Wilson's next assertion is that his incriminating statement made to his cellmate, Benny Lee, was improperly admitted at trial in violation of his Sixth Amendment right to counsel under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).

The petitioner in Massiah, Following his indictment for violation of federal narcotics laws, retained a lawyer, pleaded not guilty and was released on bail. A federal agent succeeded by surreptitious means in listening to incriminating statements elicited from the petitioner while he was free on bail. The statements were introduced against the petitioner at trial, and he was convicted. The Supreme Court reversed, holding that

the petitioner was denied the basic protections of (the right to counsel) 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 counsel.

377 U.S. at 206, 84 S. Ct. at 1203.

In the aftermath of Massiah some doubt remained as to whether all post-indictment statements made without the presence of counsel would be inadmissible, or whether such statements would be tainted only when police made a deliberate, pre-meditated effort to elicit incriminating remarks from a defendant. The Third Circuit, relying on the Supreme Court's per curiam reversal of McLeod v. Ohio, 381 U.S. 356, 85 S. Ct. 1556, 14 L. Ed. 2d 682 (1965), concluded that Massiah Rendered inadmissible all postindictment statements obtained without counsel regardless of the circumstances. United States ex rel. O'Connor v. New Jersey, 405 F.2d 632 (3rd Cir.) cert. denied, Yeager v. O'Connor, 395 U.S. 923, 89 S. Ct. 1770, 23 L. Ed. 2d 240 (1969).

This circuit, however, has plainly adopted the majority view which requires that there be some circumstance more than the mere absence of counsel before a defendant's post-indictment statement is rendered inadmissible. In United States v. Garcia, 377 F.2d 321 (2nd Cir.) cert. denied 389 U.S. 991, 88 S. Ct. 489, 19 L. Ed. 2d 484 (1967), this court refused to extend Sixth Amendment protection to a voluntary, incriminating statement made by the defendant to a federal officer where the officer was completely unaware of the existence of an indictment and was not seeking information about the crime charged in the indictment. In affirming the conviction this court said:

Massiah was thus not aimed at all post-indictment evidence gathered by the prosecution, but at the narrow situation where, after indictment, law enforcement authorities have "deliberately elicited" incriminating statements from a defendant by direct interrogation or by surreptitious means. The rule does not apply to spontaneous or voluntary statements made by the defendant in the presence of government agents.

377 F.2d at 324 (footnote deleted).

The recent Supreme Court case of Brewer v. Williams, supra, strengthened this circuit's restrictive interpretation of Massiah. In Brewer, the Court stated that "no such constitutional protection (of the right to assistance of counsel at the time the defendant made the incriminatory statements) would have come into play if there had been no interrogation." 430 U.S. at 400, 97 S.Ct. at 1240.

The trial judge in the instant case found that there had been no interrogation whatsoever by the undercover cellmate.1 Detective Cullen testified that Lee had been specifically directed to refrain from questioning Wilson; Lee confirmed those instructions in his testimony. The complete absence of interrogation in this case negates the proposition that Wilson's statement was deliberately elicited. According to Brewer, constitutional protection would not attach under these circumstances.

Absence of interrogation was also an issue in United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977) cert. denied 435 U.S. 1000, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978), where the court rejected the argument that interrogation is not required by Massiah. Hearst argued that intentional, secret listening would suffice as the prohibited "deliberate elicitation" of incriminating statements. Hearst's conviction was affirmed despite her contention that the surreptitious tape recording in her cell of her self incriminating conversation with a friend violated her Sixth Amendment right to counsel. Similarly, the court in United States v. Fioravanti, 412 F.2d 407 (3rd Cir.) cert. denied 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969), commented that there was no violation of the Sixth Amendment where the defendant freely volunteered an incriminating statement to an undercover agent who had been deliberately arrested along with the defendant. 412 F.2d 413 at n. 15.

The instant case, therefore, is significantly different from Brewer, where the Court found that the police questioned the defendant with specific intent to elicit incriminating statements. The police in Brewer promised counsel that the defendant would not be interrogated during his transportation to another city. The defendant, accused of murdering a young girl, was known to one officer to be a deeply religious, former mental patient. The officer sought to obtain incriminating remarks from the defendant by stating that he felt they should stop and locate the body so that the little girl might have a Christian burial. The defendant eventually made several incriminating statements and directed the police to the girl's body. The Supreme Court held that the "Christian burial" speech was tantamount to interrogation and that under Massiah the defendant was entitled to the assistance of counsel at the time he made the incriminating statement. The Court stated that there could be no doubt that the officer deliberately and designedly set out to elicit incriminating information.

In contrast, Lee did not make any effort to interrogate Wilson, nor was he placed in the cell for that purpose. Both Lee and Cullen testified that Lee's job was to listen for the identity of Wilson's confederates. In Massiah, the Supreme Court stated:

We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted.

377 U.S. at 207, 84 S. Ct. at 1203.

Thus, the purpose of the investigation, I. e., furtively attempting to uncover the identity of the other two perpetrators, cannot be censured. Further, where Lee did not interrogate Wilson, nor in any way attempt to deliberately elicit incriminating remarks, the rule of Massiah has not been transgressed.

Nor is the fact that the informant was placed in Wilson's cell under surreptitious circumstances a distinguishing point in this case. This court has repeatedly held that a defendant's voluntary, incriminating statements made to a person known by the defendant to be a government officer are properly admissible under Massiah. United States v. Garcia, supra; United States v. Gaynor, 472 F.2d 899 (2nd Cir. 1973); United States v. Barone, 467 F.2d 247 (2nd Cir. 1972); United States v. Maxwell, 383 F.2d 437 (2nd Cir.) cert. denied 389 U.S. 1043, 88 S. Ct. 786, 19 L. Ed. 2d 835 (1968); United States v. Accardi, 342 F.2d 697 (2nd Cir.) cert. denied 382 U.S. 954, 86 S. Ct. 426, 15 L. Ed. 2d 359 (1965). Ostensibly, comparable statements made to undercover agents should receive similar treatment because the fact that an incriminating statement is received surreptitiously or otherwise is constitutionally irrelevant. Brewer v. Williams, 430 U.S. at 400, 97 S. Ct. 1232. Furthermore, the admission of an in-custody statement voluntarily made to an informant seems less egregious than the use of a statement intercepted by an electronic eavesdropping device as was upheld in United States v. Hearst, supra. When a defendant makes a completely unsolicited, incriminating remark in a face-to-face encounter with an informant, he knowingly assumes the risk that his confidant may ultimately prove to be untrustworthy. In an illegal search and seizure case the Supreme Court stated:

(n)either this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.

Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374 (1966)

Nor can such a shield be found in the Sixth Amendment.

An examination of the purposes served by the suppression of evidence further supports the decision reached below on this issue. The exclusion of reliable evidence is a remedy fashioned by the courts in order to deter impermissible police conduct and to preserve judicial integrity.

Cullen's action in this case was not the type of reprehensible police behavior which the courts feel compelled to discourage. The instructions to Lee suggest a conscious effort on Cullen's part to guard Wilson's constitutional rights while pursuing a crucial homicide investigation. His directions, "Don't ask questions; just keep your ears open," suggest familiarity and attempted compliance with, not circumvention of, the principle of Massiah. Under these circumstances, exclusion of Wilson's confession to Lee would serve no useful purpose. Accordingly, we are of the opinion that there was no infringement of Wilson's Sixth Amendment right to the assistance of counsel.

Wilson also claims that he was deprived of a speedy trial and that the trial court's denial of his discovery motion made it impossible for him to prepare his defense adequately. The district court ruled against Wilson on both issues.2

Wilson complains that the twenty month interval between his indictment and his trial violated his Sixth Amendment right to a speedy trial. The delay appears to have been caused largely by adjournments requested by defense counsel. When original counsel was appointed to a judgeship, further postponement was necessary in order to give the new counsel time to familiarize himself with the case. The petitioner did not object to the delay until one month before trial, and there was no indication that he was prejudiced by the delay. Under these circumstances, Wilson has not suffered a violation of his Sixth Amendment right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 530-532, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); United States ex rel. Spina v. McQuillan, 525 F.2d 813, 817-818 (2nd Cir. 1975); United States v. Drummond, 511 F.2d 1049, 1054 (2nd Cir.), cert. denied 423 U.S. 844, 96 S. Ct. 81, 46 L. Ed. 2d 65 (1975); United States v. Infanti, 474 F.2d 522, 527-528 (2nd Cir. 1973).

The petitioner also asserts that he was denied his due process rights because of the state court's denial of his motion to discover police reports, records of police switchboard telephone calls, statements by witnesses and their arrest records, and all statements made by Wilson himself. The motion was initially denied without prejudice to renew because Wilson was not at that time represented by counsel.

Wilson renewed his motion in open court just prior to the commencement of the Huntley hearing. The court advised him that it would probably delay the start of the trial, and that he should discuss the matter with his counsel. No further mention was made of the motion. The district judge concluded that it could not be said that the motion was denied, but rather that it was withdrawn, ostensibly as a matter of trial strategy. The district judge further determined that statements made by the petitioner were introduced at the Huntley hearing and the trial in sufficient time for Wilson to adequately prepare his defense. See Leland v. Oregon, 343 U.S. 790, 801, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952); Cicenia v. La Gay, 357 U.S. 504, 510, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958).

We concur in all respects with the decision below.

AFFIRMED.

I respectfully dissent.

After Wilson declined to "make a statement," Detective Cullen did not cease interrogation. Without the slightest deference to Wilson's expressed wishes, Cullen immediately asked him the question: "Well, would you care to tell me what you did on July 4th?"1 This failure to stop the questioning violated Wilson's Miranda rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 471-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and as subsequently developed in Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).

Whatever else Michigan v. Mosley, supra, did to Miranda, it did Not construe "the interrogation must cease" language of that much maligned case2 "to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite." Id. at 102, 96 S.Ct. at 325. Just as Justice Stewart's opinion in Mosley observed that Miranda did not "create a Per se proscription of indefinite duration" against further interrogation, Id., it similarly abjured the equally doctrinaire reading of Miranda, espoused by the State of New York and adopted by the majority, which would "permit the continuation of custodial interrogation after a momentary cessation," Id.,3 provided only that the suspect's will was not overborne. Rather, the Court reiterated an essential teaching of Miranda that "the admissibility of statements obtained after the person in custody has decided to remain silent depends . . . on whether his 'right to cut off questioning' was 'scrupulously honored.' " Id. at 104, 96 S.Ct. at 326 (footnote omitted).4 Here, when Wilson declined to make a statement, he effectively exercised his right to remain silent. Surely Detective Cullen's immediately subsequent interrogation did not amount to a scrupulous honoring of that decision. See United States v. Crisp, 435 F.2d 354, 356-57 (7th Cir. 1970), Cert. denied, 402 U.S. 947, 91 S. Ct. 1640, 29 L. Ed. 2d 116 (1971). On the contrary, Cullen scrupulously ignored Wilson's request.5

To be sure, Miranda has suffered "piecemeal" erosion;6 and some would weaken it further.7 But Miranda has not been overruled even though more than twenty briefs were filed in Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), urging the Court to do so.8 Unless the Court overrules Miranda, we as lower courts are bound to follow it.

I find the Massiah9 point equally persuasive. In that case, as here, a conceded police agent was used to secure incriminating statements from a represented defendant in the absence of his counsel. There is surely no difference, except one of reliability perhaps, between the radio transmitter used in Massiah and the planted cellmate used here. Thus, the only real distinction advanced is that Benny Lee did not "interrogate" Wilson.10 But the Government did not "interrogate" Massiah.11 Certainly the Court did not rely on the fact that Massiah was interrogated.12 Rather, what is critical is whether police conduct "deliberately elicited" information, not the precise manner in which the statements were obtained:

We hold that the petitioner was denied the basic protections of that guarantee 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. It is true that in the Spano (Spano v. New York, 360 U.S. 215, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959)) case the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, "if such a rule is to have any efficacy it must apply to 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." 307 F.2d at 72-73.

Massiah v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246 (1964). As far as I know, Massiah is still the law. See Brewer v. Williams, supra, 430 U.S. at 400-01, 97 S. Ct. 1232. See note 10 Supra.

I would reverse and grant the writ unless appellant were retried.