Amended September 20, 2016 State of Iowa v. Justin Alexander Marshall ( 2016 )


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  •               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 Rich-
    
    Chappel, 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-to-
    
    counsel 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 Thompson 1 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
                                         6
    
    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
                                          10
    
    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 ten-
    
    day 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 cross-
    
    examination, 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 twenty-
    
    one 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 cross-
    
    examination 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 bright-
    
    line 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
    
    
           2Idiscuss 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 cross-
    examination 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 bright-
    
    line 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 cross-
    
    examine 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 cross-
    
    examination 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.