477 U.S. 436 (1986)

KUHLMANN, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY
v.
WILSON

No. 84-1479.

Supreme Court of United States.

Argued January 14, 1986 Decided June 26, 1986 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

*438 Steven R. Kartagener argued the cause for petitioner. With him on the briefs were Mario Merola and Jeremy Gutman.

Philip S. Weber argued the cause and filed a brief for respondent.

JUSTICE POWELL announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, and an opinion with respect to Parts II and III in which THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join.

This case requires us to define the circumstances under which federal courts should entertain a state prisoner's petition for writ of habeas corpus that raises claims rejected on a prior petition for the same relief.

I

In the early morning of July 4, 1970, respondent and two confederates robbed the Star Taxicab Garage in the Bronx, New York, and fatally shot the night dispatcher. Shortly *439 before, employees of the garage had observed respondent, a former employee there, on the premises conversing with two other men. They also witnessed respondent fleeing after the robbery, carrying loose money in his arms. After eluding the police for four days, respondent turned himself in. Respondent admitted that he had been present when the crimes took place, claimed that he had witnessed the robbery, gave the police a description of the robbers, but denied knowing them. Respondent also denied any involvement in the robbery or murder, claiming that he had fled because he was afraid of being blamed for the crimes.

After his arraignment, respondent was confined in the Bronx House of Detention, where he was placed in a cell with a prisoner named Benny Lee. Unknown to respondent, Lee had agreed to act as a police informant. Respondent made incriminating statements that Lee reported to the police. Prior to trial, respondent moved to suppress the statements on the ground that they were obtained in violation of his right to counsel. The trial court held an evidentiary hearing on the suppression motion, which revealed that the statements were made under the following circumstances.

Before respondent arrived in the jail, Lee had entered into an arrangement with Detective Cullen, according to which Lee agreed to listen to respondent's conversations and report his remarks to Cullen. Since the police had positive evidence of respondent's participation, the purpose of placing Lee in the cell was to determine the identities of respondent's confederates. Cullen instructed Lee not to ask respondent any questions, but simply to "keep his ears open" for the names of the other perpetrators. Respondent first spoke to Lee about the crimes after he looked out the cellblock window at the Star Taxicab Garage, where the crimes had occurred. Respondent said, "someone's messing with me," and began talking to Lee about the robbery, narrating the same story that he had given the police at the time of his arrest. Lee advised respondent that this explanation "didn't *440 sound too good,"^[1] but respondent did not alter his story. Over the next few days, however, respondent changed details of his original account. Respondent then received a visit from his brother, who mentioned that members of his family were upset because they believed that respondent had murdered the dispatcher. After the visit, respondent again described the crimes to Lee. Respondent now admitted that he and two other men, whom he never identified, had planned and carried out the robbery, and had murdered the dispatcher. Lee informed Cullen of respondent's statements and furnished Cullen with notes that he had written surreptitiously while sharing the cell with respondent.

After hearing the testimony of Cullen and Lee,^[2] the trial court found that Cullen had instructed Lee "to ask no questions of [respondent] about the crime but merely to listen as to what [respondent] might say in his presence." The court determined that Lee obeyed these instructions, that he "at no time asked any questions with respect to the crime," and that he "only listened to [respondent] and made notes regarding what [respondent] had to say." The trial court also found that respondent's statements to Lee were "spontaneous" and "unsolicited." Under state precedent, a defendant's volunteered statements to a police agent were admissible in evidence because the police were not required to prevent talkative defendants from making incriminating statements. See People v. Kaye, 25 N. Y. 2d 139, 145, 250 N. E. 2d 329, 332 (1969). The trial court accordingly denied the suppression motion.

*441 The jury convicted respondent of common-law murder and felonious possession of a weapon. On May 18, 1972, the trial court sentenced him to a term of 20 years to life on the murder count and to a concurrent term of up to 7 years on the weapons count. The Appellate Division affirmed without opinion, People v. Wilson, 41 App. Div. 2d 903, 343 N. Y. S. 2d 563 (1973), and the New York Court of Appeals denied respondent leave to appeal.

On December 7, 1973, respondent filed a petition for federal habeas corpus relief. Respondent argued, among other things, that his statements to Lee were obtained pursuant to police investigative methods that violated his constitutional rights. After considering Massiah v. United States, 377 U. S. 201 (1964), the District Court for the Southern District of New York denied the writ on January 7, 1977. The record demonstrated "no interrogation whatsoever" by Lee and "only spontaneous statements" from respondent. In the District Court's view, these "fact[s] preclude[d] any Sixth Amendment violation."

A divided panel of the Court of Appeals for the Second Circuit affirmed. Wilson v. Henderson, 584 F. 2d 1185 (1978). The court noted that a defendant is denied his Sixth Amendment rights when the trial court admits in evidence incriminating statements that state agents " `had deliberately elicited from him after he had been indicted and in the absence of counsel.' " Id., at 1189, quoting Massiah v. United States, supra, at 206. Relying in part on Brewer v. Williams, 430 U. S. 387 (1977), the court reasoned that the "deliberately elicited" test of Massiah requires something more than incriminating statements uttered in the absence of counsel. On the facts found by the state trial court, which were entitled to a presumption of correctness under 28 U. S. C. § 2254(d), the court held that respondent had not established a violation of his Sixth Amendment rights.^[3] We denied a *442 petition for a writ of certiorari. Wilson v. Henderson, 442 U. S. 945 (1979).

Following this Court's decision in United States v. Henry, 447 U. S. 264 (1980), which applied the Massiah test to suppress statements made to a paid jailhouse informant, respondent decided to relitigate his Sixth Amendment claim. On September 11, 1981, he filed in state trial court a motion to vacate his conviction. The judge denied the motion, on the grounds that Henry was factually distinguishable from this case,^[4] and that under state precedent Henry was not to be given retroactive effect, see People v. Pepper, 53 N. Y. 2d 213, 423 N. E. 2d 366 (1981). The Appellate Division denied respondent leave to appeal.

On July 6, 1982, respondent returned to the District Court for the Southern District of New York on a habeas petition, again arguing that admission in evidence of his incriminating statements to Lee violated his Sixth Amendment rights. Respondent contended that the decision in Henry constituted a new rule of law that should be applied retroactively to this case. The District Court found it unnecessary to consider retroactivity because it decided that Henry did not undermine the Court of Appeals' prior disposition of respondent's Sixth Amendment claim. Noting that Henry reserved the question whether the Constitution forbade admission in evidence of an accused's statements to an informant who made "no effort to stimulate conversations about the crime charged," see United States v. Henry, supra, at 271, n. 9, *443 the District Court believed that this case presented that open question and that the question must be answered negatively. The District Court noted that the trial court's findings were presumptively correct, see 28 U. S. C. § 2254(d), and were fully supported by the record. The court concluded that these findings were "fatal" to respondent's claim under Henry since they showed that Lee made no "affirmative effort" of any kind "to elicit information" from respondent.

A different, and again divided, panel of the Court of Appeals reversed. Wilson v. Henderson, 742 F. 2d 741 (1984). As an initial matter, the court stated that, under Sanders v. United States, 373 U. S. 1 (1963), the "ends of justice" required consideration of this petition, notwithstanding the fact that the prior panel had determined the merits adversely to respondent. 742 F. 2d, at 743. The court then reasoned that the circumstances under which respondent made his incriminating statements to Lee were indistinguishable from the facts of Henry. Finally, the court decided that Henry was fully applicable here because it did not announce a new constitutional rule, but merely applied settled principles to new facts. 742 F. 2d, at 746-747. Therefore, the court concluded that all of the judges who had considered and rejected respondent's claim had erred, and remanded the case to the District Court with instructions to order respondent's release from prison unless the State elected to retry him.^[5]

*444 We granted certiorari, 472 U. S. 1026 (1985), to consider the Court of Appeals' decision that the "ends of justice" required consideration of this successive habeas corpus petition and that court's application of our decision in Henry to the facts of this case. We now reverse.

II

A

In concluding that it was appropriate to entertain respondent's successive habeas corpus petition, the Court of Appeals relied upon Sanders v. United States, 373 U. S. 1 (1963), which announced guidelines for the federal courts to follow when presented with habeas petitions or their equivalent claimed to be "successive" or an "abuse of the writ."^[6] The narrow question in Sanders was whether a federal prisoner's motion under 28 U. S. C. § 2255 was properly denied without a hearing on the ground that the motion constituted a successive application. Id., at 4-6. The Court undertook not only to answer that question, but also to explore the standard that should govern district courts' consideration of successive petitions. Sanders framed the inquiry in terms of the requirements of the "ends of justice," advising district courts to dismiss habeas petitions or their equivalent raising claims determined adversely to the prisoner on a prior petition if *445 "the ends of justice would not be served by reaching the merits of the subsequent application." Id., at 15, 16-17. While making clear that the burden of proof on this issue rests on the prisoner, id., at 17, the Court in Sanders provided little specific guidance as to the kind of proof that a prisoner must offer to establish that the "ends of justice" would be served by relitigation of the claims previously decided against him.

The Court of Appeals' decision in this case demonstrates the need for this Court to provide that guidance. The opinion of the Court of Appeals sheds no light on this important threshold question, merely declaring that the "ends of justice" required successive federal habeas corpus review. Failure to provide clear guidance leaves district judges "at large in disposing of applications for a writ of habeas corpus," creating the danger that they will engage in "the exercise not of law but of arbitrariness." Brown v. Allen, 344 U. S. 443, 497 (1953) (opinion of Frankfurter, J.). This Court therefore must now define the considerations that should govern federal courts' disposition of successive petitions for habeas corpus.

B

Since 1867, when Congress first authorized the federal courts to issue the writ on behalf of persons in state custody,^[7] this Court often has been called upon to interpret the language of the statutes defining the scope of that jurisdiction. It may be helpful to review our cases construing these frequently used statutes before we answer the specific question before us today.

Until the early years of this century, the substantive scope of the federal habeas corpus statutes was defined by reference *446 to the scope of the writ at common law, where the courts' inquiry on habeas was limited exclusively "to the jurisdiction of the sentencing tribunal." Stone v. Powell, 428 U. S. 465, 475 (1976). See Wainwright v. Sykes, 433 U. S. 72, 78, 79 (1977); see also Oaks, Legal History in the High Court — Habeas Corpus, 64 Mich. L. Rev. 451, 458-468 (1966). Thus, the finality of the judgment of a committing court of competent jurisdiction was accorded absolute respect on habeas review. See Schneckloth v. Bustamonte, 412 U. S. 218, 254-256 (1973) (POWELL, J., concurring). During this century, the Court gradually expanded the grounds on which habeas corpus relief was available, authorizing use of the writ to challenge convictions where the prisoner claimed a violation of certain constitutional rights. See Wainwright v. Sykes, supra, at 79-80; Stone v. Powell, supra, at 475-478. The Court initially accomplished this expansion while purporting to adhere to the inquiry into the sentencing court's jurisdiction. Wainwright v. Sykes, 433 U. S., at 79. Ultimately, the Court abandoned the concept of jurisdiction and acknowledged that habeas "review is available for claims of `disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.' " Ibid., quoting Waley v. Johnston, 316 U. S. 101, 104-105 (1942).

Our decisions have not been limited to expanding the scope of the writ. Significantly, in Stone v. Powell, we removed from the reach of the federal habeas statutes a state prisoner's claim that "evidence obtained in an unconstitutional search or seizure was introduced at his trial" unless the prisoner could show that the State had failed to provide him "an opportunity for full and fair litigation" of his Fourth Amendment claim. 428 U. S., at 494 (footnotes omitted). Although the Court previously had accepted jurisdiction of search and seizure claims, id., at 480, we were persuaded that any "advance of the legitimate goal of furthering Fourth Amendment rights" through application of the judicially created *447 exclusionary rule on federal habeas was "outweighed by the acknowledged costs to other values vital to a rational system of criminal justice." Id., at 494. Among those costs were diversion of the attention of the participants at a criminal trial "from the ultimate question of guilt or innocence," and exclusion of reliable evidence that was "often the most probative information bearing on the guilt or innocence of the defendant." Id., at 490. Our decision to except this category of claims from habeas corpus review created no danger that we were denying a "safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty." Id., at 491-492, n. 31. Rather, a convicted defendant who pressed a search and seizure claim on collateral attack was "usually asking society to redetermine an issue that ha[d] no bearing on the basic justice of his incarceration." Id., at 492, n. 31.

In decisions of the past two or three decades construing the reach of the habeas statutes, whether reading those statutes broadly or narrowly, the Court has reaffirmed that "habeas corpus has traditionally been regarded as governed by equitable principles." Fay v. Noia, 372 U. S. 391, 438 (1963), citing United States ex rel. Smith v. Baldi, 344 U. S. 561, 573 (1953) (dissenting opinion). See Stone v. Powell, supra, at 478, n. 11. The Court uniformly has been guided by the proposition that the writ should be available to afford relief to those "persons whom society has grievously wronged" in light of modern concepts of justice. Fay v. Noia, supra, at 440-441. See Stone v. Powell, supra, at 492, n. 31. Just as notions of justice prevailing at the inception of habeas corpus were offended when a conviction was issued by a court that lacked jurisdiction, so the modern conscience found intolerable convictions obtained in violation of certain constitutional commands. But the Court never has defined the scope of the writ simply by reference to a perceived need to assure that an individual accused of crime is afforded a trial free of constitutional error. Rather, the Court has performed its *448 statutory task through a sensitive weighing of the interests implicated by federal habeas corpus adjudication of constitutional claims determined adversely to the prisoner by the state courts. E. g., Engle v. Isaac, 456 U. S. 107, 126-129 (1982); Stone v. Powell, supra, at 489-495; Fay v. Noia, supra, at 426-434.^[8]

III

A

The Court in Sanders drew the phrase "ends of justice" directly from the version of 28 U. S. C. § 2244 in effect in 1963. The provision, which then governed petitions filed by both federal and state prisoners, stated in relevant part that no federal judge "shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person . . . , if it appears that the legality of such detention has been determined" by a federal court "on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge . . . is satisfied that the ends of justice will not be served by such inquiry." 28 U. S. C. § 2244 (1964 ed.) (emphasis added). Accordingly, in describing guidelines for successive *449 petitions, Sanders did little more than quote the language of the then-pertinent statute, leaving for another day the task of giving that language substantive content.

In 1966, Congress carefully reviewed the habeas corpus statutes and amended their provisions, including § 2244. Section 2244(b), which we construe today, governs successive petitions filed by state prisoners. The section makes no reference to the "ends of justice,"^[9] and provides that the federal courts "need not" entertain "subsequent applications" from state prisoners "unless the application alleges and is predicated on a factual or other ground not adjudicated on" the prior application "and unless the court . . . is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."^[10] In construing this language, we are cognizant that Congress adopted the section in light of the need — often recognized by this Court — to weigh the interests of the individual prisoner against the sometimes contrary interests of the State in administering a fair and rational system of criminal laws.^[11]

*450 The legislative history demonstrates that Congress intended the 1966 amendments, including those to § 2244(b), to introduce "a greater degree of finality of judgments in habeas corpus proceedings." S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) (Senate Report). Congress was concerned with the "steadily increasing" burden imposed on the federal courts by "applications by State prisoners for writs of habeas corpus."^[12]Id., at 1; see H. R. Rep. No. 1892, 89th Cong., 2d Sess., 5-6 (1966) (House Report). In many instances, the "heavy burden" created by these applications was "unnecessary" because state prisoners "have been filing applications either containing allegations identical to those asserted in a previous application that has been denied, or predicated upon grounds obviously well known to them when they filed the preceding application." Senate Report, at 2; see House Report, at 5. The Senate Report explicitly states that the "purpose" of the amendments was to "alleviate the unnecessary burden" by adding "to section 2244 . . . provisions for a qualified application of the doctrine of res judicata." Senate Report, at 2; see House Report, at 8. The House also *451 expressed concern that the increasing number of habeas applications from state prisoners "greatly interfered with the procedures and processes of the State courts by delaying, in many cases, the proper enforcement of their judgments." Id., at 5.

Based on the 1966 amendments and their legislative history, petitioner argues that federal courts no longer must consider the "ends of justice" before dismissing a successive petition. We reject this argument. It is clear that Congress intended for district courts, as the general rule, to give preclusive effect to a judgment denying on the merits a habeas petition alleging grounds identical in substance to those raised in the subsequent petition. But the permissive language of § 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances. Moreover, Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, which was amended in 1976, contains similar permissive language, providing that the district court "may" dismiss a "second or successive petition" that does not "allege new or different grounds for relief." Consistent with Congress' intent in enacting § 2244(b), however, the Advisory Committee Note to Rule 9(b), 28 U. S. C., p. 358, states that federal courts should entertain successive petitions only in "rare instances."^[13] Unless those "rare instances" are to be identified by whim or caprice, district judges must be given guidance for determining when to exercise the limited discretion granted them by § 2244(b). Accordingly, as a means of identifying the rare case in which federal courts should exercise their discretion to hear a successive petition, we continue to rely on the reference in Sanders to the "ends of justice." Our task is to provide a definition of the "ends of justice" that will accommodate Congress' intent to give finality to federal habeas judgments with *452 the historic function of habeas corpus to provide relief from unjust incarceration.

B

We now consider the limited circumstances under which the interests of the prisoner in relitigating constitutional claims held meritless on a prior petition may outweigh the countervailing interests served by according finality to the prior judgment. We turn first to the interests of the prisoner.

The prisoner may have a vital interest in having a second chance to test the fundamental justice of his incarceration. Even where, as here, the many judges who have reviewed the prisoner's claims in several proceedings provided by the State and on his first petition for federal habeas corpus have determined that his trial was free from constitutional error, a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain. As Justice Harlan observed, the guilty prisoner himself has "an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U. S., at 24-25 (dissenting).

Balanced against the prisoner's interest in access to a forum to test the basic justice of his confinement are the interests of the State in administration of its criminal statutes. Finality serves many of those important interests. Availability of unlimited federal collateral review to guilty defendants frustrates the State's legitimate interest in deterring crime, since the deterrent force of penal laws is diminished to the extent that persons contemplating criminal activity believe there is a possibility that they will escape punishment *453 through repetitive collateral attacks.^[14] See Engle v. Isaac, 456 U. S., at 127-128, n. 32. Similarly, finality serves the State's goal of rehabilitating those who commit crimes because "[r]ehabilitation demands that the convicted defendant realize that `he is justly subject to sanction, that he stands in need of rehabilitation.' " Id., at 128, n. 32 (quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963)). See Schneckloth v. Bustamonte, 412 U. S., at 262 (POWELL, J., concurring). Finality also serves the State's legitimate punitive interests. When a prisoner is freed on a successive petition, often many years after his crime, the State may be unable successfully to retry him.^[15]Peyton v. Rowe, 391 U. S. 54, 62 (1968). This result is unacceptable if the State must forgo conviction of a guilty defendant through the "erosion of memory" and "dispersion of witnesses" that occur with the passage of time that invariably attends collateral attack.^[16]*454 Engle v. Isaac, supra, at 127-128; Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-148 (1970).

In the light of the historic purpose of habeas corpus and the interests implicated by successive petitions for federal habeas relief from a state conviction, we conclude that the "ends of justice" require federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence. This standard was proposed by Judge Friendly more than a decade ago as a prerequisite for federal habeas review generally. Friendly, supra. As Judge Friendly persuasively argued then, a requirement that the prisoner come forward with a colorable showing of innocence identifies those habeas petitioners who are justified in again seeking relief from their incarceration. We adopt this standard now to effectuate the clear intent of Congress that successive federal habeas review should be granted only in rare cases, but that it should be available when the ends of justice so require. The prisoner may make the requisite showing by establishing that under the probative evidence he has a colorable claim of factual innocence. The prisoner must make his evidentiary showing even though — as argued in this case — the evidence of guilt may have been unlawfully admitted.^[17]

*455 C

Applying the foregoing standard in this case, we hold that the Court of Appeals erred in concluding that the "ends of justice" would be served by consideration of respondent's successive petition. The court conceded that the evidence of respondent's guilt "was nearly overwhelming." 742 F. 2d, at 742. The constitutional claim argued by respondent does not itself raise any question as to his guilt or innocence. The District Court and the Court of Appeals should have dismissed this successive petition under § 2244(b) on the ground that the prior judgment denying relief on this identical claim was final.^[18]

*456 IV

Even if the Court of Appeals had correctly decided to entertain this successive habeas petition, we conclude that it erred in holding that respondent was entitled to relief under United States v. Henry, 447 U. S. 264 (1980). As the District Court observed, Henry left open the question whether the Sixth Amendment forbids 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." Id., at 271, n. 9.^[19] Our review of the line of cases beginning with Massiah v. United States, 377 U. S. 201 (1964), shows that this question must, as the District Court properly decided, be answered negatively.

A

The decision in Massiah had its roots in two concurring opinions written in Spano v. New York, 360 U. S. 315 (1959). See Maine v. Moulton, 474 U. S. 159, 172 (1985). Following his indictment for first-degree murder, the defendant in Spano retained a lawyer and surrendered to the authorities. Before leaving the defendant in police custody, counsel cautioned him not to respond to interrogation. The prosecutor and police questioned the defendant, persisting in the face of his repeated refusal to answer and his repeated request to speak with his lawyer. The lengthy interrogation involved improper police tactics, and the defendant ultimately confessed. *457 Following a trial at which his confession was admitted in evidence, the defendant was convicted and sentenced to death. 360 U. S., at 316-320. Agreeing with the Court that the confession was involuntary and thus improperly admitted in evidence under the Fourteenth Amendment, the concurring Justices also took the position that the defendant's right to counsel was violated by the secret interrogation. Id., at 325 (Douglas, J., concurring). As Justice Stewart observed, an indicted person has the right to assistance of counsel throughout the proceedings against him. Id., at 327. The defendant was denied that right when he was subjected to an "all-night inquisition," during which police ignored his repeated requests for his lawyer. Ibid.

The Court in Massiah adopted the reasoning of the concurring opinions in Spano and held that, once a defendant's Sixth Amendment right to counsel has attached, he is denied that right when federal agents "deliberately elicit" incriminating statements from him in the absence of his lawyer. 377 U. S., at 206. The Court adopted this test, rather than one that turned simply on whether the statements were obtained in an "interrogation," to protect accused persons from " `indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent.' " Ibid., quoting United States v. Massiah, 307 F. 2d 62, 72-73 (1962) (Hays, J., dissenting in part). Thus, the Court made clear that it was concerned with interrogation or investigative techniques that were equivalent to interrogation, and that it so viewed the technique in issue in Massiah.^[20]

*458 In United States v. Henry, the Court applied the Massiah test to incriminating statements made to a jailhouse informant. The Court of Appeals in that case found a violation of Massiah because the informant had engaged the defendant in conversations and "had developed a relationship of trust and confidence with [the defendant] such that [the defendant] revealed incriminating information." 447 U. S., at 269. This Court affirmed, holding that the Court of Appeals reasonably concluded that the Government informant "deliberately used his position to secure incriminating information from [the defendant] when counsel was not present." Id., at 270. Although the informant had not questioned the defendant, the informant had "stimulated" conversations with the defendant in order to "elicit" incriminating information. Id., at 273; see id., at 271, n. 9. The Court emphasized that those facts, like the facts of Massiah, amounted to " `indirect and surreptitious interrogatio[n]' " of the defendant. 447 U. S., at 273.

Earlier this Term, we applied the Massiah standard in a case involving incriminating statements made under circumstances substantially similar to the facts of Massiah itself. In Maine v. Moulton, 474 U. S. 159 (1985), the defendant made incriminating statements in a meeting with his accomplice, who had agreed to cooperate with the police. During that meeting, the accomplice, who wore a wire transmitter to record the conversation, discussed with the defendant the charges pending against him, repeatedly asked the defendant to remind him of the details of the crime, and encouraged the defendant to describe his plan for killing witnesses. Id., at 165-166, and n. 4. The Court concluded that these investigatory techniques denied the defendant his right to counsel on the pending charges.^[21] Significantly, the Court emphasized that, because of the relationship between the defendant *459 and the informant, the informant's engaging the defendant "in active conversation about their upcoming trial was certain to elicit" incriminating statements from the defendant. Id.,<