

prosecution ended in a mistrial. This suggests that the question of who 

was responsible for the murder has been an open question and has 

shifted over time.

We now turn to the other Blaise factors, considering whether 

reversal will lead to futile proceedings and especially the extent to 

whether the harmlessness of error is open to question.

1. Opening and closing statements as windows to sua sponte 

Blaise harmless error. We look to the opening and closing statements of 
64

the parties as a window into whether the demanding Blaise sua sponte 

harmless-error standard is met.

In its opening statement, the first substantive line from the 

prosecution was, “This is a case about a robbery that went wrong.” The 

prosecution outlined in detail uncontested facts related to the murder. 

The prosecution continued by stating that the evidence would show that 

Marshall observed Versypt as he approached the apartments on the day 

of the murder. The prosecution noted that Charles Thompson, the 

previous defendant in the Versypt murder, would testify that Marshall 

took the clothes he was wearing on the day of the murder, placed them 

in a plastic bag, and threw them away. The prosecution also stated that 

the testimony of its experts would show gunshot residue on articles of 

Marshall’s clothing.

The State closed by outlining the expected testimony of its three 

informants. The prosecution noted that these men were persons 

Marshall “thought that he could talk to and confide in.” The prosecution 

summarized that Johnson would explain that Marshall told him that he, 

Charles Thompson, and another individual were playing dice and that 

Marshall and the other person decided to rob the landlord of rent money. 

The prosecution indicated that Martin was asked by Marshall “to help 

him write something that would make the shooting sound like an

accident.” The prosecution stated that Marshall asked Freeman for his 

help in stating that the shooting was an accident and asked Freeman to 

talk to his attorney about it.

In its opening statement, the defense began by noting that many of 

the facts were not in dispute. What was in dispute was “who did it.” The 

prosecution noted that after a long and intensive investigation, the State 

charged Charles Thompson—and not Marshall—with the murder. With 
65

respect to the three informants, the defense emphasized that they needed

to provide incriminating information to get reduction of their sentences. 

The defense emphasized the lack of DNA and fingerprints linking 

Marshall to the crime. With respect to gunshot residue, the defense 

noted that gunshot residue was on the clothing of other occupants of the 

apartment where Marshall lived, including Charles Thompson. In 

closing, the defense declared, “Mr. Freeman, Mr. Johnson, Mr. Martin, 

those are witnesses that the State needs for their case.” The defense 

again attacked their credibility and their incentive to provide 

incriminating statements.

In the prosecution’s closing statement, it methodically summarized 

the testimony of trial witnesses. As in the opening statement, the 

prosecution developed in depth the details of John Versypt’s life, the 

investigation of the crime scene, and the autopsy. The prosecution 

described in detail the testimony of Martin, Freeman, and Johnson. The 

prosecution emphasized that Martin asked Marshall whether Marshall 

trusted him and that afterwards they developed a plan through which 

both would potentially benefit.

The prosecution read verbatim the entire contents of Exhibit 105, 

the statement drawn up by Marshall at the request of Martin. The 

prosecution emphasized to the jury, “[Y]ou’ll be able to take a look and 

read it for yourself.” The prosecution further summarized the testimony 

of Freeman and Johnson. All in all, the prosecution spent twelve 

consecutive pages of transcript discussing the testimony of the 

informants. The prosecution emphasized that the jury will “get to review 

[the written statement] where [Marshall] lays out and admits that he’s 

the one who shot John Versypt.” The State recognized that there was a 

lack of scientific evidence linking Marshall to the crime, noting the trial 
66

was “not a TV show, not everything is wrapped up.” But the prosecution 

emphasized that “Justin Marshall did tell others what happened, and 

they did testify.”

In the defense’s closing statement, the defense argued that the 

State “has almost no physical evidence against Justin Marshall,” no 

eyewitnesses, DNA, or fingerprints. The defense noted that while 

gunshot residue, which has the capacity to migrate from one article of 

clothing to another, was found on Marshall’s clothing, it was also found 

on the clothing of Thompson and Courtney White, who from time to time 

occupied the same apartment as Marshall. The defense noted testimony 

that the gun found at the crime scene belonged to Thompson, not to 

Marshall. The defense pointed at Thompson as a potential perpetrator, 

noting that in September 2011 at Thompson’s trial the State identified 

him as the shooter.

After citing the shortcomings of the State’s evidence, the defense

declared, “[S]o what it comes down to, ladies and gentlemen, is what 

Justin Marshall said or supposedly said to the three convicted felons in 

the Muscatine County jail, Earl Freeman, Carl Johnson, and Antonio 

Martin.” According to the defense, “[T]he State’s whole case comes down 

to three long-time career criminals who have done this before in order to 

get a reduction in their sentences . . . .” In rebuttal, the prosecution 

focused immediately on the testimony of the three informants, noting 

that the prosecution had been “perfectly honest” about them. The 

prosecution then briefly recanvased aspects of the trial, including 

inconsistencies in Marshall’s October 9 statement and testimony 

suggesting he disposed of his clothing after the murder. In closing, the 

prosecution again returned to the subject of the informants. The 

prosecution referred again to Exhibit 105, noting that “[t]his is not 
67

something that was written by one of them. This was something written 

by Justin Marshall.”

2. No sua sponte harmless error under Blaise. On the record 

before us, we decline to find sua sponte that the error in admitting 

Martin’s testimony was harmless. This was the second trial in 

connection with Versypt’s murder, with the first trial against a different 

defendant ending in a mistrial. The State then charged Marshall and a 

thirteen-day trial ensued. The evidence admitted through Martin—

especially incriminating written materials that virtually amounted to a 

confession—played a major role in the opening and closing statements of 

the parties. The prosecution read the statement verbatim in closing 

argument and in rebuttal emphasized the written exhibit as proof of 

Marshall’s guilt. While Freeman offered testimony in some ways similar 

to Martin’s, we do not think we can characterize Martin’s contribution as 

merely cumulative in a Blaise-type review for sua sponte harmless error.

In addition, there was little direct scientific evidence linking 

Marshall to the crime, and Thompson was a good alternative suspect—

indeed, some of the jurors in Thompson’s trial were unwilling to acquit 

him of the charge. Further, we note that the jury in this case asked a 

number of questions and ultimately were not unanimous on the theory of 

guilt. We simply do not believe the narrow exception to our ordinary 

issue preservation rules found in Blaise has been met based on the 

record in this case.

E. Summary of Massiah Holdings. Based on our analysis of the 

record, we conclude that Johnson and Martin were agents of the State. 

While Martin plainly deliberately elicited information from Marshall, we 

conclude that the evidence of deliberate elicitation is insufficient as to 

Johnson. As a result, the motion to suppress should have been granted
68

as to Martin. Because the State does not argue harmless error and we 

cannot say with certainty that the error was harmless under Blaise

standards, we vacate Marshall’s conviction and remand the case for a 

new trial. We decide this case based on the Sixth Amendment of the 

United States Constitution, since this was the approach followed by the 

district court to decide the case. While we reserve the right to interpret 

and apply the right to counsel provision in article I, section 10 of the 

Iowa Constitution in a fashion different than under its federal 

counterpart, see State v. Young, 863 N.W.2d 249, 280 (Iowa 2015) (“Our 

tradition of the right to counsel is simply broader than that represented 

by [the federal counterpart].”), we do not consider any questions in this 

case related to the right to counsel under this state constitutional 

provision.

VI. Conclusion.

For the above reasons, we hold that the district court improperly 

overruled the motion to suppress as to Martin. As a result, the decision 

of the court of appeals must be vacated and the judgment of the district 

court must be reversed and the case remanded to the district court for 

further proceedings.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND 

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND 

CASE REMANDED.

All justices concur except Mansfield, Waterman, and Zager, JJ., 

who concur in part and dissent in part.
69

#13–0739, State v. Marshall

MANSFIELD, Justice (concurring in part and dissenting in part).

This case can be resolved by common sense, precedent, and basic 

constitutional principles. A defendant who volunteers incriminating 

statements to a fellow inmate is not deprived of his Sixth Amendment 

right to counsel just because the fellow inmate has a cooperation clause 

in his plea agreement and is cooperating with law enforcement. Jail is 

not a pure, pristine environment. Its occupants therefore run the risk 

that persons with whom they are sharing confidences may be, in 

common parlance, “snitches.” The State does not violate the Sixth 

Amendment by taking advantage of this situation so long as the State 

does not circumvent the right to counsel by using jailhouse stand-ins to 

question inmates. The Iowa City Police Department did not do that here 

or anything close to that. I therefore respectfully dissent in part.

In my view, the court goes well off the tracks in holding that 

Antonio Martin’s testimony should have been suppressed. It appears the 

Iowa City police had not spoken to Martin at all about the Versypt killing 

before the defendant and Martin discussed it in jail; at most Martin had 

been asked one general question about it. Furthermore, Martin disclosed 

to the defendant from the beginning that he was a snitch, and the 

defendant intentionally sought to use Martin as a snitch to tell his version 

of Versypt’s death. As a practical matter, the majority finds a 

constitutional violation only because Martin gave the defendant advice 

that the defendant’s own counsel would not have given. Unlike the 

court, I would not recognize this new constitutional claim of “ineffective 

assistance of fellow inmate.”

The majority opinion, I fear, threatens to harm legitimate law 

enforcement in Iowa. Under the majority’s approach, anyone who enters 
70

into a cooperation agreement with the federal government as part of his 

or her guilty plea—a fairly common occurrence—becomes a roving agent 

“at large” of the State of Iowa. If this person then interacts with another 

inmate, even if the interaction merely results in the inmate writing out 

what the inmate has already said, a violation of the Sixth Amendment 

right to counsel has occurred. I am unaware of any court anywhere in 

the country that has adopted such an expansive view of Massiah v. 

United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).2

I believe the court’s conclusions are driven by a fundamentally 

wrong-headed view of the right to counsel. Undoubtedly, the government 

has a constitutional obligation not to circumvent defendant’s legal 

counsel. And that does happen in some cases, although it clearly didn’t 

happen here. However, the majority’s position is that the State has to 

make the jail a sanitized environment where every inmate can trust that 

any fellow inmate who engages him in conversation isn’t cooperating with 

the government. If the guarantee is violated, any statements can’t be 

used even if (as in the case of Martin) the defendant knew the fellow 

inmate was cooperating with the government.

A further flaw in the court’s approach is that it is utterly 

unrealistic. Offenders have snitched on one another ever since Adam 

blamed Eve for giving him the forbidden fruit. This will continue to occur 

because the nature of plea bargaining and sentencing (especially federal 

sentencing) provides a strong incentive for it to occur. The court’s 

opinion, however, provides a strong disincentive for the documentation of 

2I discuss below the cases that the court claims support its approach. There is 

a Massachusetts case that adopts the majority’s view of agency but requires more by 

way of deliberate elicitation than the majority does today. See Commonwealth v. 

Murphy, 862 N.E.2d 30, 43–45 (Mass. 2007).

 
71

such arrangements. Instead of formal cooperation agreements, which 

provide a clear basis for impeaching the informant while also providing a 

sanction if the informant doesn’t tell the truth, there will be vague and 

muddy informal arrangements.

I. Additional Factual Background.

A fair understanding of this case needs to begin with more facts 

than the majority provides. The majority’s quick “overview of the crime” 

does not adequately convey the strong evidence of Justin Marshall’s 

guilt.3 This evidence helps explain why Marshall was not so much a 

victim of jailhouse snitching as a willing participant, when he sought out 

others to tell his story in the hope that he would be convicted of a lesser 

charge than first-degree murder.

Several witnesses placed Marshall in the location where Versypt 

was killed at the time he was killed. Marshall was also tied to the 

murder weapon. In addition, gunshot residue was found on Marshall’s 

jacket. Marshall’s statements to police were highly inconsistent and 

revealed details about Versypt’s death not known to the public. Marshall 

later told two fellow inmates—the admissibility of whose testimony is not

questioned by the majority—that he had planned to rob Versypt, that 

Versypt went for the gun or otherwise startled him, that as a result 

Marshall shot Versypt, and that Marshall then wiped the gun off on his 

own jacket and ran.

John Versypt’s death from a gunshot wound occurred around 

4 p.m. on October 8, 2009. Officers found his body lying on the floor on 

3The district court found there was substantial evidence to support guilty 

verdicts on all of the theories presented to the jury, including that Marshall committed 

murder as a principal, that Marshall engaged in joint criminal conduct (i.e., he 

intentionally joined a robbery during the course of which Versypt was murdered), and 

that Marshall committed felony murder (the felony being robbery). I agree.

 
72

the back landing of Building C of the Broadway Condominiums. Versypt 

had been shot once, with the bullet passing at close range through one of 

his hands and his face. Versypt passed away before the officers arrived. 

The officers retrieved a multicolored .38 caliber revolver that had been 

left near Versypt’s body.

Shawnta Jackson lived in a third-floor apartment of Building C. 

While doing laundry downstairs that afternoon, she had noticed Marshall 

and another person (Courtney White) standing outside the back door of 

the building. Later, when Jackson returned to get her laundry, she saw 

Versypt lying on the ground on the back landing. He was bleeding and 

gasping for air. Jackson ran back up to her apartment.

Andrew Shepard resided in the same third-floor apartment of 

Building C as his sister Jackson. After Jackson ran into the apartment 

telling Shepard in shock what she had seen, Shepard hurried 

downstairs. Versypt was still breathing heavily, and Shepard saw a gun 

on the ground. Shepard called the police. While Shepard was on the 

phone with the 911 operator, Versypt stopped breathing. Shepard also 

saw a drill, a wallet, and signs on the floor. The wallet was open.

The next day, Shepard discussed with his brother what he had 

seen. Marshall joined the pair and asked what kind of gun Shepard had 

observed near the body. Shepard said it was a camouflage .38. Marshall 

admitted to owning “a gun just like that one.” Oddly, though, Marshall 

claimed to have been in Shepard’s apartment at the time of the shooting. 

Shepard disputed that, telling Marshall he had not been in Shepard’s 

apartment. Marshall insisted he had been in Shepard’s apartment, and 

Shepard again disagreed.

James Brown lived in Building C in an apartment next door to the 

apartment where Marshall and Charles Thompson resided. On the night 
73

before the shooting, Brown was visiting the other apartment and noticed 

a dark-colored gun that appeared to be a .38 lying on the bed in the back 

bedroom. At that time Marshall and Thompson were present in the 

bedroom. Brown later saw the actual gun that was retrieved from beside 

Versypt’s body. He identified this as the same gun he had seen the night 

before the shooting.

Brown’s account of the shooting generally aligned with Shepard’s. 

Brown heard a shot go off and heard the back door of the building “bust 

open real quick” but was unable to see anyone exit the building. A few 

minutes later, Brown could hear Marshall knocking on the door of his 

own apartment, quietly asking his own aunt (who also resided in the 

apartment) to let him in. When Brown opened the door and looked 

downstairs, he saw Versypt’s body lying on the landing. Versypt was in 

the process of dying, and Shepard was on the phone with the 911 

operator.

On the evening of the shooting, a surveillance camera caught 

Marshall and Thompson carrying garbage bags out of Building C, which 

they tossed into the dumpster. However, a jacket that Marshall had been 

seen wearing during the afternoon of the shooting was later recovered by 

police. It tested positive for gunshot residue.

Marshall was interviewed by police and made numerous 

inconsistent statements. His recorded interviews were subsequently 

played back for the jury. Initially Marshall denied knowing anything 

about the shooting. Later he tried to implicate Thompson, claiming he 

heard Thompson talking on the phone about “hitting a sweet lick

[robbery]” around 2:30 p.m. on the day of the fatal shooting. Police were 

unable to corroborate from phone records that this call had actually 

occurred.
74

Later still Marshall said that Thompson and someone else had 

planned to rob Versypt. He claimed he overheard Thompson saying on 

the telephone afterward that “we hit a lick,” but the lick “went wrong.” 

Yet further into the interview, Marshall contradicted himself again and 

said that these alleged statements were made during a personal 

conversation he had with Thompson the night after the shooting.

Marshall also told police that Versypt had been shot in the face. 

When asked how he knew this, Marshall became flustered and claimed 

the police had told him. In fact, the police had deliberately withheld this 

factual detail.

Thompson was originally charged with Versypt’s murder. However, 

his trial ended in a mistrial when inadmissible evidence was 

inadvertently introduced. Subsequently, he reached a deal with the 

State wherein he pled guilty to being an accessory after the fact.

Thompson ultimately testified against Marshall at Marshall’s trial. 

According to Thompson’s testimony, right after the shooting, Marshall 

came into their apartment and said that someone had been shot in the 

hallway. Later in the evening, Thompson saw Marshall putting the pants 

he had been wearing that day in a plastic sack. Marshall then placed the 

sack in a larger garbage bag from the kitchen. This was one of the bags 

the two men threw out that evening.

II. The Informants.

On July 12, 2011, a criminal complaint was sworn out against 

Marshall. Marshall was arrested in Texas several days later and 

transported back to Iowa. On August 1, a trial information was filed 

charging Marshall with first-degree murder. Marshall pled not guilty on 

August 2. He was thereafter held in custody at the Muscatine County 

Jail.
75

Over the course of the Versypt murder investigation, Detective 

Michael Smithey interviewed several jailed individuals he thought might 

have information about the killing. Detective Smithey stated that the 

focus of such interviews was “[t]o gather information that they have from 

while they were on the street or that they have gathered while 

incarcerated.” Detective Smithey said that individuals who have been 

arrested for “federal-level drug crimes” can be particularly helpful in 

investigations because they are well known in their communities and can 

often “shed light on violent crimes, robberies, serious assaults, 

homicides, [and] other [crimes].” He continued, “People in those 

situations are a wealth of knowledge about what is going on in the street 

and who is doing what.” Detective Smithey denied giving any 

instructions to the persons he interviewed:

[P]eople oftentimes ask, do you want us to find it? No, we’re 

not telling you to do anything. If you learn something, 

contact us, but there are no specific directions as to find 

something out about this person or ask them this or 

anything like that.

Three of these informants ended up testifying against Marshall—

Carl Johnson, Earl Freeman, and Antonio Martin. The majority 

concludes that error occurred only with respect to the admission of 

Martin’s testimony. Let me therefore review the testimony of the other 

two informants before I get to Martin.

A. Johnson. Johnson was being held in the Muscatine County 

Jail during the summer of 2011 following a federal conviction for 

conspiracy to distribute cocaine. He had entered into a guilty plea that 

included a cooperation agreement. Johnson had originally been 

sentenced to 240 months in prison, but after he testified against his 

codefendant, his sentence was reduced to 140 months.
76

On July 12, Johnson went through a proffer interview with 

Detective Smithey and Detective Jennifer Clarahan in the presence of 

Johnson’s attorney. Detective Smithey subsequently testified regarding 

the interview as follows:

Q. Now, according to your report, the first thing you 

told him was we’re here for information about the death of 

John Versypt or words to that effect, correct? A. May I refer 

to my report?

Q. Yes. I’m looking at paragraph 2. A. Yes.

Q. Then, on the next page, he was asked to provide 

information about Charles Thompson, also known as Weezy. 

Do you see that there? A. Yes.

Q. Paragraph 4, he was asked to provide information 

about Justin Marshall. Do you see that? A. Yes.

Q. And then paragraph 5, he was asked to provide 

information about Courtney White, also known as Mow-Mow. 

Do you see that? A. Yes.

Q. So, Officer, first you go into Mr. Johnson and you 

say, we’re here to talk about the killing of John Versypt. 

Then you give him the names of people you’re interested in, 

whether it’s [Charles Thompson], Justin Marshall, or 

Courtney White. Do you recall doing that? A. Yes. It’s in 

the report.

Johnson said he had been a resident of the Broadway 

Condominiums at the time of the shooting, and he remembered 

discussing it with other residents when it occurred. During the 

interview, Johnson told Detective Smithey that Marshall had said 

Thompson killed Versypt. Detective Smithey did not ask Johnson to 

gather any more information from Marshall, Thompson, or White but did 

tell Johnson to “contact me if he learned anything further.”

In September, Johnson’s attorney contacted Detective Smithey, 

indicating that Johnson might have additional information about the 

Versypt killing. Detective Smithey accordingly reinterviewed Johnson at 
77

the jail. Johnson said he had learned more from Marshall after both 

men had been placed in a segregated area of the jail in August for 

separate rule violations. According to Johnson’s trial testimony, their 

discussion went as follows:

Q. What did you discuss initially with Justin Marshall 

when you first started talking to him while you were in 

segregation? A. Well, when I first—I say to him then, I knew 

him so I asked him what was he in there for.

Q. And what did he tell you? A. He say, man, they 

got me for that landlord, and he cursed.

Q. Did he tell you more about what happened that led 

him to be charged or did he tell you more about the landlord 

being shot? A. Both.

In further conversation, Marshall disclosed to Johnson that he 

(Marshall) came up with the idea to rob Versypt because “some [tenants] 

pay with cash.” Marshall also told Johnson that “the robbery went 

wrong” in that “[t]he landlord got shot.” According to Johnson, Marshall 

described the shooting in the following terms:

All [Marshall] said was it was real—the shot was loud. It was 

loud in the hallway, and that kind of like froze him up, and 

after that he ran out the back to get away from the scene. 

He came back around, knocking on the front door, but he 

was whispering a little bit because he didn’t want nobody to 

know he was in the hallway.

The Iowa City police had made no effort to have either Johnson or 

Marshall placed in segregation. Detective Smithey also denied asking 

Johnson to try to obtain more information or indeed any information 

from Marshall regarding the killing of Versypt. Detective Clarahan 

likewise testified that she never asked Johnson to obtain information 

from Marshall, nor did she ever hear anyone else from the State ask 

Johnson to get information from Marshall.
78

B. Freeman. Freeman was also housed in the same cell block at 

the Muscatine County Jail as Marshall for a time period in 2011. At one 

point, while Freeman was helping Marshall draft a motion for 

appointment of new counsel, Marshall spoke with Freeman about the 

reasons why he (Marshall) was in jail. Marshall provided Freeman with 

this version of what had happened on October 8, 2009:

[Marshall] went to rob him. [Versypt] grabbed for the gun. 

The gun went off, shot him in the hand, shot him in the 

head. He fell in the door or . . . on the ground in the 

doorway . . . and [Marshall] wiped the gun off the front of his 

jacket and he took off.

Marshall told Freeman that no one else was involved in the attempted 

robbery and fatal shooting and that Thompson was “innocent.”

Marshall also explained that he wanted to get his charges reduced 

from murder to manslaughter. He thus discussed a scheme with 

Freeman under which Freeman would tell his attorney that Marshall had 

confessed to an accidental shooting. Marshall wrote out on a yellow pad 

what he wanted Freeman and another inmate—Martin—to say.

C. Martin. This brings us to Martin. In November 2010, Martin 

was arrested on federal charges for conspiracy to distribute cocaine and 

a firearms violation. He pled guilty, and his plea agreement included a 

cooperation agreement with the federal government in which he agreed to 

be interviewed by law enforcement and provide truthful information. 

Martin understood that if he provided substantial assistance in another 

criminal case to the government and the United States Attorney’s Office 

filed a motion, the federal district court could reduce his sentence. In 

fact, when Martin was sentenced on his federal charges in March 2012, 

Martin received a large reduction in his sentence after testifying against 

his cousin, a codefendant in his case.
79

Although Martin had a cooperation agreement, his discussions 

with the Iowa City police before October 2011 related to other matters 

and not the Versypt killing. On cross-examination, Detective Smithey 

conceded he “may have asked [Martin] if he had any knowledge of it . . . 

but it would have been just a simple, do you know any information about 

this?” At this point, Martin’s answer obviously would have been no.4

Between his arrest in November 2010 and his sentencing in March 

2012, Martin was also being held at the Muscatine County Jail. Martin 

previously knew Marshall from the Broadway neighborhood, yet had not 

seen him since 2009. In August 2011, Martin ran into Marshall when he 

was moved into Marshall’s sixteen-man pod. There is no evidence that 

the State deliberately placed the men together or that Martin sought out 

Marshall’s pod.

In their initial conversations, Marshall told Martin that he was in 

jail for the murder of Versypt but denied having anything to do with it. 

Martin in turn told Marshall what his federal charges were and that he 

was testifying against one of his codefendants. In other words, Marshall 

knew that Martin was a “snitch.” In fact, Marshall intended to use 

Martin for that purpose.

As time passed, Marshall stopped claiming that he had nothing to 

do with Versypt’s death. Instead, Marshall related to Martin a different 

story—that Versypt had startled Marshall, Marshall’s gun had 

accidentally gone off, and then Marshall had wiped the gun off and run 

away. As Martin testified,

4Martin himself did not recall ever meeting Detective Smithey prior to October 

2011. Regardless, Detective Smithey’s testimony that he “may have” asked Martin in 

passing about the Versypt killing does not demonstrate that Detective Smithey asked 

Martin to gather information on that killing, let alone that Detective Smithey asked 

Martin to get information on Marshall.

 
80

Q. [D]id he tell you what happened when he went out 

to sell the gun? A. He said he went downstairs and 

somebody came up behind him saying something, coming, 

approaching him, and he got scared and he turned around 

and pulled the gun from his waistband.

Q. Did he tell you what he did with the gun? A. He 

said it all happened so quick, you know. The gun went off 

and he dropped it and picked it back up and wiped it off and 

dropped it again and ran.

Marshall also told Martin he was trying to get his charge reduced 

to manslaughter and asked Martin for information on the legal definition 

of manslaughter as well as armed robbery. At this point, Martin 

encouraged Marshall to write his story down, i.e., to “use [Martin] as a 

jailhouse snitch” so Martin could “get [Marshall’s] story out and it might 

help both of [them].” Marshall did his writing on a legal pad provided by 

Marshall’s attorney. Martin was not present when Marshall wrote out 

his account and never told Marshall what to write.

In October 2011, Martin was telephoning with his own attorney at 

the Muscatine County Jail and took Marshall’s handwritten story with 

him. It turned out that Detective Smithey was there that day as well on 

another matter. Neither Martin nor Detective Smithey knew the other 

was going to be present. When Detective Smithey came into the room, 

Martin showed him the legal pad and let him scan it but didn’t let him 

keep it. Detective Smithey then obtained a search warrant for Marshall’s 

cell. Marshall’s handwritten story, by then torn into pieces that had to 

be reassembled, was recovered from Marshall’s jail cell. It was identified 

by both Freeman and Martin and used against Marshall at trial.

The majority says it is a “remarkable coinciden[ce]” that Detective 

Smithey was at the jail the day that Martin was talking on the phone 

with his attorney. I do not find this remarkable. In 2011, Detective 

Smithey had been reassigned to the Johnson County Drug Task Force 
81

and thus had numerous other reasons to be at the jail. Here is Detective 

Smithey’s testimony that the majority finds unbelievable and that I do 

not:

Q. How did it come about that you interviewed him 

that day? A. I had just finished having a conversation with 

someone else there at the jail. There are two areas where 

these conversations typically take place. One is the library. 

It’s a fairly sizable room with law books, and I don’t know if 

it’s technically a law library there or not, but there’s fairly—

it’s where most of the meetings take place because there are 

multiple tables in it where five, six, ten people could 

probably sit. And then there’s another room that is between 

the library and the door that is used to exit the secure area 

of the facility. As I was leaving the library area, I saw 

Antonio Martin sitting alone inside that other much smaller 

room. It’s a room that four people would be uncomfortable 

being in. It’s tight. He was alone in that room. And I 

confirmed with jail staff that it was indeed Mr. Martin in the 

room.

Q. And what did you do when you saw Mr. Martin? 

A. I asked the jail staff if they’d allow[] me in to speak with 

him, and they did. I went into the room, and he was on the 

phone with his attorney at the time. I identified myself to 

her. I knew her from other cases that I was working, and 

they allowed me to sit in and ask a few questions of Mr. 

Martin.

Q. While you were sitting in with Mr. Martin, did Mr. 

Martin show you anything? A. He did.

Q. And could you just generally describe what he 

showed you. A. Mr. Martin showed me a yellow legal pad. 

That legal pad had—it wasn’t completely full. It had four 

pages. The first four pages had writing on them. The others 

were blank.

The district court found that Martin “collected information prior to 

and without being approached by the police.” Unlike the majority, I 

would not disbelieve Detective Smithey but would rely on the trial judge’s 

evaluation of what happened here.
82

D. The District Court’s Ruling. The district court overruled 

Marshall’s motion to suppress the testimony of Freeman, Martin, and 

Johnson on the following grounds:

I have had a chance to review the standard, and I’m going to 

overrule the motion to suppress and allow the witnesses to 

testify. The case law suggests that an informant becomes a 

government agent for purposes of the test only when the 

informant has been instructed by the police to get 

information about a particular defendant. The defendant 

must demonstrate that the police and their informant took 

some action beyond merely listening that was designed 

deliberately to elicit incriminating remarks.

. . . . 

. . . The primary—the cases indicate that the primary 

concern of those decisions is secret interrogation by 

investigatory techniques that are the equivalent of direct 

police interrogation. The Sixth Amendment is not violated, 

however, whenever, by luck or happenstance, the State 

obtains incriminating statements. I think this case presents 

just the sort of luck or happenstance that resulted in these 

gentlemen coming forward and providing information to the 

State based upon what they alleged to have been statements 

made by Mr. Marshall.

I think this analysis succinctly summarizes why there was no 

Sixth Amendment violation here.

III. Marshall’s Sixth Amendment Right to Counsel Was Not 

Violated Because Martin Was Not a Government Agent When He 

Spoke to Marshall.

In Massiah, the United States Supreme Court held that a 

defendant 

was denied the basic protections of [the Sixth Amendment] 

when there was used against him at his trial evidence of his 

own incriminating words, which federal agents had 

deliberately elicited from him after he had been indicted and 

in the absence of his counsel. 

377 U.S. at 206, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250. Thus, a Massiah

violation requires findings that the informant was a government “agent” 

and “had deliberately elicited” statements from the defendant. Id. Both 
83

of those elements are simply absent here. I will start with agency. 

Marshall bears the burden of proof in establishing agency. See Moore v. 

United States, 178 F.3d 994, 997, 999 (8th Cir. 1999); Lightbourne v. 

Dugger, 829 F.2d 1012, 1020 (11th Cir. 1987).

I agree with the essence of the State’s position: Without some 

direction or instruction from the government, an informant does not 

become a government agent for Massiah purposes. The most one can 

say here is that Martin had entered into a plea agreement on federal 

charges wherein he agreed to cooperate with the government in the hope 

of receiving a sentence reduction and that Martin and Marshall ended up 

in the same jail pod. These routine circumstances fall well short of 

establishing agency.

It is important to note what this case does not involve. There is no 

evidence that Martin was asked to contact Marshall or engage him in 

conversation. There is no evidence that any person with knowledge of 

Martin’s status placed him in the same unit with Marshall (or even knew 

they were going to be together). There is also no evidence that Martin 

sought out Marshall. 

Since Massiah, three other Supreme Court decisions have 

specifically addressed the government use of informants to allegedly

circumvent the Sixth Amendment right to counsel. See Kuhlmann v. 

Wilson, 477 U.S. 436, 456, 106 S. Ct. 2616, 2628, 91 L. Ed. 2d 364, 

382–83 (1986); Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 484, 

88 L. Ed. 2d 481, 492–93 (1985); United States v. Henry, 447 U.S. 264, 

269, 100 S. Ct. 2183, 2186, 65 L. Ed. 2d 115, 121 (1980).

No one disputes that Henry is the high-water mark for the 

Supreme Court’s recognition of claims of Massiah violations. In Henry, 

FBI agents reached out to Nichols, a paid informant, who was being held 
84

in the same jail as Henry. Henry, 447 U.S. at 266, 100 S. Ct. at 2184, 

65 L. Ed. 2d at 119. Henry had been indicted for armed robbery, and the 

facts were not clear whether the government contacted Nichols for 

information about the robbery more generally or asked for information 

specifically about Henry. Id. Nichols told the agents that he was on the 

same cellblock as several federal prisoners including Henry, and “[t]he 

agent told him to be alert to any statements made by the federal 

prisoners, but not to initiate any conversation with or question Henry 

regarding the bank robbery.” Id. at 266, 100 S. Ct. at 2184–85, 65 L. Ed. 

2d at 119. After Nichols’ release from jail, the same FBI agent contacted 

him, and Nichols gave the agent information that Henry had revealed to 

Nichols in conversation. Id. at 266, 100 S. Ct. at 2185, 65 L. Ed. 2d at 

119. The government paid Nichols for the information. Id. Nichols 

testified at Henry’s trial, and Henry was convicted. Id. at 267, 100 S. Ct. 

at 2185, 65 L. Ed. 2d at 120.

Nichols had been a paid Government informant for more 

than a year; moreover, the FBI agent was aware that Nichols 

had access to Henry and would be able to engage him in 

conversations without arousing Henry’s suspicion. The 

arrangement between Nichols and the agent was on a 

contingent-fee basis; Nichols was to be paid only if he 

produced useful information.

Id. at 270, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122.

In its opinion, the Court concluded, “By intentionally creating a 

situation likely to induce Henry to make incriminating statements 

without the assistance of counsel, the Government violated Henry’s Sixth 

Amendment right to counsel.” Id. at 274, 100 S. Ct. at 2189, 65 L. Ed. 

2d at 125. The Court added, “Even if the agent’s statement that he did 

not intend that Nichols would take affirmative steps to secure 

incriminating information is accepted, he must have known that such 
85

propinquity likely would lead to that result.” Id. at 271, 100 S. Ct. at 

2187, 65 L. Ed. 2d at 122. Otherwise stated, the Court found that 

Nichols was “acting by prearrangement as a Government agent.” Id. at 

273, 100 S. Ct. at 2188, 65 L. Ed. 2d at 124.

We applied Henry not long after it was decided in State v. Nelson, 

325 N.W.2d 118, 120 (Iowa 1982). In that case, Jackson, an informant, 

passed a note to a jailer stating that he had information regarding 

Nelson’s case that he wanted to discuss with law enforcement. Id. at 

119. The informant met with a deputy sheriff and passed along 

incriminating statements made by Nelson in jail. Id. The deputy sheriff 

told the informant that he would put him in touch with the officers 

investigating Nelson’s case. Id. The deputy “made no promise to 

Jackson in return for the information,” and “he did not direct Jackson to 

endeavor to gather any further information.” Id. Rather, “[h]e merely 

had Jackson return to his cell to continue in the same capacity as an 

inmate.” Id. The deputy “obviously knew further conversations were 

likely.” Id. Still we reasoned that “[t]he crux is that the State had not 

‘put him [the informant] up to it.’ ” Id. After this first meeting, Jackson 

later met with law enforcement again and agreed to work for the state on 

other cases. Id.

We affirmed the trial court’s ruling that only statements made by 

Nelson after Jackson’s second meeting with law enforcement should be 

suppressed whereas statements made after the first meeting were 

admissible. Id. at 120. With respect to the first meeting, we noted both 

that the state had not directed Jackson to gather more information and 

that Jackson had no agreement with the state that he would receive 

payment or other favorable treatment for providing the information. Id. 

at 119–20. “In summary we do not believe the statements which were 
86

the subject of Jackson’s testimony were gathered by him at the time he 

was working for the State.” Id.

This case falls short of the circumstances warranting suppression 

that were described in either Henry or Nelson. At most, prior to Martin’s 

encounter with Marshall, Detective Smithey might have asked Martin a 

simple question as to whether Martin had any information about the 

Versypt killing. Again, there is no evidence the Iowa City Police 

Department knew Martin was going to be housed with Marshall, made 

arrangements for this to happen, told Martin to listen for statements by 

Marshall, or even expressed particular interest in the Versypt killing.5

The majority places great weight, apparently dispositive weight, 

upon Martin’s federal cooperation agreement. Although Martin’s plea 

bargain is not in the record, there is no indication that it included 

anything other than a typical, plain vanilla federal cooperation 

agreement. Under such an agreement, the defendant agrees to meet with 

the government and provide truthful information about criminal activity 

of which he or she is aware, and the government agrees to move for a 

downward sentencing departure if the defendant ends up providing 

substantial assistance to the government. See, e.g., United States v. 

Cimino, 381 F.3d 124, 125 n.1 (2d Cir. 2004); United States v. Tejada, 

773 F. Supp. 622, 624 (S.D.N.Y. 1991).

5The majority points to testimony given by Detective Smithey on crossexamination that it would “[p]robably” be “reasonable to assume” that after the July 

2011 meeting, Johnson was “going to tell other snitches” that the government wants to 

know about the Versypt killing and the people the government was interested in. 

However, Martin denied discussing Marshall with Johnson, and Johnson likewise 

denied discussing Marshall with Martin. Moreover, the three individuals who were 

persons of interest in the Versypt killing—Marshall, Thompson, and White—were 

already widely known to the general public.

 
87

So, the question becomes, in effect, if an individual enters into a 

standard cooperation agreement, does that individual become a 

government agent with respect to any matters in which the government 

happens to have interest?

A number of federal circuits would say no under their bright-line 

approach. They hold that a cooperation agreement is not enough unless 

the informant is “instructed by the police to get information about the 

particular defendant.” United States v. Whitten, 610 F.3d 168, 193 (2d 

Cir. 2010) (quoting United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 

1997)); see United States v. LaBare, 191 F.3d 60, 65–66 (1st Cir. 1999); 

Moore, 178 F.3d at 999. Clearly that did not occur here.

The majority is correct that many circuits do not follow the brightline approach. But when one reviews the facts and holdings of these 

cases, none of them are helpful to Marshall.

Thus, the Third Circuit has found that a combination of an 

informant’s “tacit agreement with the government” to receive potentially 

favorable sentencing treatment and the government’s deliberate placing 

of the informant in a cell with another inmate to obtain information from 

the inmate could amount to a Massiah violation. United States v. Brink, 

39 F.3d 419, 424 (3d Cir. 1994). The Fourth Circuit requires that “the 

prosecutors have intentionally placed the informant in the jail cell with 

instructions to elicit a confession, or . . . there has been an agreement 

promising consideration for a confession from a particular defendant.” 

United States v. McFadden, 187 F. App’x 290, 294 (4th Cir. 2006). The 

Fifth Circuit has approved a test for agency under which the informant 

must have “acted pursuant to instructions from the State, or otherwise 

submitted to the State’s control.” Creel v. Johnson, 162 F.3d 385, 393 

(5th Cir. 1998). Similarly, the Seventh Circuit has refused to find a 
88

Massiah violation when “[t]he evidence demonstrated no government 

control over [the informant’s] actions; most importantly, there was no 

control over [the informant’s] decision to arrange a meeting with [the 

defendant].” United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995). The 

Ninth Circuit has held that a Massiah violation can occur when the 

informant is intentionally “put back in the cell with [the defendant]” after 

meeting with law enforcement and indicating a “willingness to cooperate 

with the prosecution” even without a promise of leniency. Randolph v. 

California, 380 F.3d 1133, 1146–47 (9th Cir. 2004). Meanwhile, the D.C. 

Circuit rejected a Sixth Amendment claim when the informant “was 

acting as an entrepreneur” and the government had not encouraged or 

instructed him to speak with the defendant in jail. United States v. 

Watson, 894 F.2d 1345, 1348 (D.C. Cir. 1990). 

As can be seen, the nonbright-line circuits are not uniform in their 

approaches. However, under any of these standards Marshall has failed 

to establish that Martin was acting as a government agent. Martin had 

received no instructions from the State, and his encounters with 

Marshall in the same segregation unit of the jail were pure 

happenstance.

The majority attempts to use United States v. York, to support its 

“informant at large” theory. See York, 933 F.2d 1343 (7th Cir. 1991), 

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

Cir. 1999). The case is easily distinguishable. In that case, the 

informant had a longstanding relationship with the FBI and was 

reporting to the FBI on a weekly basis and making monitored phone calls 

on the FBI’s behalf. Id. at 1357–58. After giving the information to the 

FBI that was used against the defendant, he received $5000 from the 

FBI. Id. at 1358. Additionally, the FBI agent “told [the informant] the 
89

type of information he was interested in receiving; that statement was 

tantamount to an invitation to [the informant] to go out and look for that 

type of information.” Id. In dicta, the Seventh Circuit concluded that an 

agency relationship existed between the FBI and the informant, although 

it ultimately found there had been no deliberate elicitation and therefore 

no Massiah violation. Id. at 1358–60.

The Seventh Circuit’s test for agency was based on traditional 

common law agency principles, and under the egregious facts of York the 

Seventh Circuit said that the informant served as an agent subject to the 

government’s control. See id. at 1357–58. However, it is noteworthy that 

the court today disclaims a common law agency test. It is also 

noteworthy that more recently, the Seventh Circuit declined to find 

agency when the informant discussed with the government his plan to 

meet with the defendant, but there was no government control over the 

informant’s actions or his decision to arrange a meeting with the 

defendant. See Li, 55 F.3d at 328.

Another informant-at-large case, Commonwealth v. Moose, is also 

factually distinguishable from what occurred here. See 602 A.2d 1265 

(Pa. 1992). In that case, the informant had been intentionally “kept in 

the county jail for three years because he was supplying the district 

attorney’s office with information about various inmates.” Id. at 1270. 

In fact, this informant “was called the ‘monsignor’ because so many 

inmates allegedly confessed to him.” Id. The Pennsylvania Supreme 

Court concluded that even though the informant “was not planted for the 

purpose of gaining information from a targeted defendant,” “[t]he fact 

that the Commonwealth intentionally left him there to harvest 

information from anyone charged with a crime and awaiting trial is the 
90

villainy.” Id. Again, these extreme facts that supported a finding of 

agency bear no resemblance to the record here.

The majority also cites Ayers v. Hudson, 623 F.3d 301, 312 (6th 

Cir. 2010), to support its view that “a wink and a nod” can establish 

agency. The Sixth Circuit disavows the bright-line approach. Id. at 311. 

(“We agree with those courts that do not limit agency in the Massiah

context to cases where the State gave the informant instructions to 

obtain evidence from a defendant.”). Yet once again, the facts of the case 

cited by the majority are quite different from here. In Ayers, the 

defendant confessed to an informant sharing his jail pod that he had 

committed a murder. Id. at 305. The informant contacted the police and 

met with detectives to relay this information. Id. At that time, the 

informant could not provide the detectives with information about the 

murder weapon or money stolen from the victim. Id. The detectives’ 

report specifically noted this information was missing. Id. The detectives 

returned the informant to the jail pod and “within an hour or so” 

thereafter, the informant directly questioned the defendant regarding the 

murder weapon and the stolen money. Id. at 305–06. The Sixth Circuit 

suppressed the statements regarding the weapon and the money that the 

informant had obtained from the defendant within an hour after meeting 

with the detectives. Id. at 310.

By contrast, in the present case, the State did not intentionally 

place Martin in proximity to Marshall so he could procure additional 

information. Moreover, the record in Ayers strongly suggested the 

informant had been given specific guidance by the police, considering 

that he immediately sought out the two pieces of information the 

detectives wanted. See id. at 305. No such guidance was given to 

Martin.
91

The only appellate decision I am aware of that might help Marshall 

establish agency under the facts of this case comes from the 

Massachusetts Supreme Judicial Court. See Commonwealth v. Murphy, 

862 N.E.2d 30 (Mass. 2007). Murphy was found guilty of murder 

following a trial at which an informant testified to statements Murphy 

made in jail. Id. at 34–35. The informant had entered into a plea 

agreement with the United States Attorney’s Office and subsequently met 

Murphy in jail. Id. at 34. Under the terms of the plea agreement, “if the 

informant provided ‘substantial assistance’ to the government, in the 

discretion of the United States Attorney’s office,” the informant could 

potentially receive a lesser sentence. Id. at 36. The informant did not 

have any agreement with any Massachusetts authorities. Id. at 35. The 

informant did two favors for Murphy to lure him into a false sense of 

trust, before asking Murphy what he did about his anger toward the 

victim. Id. at 44–45. The court concluded that the informant had acted 

as a government agent and found a violation of both the Sixth 

Amendment and its counterpart in the Massachusetts Constitution. Id. 

at 46. The court explained,

[W]here the government has entered into an “articulated

agreement containing a specific benefit,” or promise thereof, 

the recipient inmate is a government agent for purposes of 

the Sixth Amendment to the United States Constitution and 

art. 12 of the Massachusetts Declaration of Rights even if the 

inmate is not directed to target a specific individual.

Id. at 33 (quoting Commonwealth v. Reynolds, 708 N.E.2d 658, 664 

(Mass. 1999)).

I do not agree with this decision, which essentially holds that a 

generic cooperation agreement is enough to confer government agent 

status on an individual. See Whitten, 610 F.3d at 193 (“More than a 

cooperation agreement is required to make an informant a government 
92

agent with regard to a particular defendant.”). Generally, of course, the 

mere existence of an agreement containing a quid pro quo does not make 

one party the agent of the other. Contract law teaches us that all 

enforceable agreements have a quid pro quo, but that does not mean the 

parties become agents of each other. See Restatement (Third) of Agency 

§ 1.01 cmt. c, at 19 (Am. Law Inst. 2006) (“Not all relationships in which 

one person provides services to another satisfy the definition of agency.”). 

There must be some element of control, based on an actual instruction to 

target a specific defendant, as several circuits hold, or some other form of 

supervision, such as intentionally placing the informant directly with the 

defendant in order to obtain information from the defendant. Even 

foreseeability that the informant would engage with the defendant, which 

we do not have here, was not enough according to our Nelson decision. 

See Nelson, 325 N.W.2d at 119–20 (finding the informant was not 

“working for the State” because the State “had not ‘put him up to it’ ” 

even though the State “obviously knew further conversations were 

likely”). Here there is simply no indication that Detective Smithey 

directed or controlled Martin’s activities.

My colleagues do not approve of a direction-or-control requirement. 

But the law as established by the United States Supreme Court requires

that the informant be a government “agent.” See Massiah, 377 U.S. at 

206, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250. And to be an agent one 

must agree to act on a principal’s behalf and be subject to the principal’s 

control. See Restatement (Third) of Agency § 1.01, at 17. So, a control 

element focuses the inquiry where it should be focused.

By resorting to circular reasoning, the court leaves a hole in its 

analysis. The majority states, “[A] court must determine—under all the 

facts and circumstances—whether the relationship between the state and 
93

an informant is such that the state has violated its affirmative duty . . . 

to protect the Sixth Amendment rights of defendants.” This circular 

standard is no standard at all. Rather, it simply restates the ultimate 

issue—i.e., whether the Sixth Amendment has been violated. 

Given this circularity, we need to consider what as a practical 

matter the court relies on to find agency here. As in Murphy, it is merely 

the existence of a generic cooperation agreement between Martin and the 

federal government.

Given the nature of federal sentencing, federal defendants are often 

motivated to inform on other inmates with or without a cooperation 

agreement. See 18 U.S.C. § 3553(e) (2012) (“Upon motion of the 

Government, the court shall have the authority to impose a sentence 

below a level established by statute as a minimum sentence so as to 

reflect a defendant’s substantial assistance in the investigation or 

prosecution of another person who has committed an offense”). 

“Entrepreneurs and volunteers are not government agents.” United 

States v. Johnson, 338 F.3d 918, 924 (8th Cir. 2003). Marshall fell prey 

to the self-interest of other inmates, not government interference with his 

right to counsel. This is clearly not a case where the government acted 

“to circumvent the right to the assistance of counsel.” Moulton, 474 U.S. 

at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496. Because Martin was not 

acting as a government agent, Marshall’s Sixth Amendment rights were 

not violated.

IV. Martin Did Not Deliberately Elicit Statements from 

Marshall.

Marshall’s Massiah claim also fails because Martin did not 

deliberately elicit statements from him. The Supreme Court has 

explained the reasoning behind this prong of the inquiry:
94

[T]he primary concern of the Massiah line of decisions is 

secret interrogation by investigatory techniques that are the 

equivalent of direct police interrogation. Since “the Sixth 

Amendment is not violated whenever—by luck or 

happenstance—the State obtains incriminating statements 

from the accused after the right to counsel has attached,” a 

defendant does not make out a violation of that right simply 

by showing that an informant, either through prior 

arrangement or voluntarily, reported his incriminating 

statements to the police. Rather, the defendant must 

demonstrate that the police and their informant took some 

action, beyond merely listening, that was designed 

deliberately to elicit incriminating remarks.

Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384–85 

(quoting Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 

496). It should be noted that the burden of proving deliberate elicitation, 

like agency, rests with the defendant. See id. (“[T]he defendant must 

demonstrate . . . .”).

Justice Powell’s concurrence in Henry makes clear that “the Sixth 

Amendment is not violated when a passive listening device collects, but 

does not induce, incriminating comments” and that “the mere presence 

of jailhouse informant who had been instructed to overhear 

conversations and to engage a criminal defendant in some conversations 

would not necessarily be unconstitutional.” Henry, 447 U.S. at 276, 100 

S. Ct. at 2190, 65 L. Ed. 2d at 126 (Powell, J., concurring). It is Justice 

Powell’s concurrence that the Supreme Court cited and relied on in 

Kuhlmann and Moulton when it clarified the deliberate-elicitation 

element. See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2629–30, 91 

L. Ed. 2d at 384; Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 

2d at 496.

Before I get to Martin, I would like to briefly comment on Johnson. 

The court concedes only grudgingly that Johnson did not deliberately 

elicit incriminating information from Marshall. In fact, the only question 
95

that Johnson asked Marshall was the classic icebreaker: What are you in 

for? As Johnson testified, “I knew [Marshall] so I asked him what was he 

in there for.” Kuhlmann makes clear that establishing deliberate 

elicitation requires more. See 477 U.S. at 459, 106 S. Ct. at 2629–30, 91 

L. Ed. 2d at 384 (condemning techniques that are “the equivalent of 

direct police interrogation”). Asking one question of such a generic 

nature does not amount to the functional equivalent of interrogation. 

See United States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993) (finding that a 

witness who ran into the defendant unexpectedly in jail and asked the 

defendant why he was there did not try to solicit information). The trial 

testimony reveals that Marshall initiated the more detailed discussions 

about the shooting of Versypt. As Johnson testified,

Q. . . . . And he just happened to start suddenly 

talking to you about his case? A. He didn’t just start talking 

to me over just a couple days. He started talking to me, yes.

. . . .

Q. And only when you’re alone in segregation does he 

suddenly open up to you, correct? A. Yeah. He told me 

about it a little bit, yeah.

There is no evidence that Johnson asked Marshall any additional 

questions or even made suggestive comments when Marshall was 

describing to him the circumstances of Versypt’s death.

This should end any need to discuss Johnson further, but the 

court goes on. In particular, it indicates that Marshall’s trial counsel 

may have been ineffective, that counsel’s supposed failure to crossexamine Johnson on the subject of elicitation was “remarkable,” and that 

counsel may not have been aware of the deliberate-elicitation 

requirement. Although I agree with the court’s ultimate resolution of the 

Massiah claim regarding Johnson, these innuendoes are unfair. The 
96

questions and answers quoted above come from defense counsel’s crossexamination of Johnson. The deliberate-elicitation requirement had just 

been discussed at some length when the court ruled on the motion to 

suppress the previous afternoon.6

Courts addressing Massiah claims with facts like these have found 

that no deliberate elicitation occurred. See, e.g., United States v. 

Jacques, 684 F.3d 324, 330–32 (2d Cir. 2012) (holding that no violation 

of the right to counsel occurred when a friend of the defendant 

cooperated with the FBI in speaking to the defendant through a series of 

monitored phone calls and the friend asked no more than a few 

questions that were not of “a probing nature”); Whitten, 610 F.3d at 192–

94 (denying Sixth Amendment claim when the defendant volunteered 

incriminating information during conversation that the defendant 

6Obviously, cross-examination is more an art than a science. Defense lawyers 

need to weigh the downside of bringing out or reinforcing that which harms their clients 

against the upside of bringing out or reinforcing that which helps their clients. We were 

not on the scene making these difficult decisions in real time.

For related reasons, I do not see the relevance of United States v. Pannell, 510 F. 

Supp. 2d 185 (E.D.N.Y. 2007). In that case, the district court made a specific finding 

based on its own observations that the informant was not credible:

Miller testified that he never asked Pannell any questions about 

his case and that Pannell volunteered the information during lengthy 

conversations about general, everyday matters. Having carefully 

observed Miller, his testimony that Pannell volunteered detailed 

incriminating information—as memorialized in Miller’s notes—without 

any prompting or encouragement from Miller cannot be credited . . . . 

Miller was evasive and gave conclusory answers when questioned as to 

how Pannell had provided such painstakingly detailed information about 

his involvement in the post office robbery, repeatedly saying, “we 

conversated.” Indeed, Miller would not acknowledge that, in the course 

of their conversations, even on everyday matters, he had ever asked 

Pannell a single question. I therefore discredit Miller’s testimony that he 

never asked Pannell any questions about his case nor encouraged him to 

speak of it.

Id. at 192. In contrast, the district court here made no such finding. And unlike the 

trial judge, we did not have the opportunity to see and hear the witnesses.

 
97

initiated); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 895–96 (3d 

Cir. 1999) (finding no deliberate elicitation when the defendant had 

reached out to informant and the informant had largely just listened, 

asking only “a few clarifying questions”); Lightbourne, 829 F.2d at 1021 

(finding that an alleged Sixth Amendment violation was not supported by 

sufficient evidence where the informant “took no actions to stimulate the 

incriminating remarks”); Wallace v. Price, 265 F. Supp. 2d 545, 569 

(W.D. Pa. 2003) (noting there was “no evidence that [the informant] 

initiated the conversation with [the defendant]” and upholding 

magistrate’s ruling that the defendant had failed to direct the court to 

any evidence that the informant deliberately elicited statements). 

Turning to Martin, the court today says “there is no doubt that he 

deliberately elicited incriminating statements from Marshall.” I disagree. 

Events happened in the following sequence. First, Marshall denied 

involvement in the Versypt killing to Martin. Then, over time, Marshall 

“started switching his story up,” according to Martin. Marshall told 

Martin he had a gun with which he shot Versypt when Versypt startled 

him. Marshall added that he had wiped off the gun and run away. At 

that point, Marshall asked Martin for advice on manslaughter. Martin 

researched manslaughter for Marshall and reported back. Only then did 

Martin recommend that Marshall write down his “side of the story . . . to 

get a lesser charge.” Marshall provided his written statement with the 

mutual understanding and plan that this statement would be passed 

along to law enforcement:

Q. When you were speaking with your attorney and to 

Officer Smithey, did you think that you were helping Justin 

Marshall? A. Yes.

Q. Did you believe that you were doing what Mr. 

Marshall had asked you to do? A. Yes.
98

Viewing the entire sequence of events, Martin did not engage in 

deliberate elicitation. Marshall voluntarily told Martin what had 

happened and asked for Martin’s legal advice on getting a lesser charge. 

Thereupon Martin advised Marshall to write down his story so Martin 

could deliver it to Martin’s attorney and from there to law enforcement. 

This was poor advice, but it wasn’t deliberate elicitation. This case to 

some extent resembles United States v. Booker, where the defendant 

“voluntarily approached Blickley and sought his assistance researching 

certain legal issues relating to this case.” No. 05-313 (JBS), 2006 WL 

242509, at *8 (D.N.J. Feb. 2, 2006). As the court described in that case:

[T]he entire purpose of Booker’s request was to enlist 

Blickley’s help. . . . . [T]hat task necessarily required Booker 

to furnish Blickley with details about his case. Moreover, 

Blickley actually furnished advice to Booker, based on 

research, regarding suppression of evidence in this case and 

legal issues in other matters, and Blickley drafted a 

memorandum for Booker that led to the dismissal of 

unrelated bank robbery charges against Booker under the 

Speedy Trial Act, according to Blickley’s testimony. It is 

understandable that a lot of talking transpired between 

Blickley and Booker in January given the range of legal 

assistance Booker was seeking from Blickley. That Blickley 

may have asked certain clarifying questions of Booker during 

their many conversations, or that Blickley told Booker to be 

completely truthful, does not alter the voluntariness of 

Booker’s disclosures.

Id.

Moreover, in this case, Marshall knew Martin would be passing 

along his written statement to law enforcement. Thus, concerns about 

an “undisclosed undercover informant” and “surreptitious interrogations” 

were simply absent here. Henry, 447 U.S. at 273, 100 S. Ct. at 2188, 65 

L. Ed. 2d at 123–24; Massiah, 377 U.S. at 206, 84 S. Ct. at 1203, 88 

L. Ed. at 250. Again, as the Supreme Court put it in Kuhlmann, “[T]he 

primary concern of the Massiah line of decisions is secret interrogation 
99

by investigatory techniques that are the equivalent of direct police 

interrogation.” Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 

2d at 384. In Kuhlmann, an undisclosed informant commented to the 

defendant that his initial version of what happened “didn’t too sound too 

good”; a few days later, the defendant made incriminating statements. 

Id. at 439–40, 106 S. Ct. at 2619–20, 91 L. Ed. 2d at 372. Yet, 

considering the entire “interaction,” the Court found that no deliberate 

elicitation had occurred. Id. at 460, 106 S. Ct. at 2630, 91 L. Ed. 2d at 

385. Looking at the entire interaction here, I think this is an easier case 

than Kuhlmann: There was nothing “secret” here. Martin was open about 

what he was doing and advised Marshall to write down his story only 

after Marshall had given Martin the same story orally and asked for 

Martin’s legal advice. 

V. Conclusion.

For the reasons stated, I would affirm Marshall’s conviction and 

the well-reasoned suppression ruling of the district court.

Waterman and Zager, JJ., join this concurrence in part and 

dissent in part.