## Facts

- Henry was indicted for armed bank robbery and held in the Norfolk City Jail pending trial.
- Nichols, incarcerated on unrelated charges, was a paid FBI informant housed in Henry’s cellblock.
- An FBI agent instructed Nichols to be alert to statements by federal prisoners and report them, but not to initiate conversations with or question Henry about the charges.
- Nichols nevertheless engaged Henry in conversations in the cellblock, during which Henry made incriminating statements about the robbery.
- After Nichols’s release, the FBI paid him for the information, and he testified at Henry’s trial about Henry’s statements.
- Henry was convicted; his postconviction challenge asserted that admitting Nichols’s testimony violated the Sixth Amendment under Massiah.
- The district court denied relief; the Fourth Circuit reversed; the Supreme Court affirmed the Fourth Circuit.

## Issues

1. Whether, after indictment, the government violates the Sixth Amendment by using a paid jailhouse informant to obtain incriminating statements from the accused outside the presence of counsel.
2. Whether the informant’s conduct and government involvement constituted “deliberate elicitation” under Massiah, even absent formal questioning.
3. Whether the accused can knowingly and voluntarily waive the Sixth Amendment right to counsel by speaking with an undisclosed government informant.

## Decision

- The Supreme Court affirmed the judgment for Henry, holding the Sixth Amendment right to counsel was violated.
- Nichols functioned as a government agent based on his paid informant relationship and the FBI’s instructions to listen and report.
- The government intentionally created a situation likely to induce Henry to make incriminating statements without counsel by placing a paid informant in close proximity to an indicted, jailed defendant.
- Nichols was not merely a passive listener; he stimulated conversations and took affirmative steps to secure incriminating information.
- Any waiver theory failed because Henry did not know Nichols was acting for the government; his statements were inadmissible.

## Legal Principles

- After the right to counsel attaches (post-indictment), the government may not deliberately elicit incriminating statements from the accused outside counsel’s presence.
- “Deliberate elicitation” can occur without direct interrogation when the government intentionally creates circumstances likely to produce incriminating statements through an informant acting as a government agent.
- The government is responsible for the foreseeable effects of placing a paid informant near an indicted defendant, even if the informant is told not to question the defendant.
- A knowing and voluntary Sixth Amendment waiver generally cannot be established through communications with an undisclosed informant acting for the government.

## Conclusion

The Court held that the government violated Henry’s Sixth Amendment right to counsel by using a paid jailhouse informant, operating as a government agent after indictment, to obtain incriminating statements through deliberate elicitation in circumstances the government set up to produce uncounseled admissions.


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