447 U.S. 264 (1980), 79-121, United States v. Henry

Docket Nº:No. 79-121
Citation:447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115
Party Name:United States v. Henry
Case Date:June 16, 1980
Court:United States Supreme Court

Page 264

447 U.S. 264 (1980)

100 S.Ct. 2183, 65 L.Ed.2d 115

United States



No. 79-121

United States Supreme Court

June 16, 1980

Argued January 16, 1980




After respondent was indicted for armed robbery of a bank, and while he was in jail pending trial, Government agents contacted an informant who was then an inmate confined in the same cellblock as respondent. An agent instructed the informant to be alert to any statements made by federal prisoners but not to initiate conversations with or question respondent regarding the charges against him. After the informant had been released from jail, he reported to the agent that he and respondent had engaged in conversation and that respondent made incriminating statements about the robbery. The informant was paid for furnishing the information. At respondent's trial, which resulted in a conviction, the informant testified about the incriminating statements that respondent had made to him. Respondent moved to vacate his sentence on the ground that the introduction of the informant's testimony interfered [100 S.Ct. 2184] with and violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion, but the Court of Appeals reversed, holding that the Government's actions impaired respondent's Sixth Amendment rights under Massiah v. United States, 377 U.S. 201.

Held: Respondent's statements to the informant should not have been admitted at trial. By intentionally creating a situation likely to induce respondent to make incriminating statements without the assistance of counsel, the Government violated respondent's Sixth Amendment right to counsel. Under the facts -- particularly the facts that the informant was acting under instructions as a paid informant for the Government while ostensibly no more than a fellow inmate, and that respondent was in custody and under indictment at the time -- incriminating statements were "deliberately elicited" from respondent within the meaning of Massiah. Since respondent was unaware that the informant was acting for the Government, he cannot be held to have waived his right to the assistance of counsel. Pp. 269-275.

590 F.2d 544, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, POWELL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 275. BLACKMUN, J., filed a dissenting

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opinion, in which WHITE, J., joined, post, p. 277. REHNQUIST, J., filed dissenting opinion, post, p. 289.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to consider whether respondent's Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody. 444 U.S. 824 (1979).


The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August, 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one "Allen R. Norris" and a lease, also signed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunmen.

Government agents traced the rent receipt to Henry; on the basis of this information, Henry was arrested in Atlanta, Ga., in November, 1972. Two weeks later, he was indicted for

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armed robbery under 18 U.S.C. §§ 2113(a) and (d). He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27.

On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery.1

Nichols informed the agent that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. The 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 [100 S.Ct. 2185] robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation, and that Henry had told him about the robbery of the Janaf bank.2 Nichols was paid for furnishing the information.

When Henry was tried in March, 1973, an agent of the

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Federal Bureau of Investigation testified concerning the events surrounding the discovery of the rental slip and the evidence uncovered at the rented house. Other witnesses also connected Henry to the rented house, including the rental agent, who positively identified Henry as the "Allen R. Norris" who had rented the house and had taken the rental receipt described earlier. A neighbor testified that, prior to the robbery, she saw Henry at the rented house with John Luck, one of the two men who had by the time of Henry's trial been convicted for the robbery. In addition, palm prints found on the lease agreement matched those of Henry.

Nichols testified at trial that he had "an opportunity to have some conversations with Mr. Henry while he was in the jail," and that Henry told him that, on several occasions, he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant.

On the basis of this testimony,3 Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years. On appeal, he raised no Sixth Amendment claims. His conviction was affirmed, judgt. order reported at 483 F.2d 1401 (CA4 1973), and his petition to this Court for a writ of certiorari was denied. 421 U.S. 915 (1975).

On August 28, 1975, Henry moved to vacate his sentence pursuant to 28 U.S.C. § 2255.4 At this stage, he stated that

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he had just learned that Nichols was a paid Government informant and alleged that he had been intentionally placed in the same cell with Nichols so that Nichols could secure information about the robbery. Thus, Henry contended that the introduction of Nichols' testimony violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion without a hearing. The Court of Appeals, however, reversed and remanded for an evidentiary inquiry into "whether the witness [Nichols] was acting as a government agent during his interviews with Henry."

On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent's relationship with Nichols and relating the following conversation:

[100 S.Ct. 2186]

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

The agent's affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry.

The District Court again denied Henry's § 2255 motion, concluding that Nichols' testimony at trial did not violate Henry's

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Sixth Amendment right to counsel. The Court of Appeals reversed and remanded, holding that the actions of the Government impaired the Sixth Amendment rights of the defendant under Massiah v. United States, 377 U.S. 201 (1964). The court noted that Nichols had engaged in conversation with Henry and concluded that, if by association, by general conversation, or both, Nichols had developed a relationship of trust and confidence with Henry such that Henry revealed incriminating information, this constituted interference with the right to the assistance of counsel under the Sixth Amendment.5 590 F.2d 544 (1978).


This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are "critical stages" of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. See, e.g., United States v. Ash, 413 U.S. 300 (1973); United States v. Wade, 388 U.S. 218 (1967). The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry's incriminating statements as voluntary, and not the result of any affirmative conduct...

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