447 U.S. 264 (1980)
In August 1972, the Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Virginia, was robbed.1 Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one "Allen R. Norris" and a lease, also signed by Norris, for a house in Norfolk.2 Two men subsequently convicted of participating in the robbery were arrested at the rented house with the proceeds of the robbery and the guns and masks used by the gunmen.3
Government agents traced the rent receipt to respondent Billy Gale Henry. On the basis of this information, Henry was arrested in Atlanta, Georgia, in November 1972.4 Two weeks later he was indicted for armed robbery under 18 U.S.C. §§ 2113(a) and (d). He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27, 1972.5
On November 21, 1972, shortly after Henry was incarcerated, government agents contacted Nichols, an inmate at the Norfolk city jail who had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant.6 Nichols informed the agent that he was housed in the same cellblock with Henry. The agent told Nichols 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.7 In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank. Nichols was paid for furnishing the information.8
When Henry was tried in March 1973, Nichols testified that he had an opportunity to have some conversations with Mr. Henry while he was in the jail. Henry told him about going to the Janaf Branch to see which employees opened the vault and described the details of the robbery.9 The jury was not informed that Nichols was a paid Government informant. On the basis of this testimony, Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years.10 His conviction was affirmed on appeal, and his petition to this Court for a writ of certiorari was denied.11
On August 28, 1975, Henry moved to vacate his sentence pursuant to 28 U.S.C. § 2255. He alleged that he had just learned that Nichols was a paid Government informant and that the introduction of Nichols' testimony violated his Sixth Amendment right to the assistance of counsel.12 The District Court denied the motion without a hearing. The Court of Appeals reversed and remanded for an evidentiary inquiry.13 On remand, the District Court again denied the motion after reviewing affidavits from the government agents. The Court of Appeals reversed, holding that the actions of the Government impaired Henry's Sixth Amendment rights.14
The Supreme Court granted certiorari to consider whether respondent's Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody.15
Whether the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed government informant, after indictment and while in custody violated respondent's Sixth Amendment right to the assistance of counsel?16
The Sixth Amendment right to counsel is violated when the government deliberately elicits incriminating statements from an indicted defendant in the absence of counsel, as held in Massiah v. United States, 377 U.S. 201 (1964).17
Yes. Nichols was acting under instructions as a paid informant for the Government. Nichols was ostensibly no more than a fellow inmate of Henry. Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.18 The arrangement between Nichols and the agent was on a contingent-fee basis. Nichols was to be paid only if he produced useful information.19 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.20
According to his own testimony, 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.21 The fact of custody imposes pressures on the accused. Confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents.22 The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols' conduct and apparent status as a person sharing a common plight.23
The admission at trial of the incriminating statements violated respondent's Sixth Amendment right to the assistance of counsel.24
Related opinions on this issue
Justice Powell concurred in the judgment but wrote separately to emphasize that the holding rests on a conclusion that the informant deliberately elicited incriminating information by conduct that was the functional equivalent of interrogation.25 He viewed the case as close and difficult on its facts because no evidentiary hearing had been held, yet accepted the Court of Appeals' determination that a Massiah violation occurred.26 Powell stressed that mere presence or incidental conversation of an informant in a jail cell would not violate Massiah and that a defendant must show the government engaged in conduct that, considering all circumstances, is the functional equivalent of interrogation.27
Joined by Justice White
Justice Blackmun dissented, joined by Justice White, arguing that the majority extended Massiah beyond its original boundaries by forging a new objective "likely to induce" test that saps the word "deliberately" of all significance.28 He maintained that Massiah requires specific intent to elicit statements and that the agent's unequivocal instructions not to question Henry or initiate conversations about the robbery showed no such intent.29 Blackmun concluded that the record failed to show Nichols prompted Henry's remarks and that the statements were voluntary, rendering exclusion unwarranted under the Sixth Amendment.30
Justice Rehnquist dissented, contending that Massiah constitutes a substantial departure from the traditional concerns underlying the Sixth Amendment right to counsel and should be re-examined.31 He argued that the right to counsel is designed to provide aid in coping with legal procedure and advocacy at critical stages, not to prevent voluntary statements to informants, and that the government's use of an informant here did not interfere with the attorney-client relationship or constitute a critical stage requiring counsel's presence.32 Rehnquist would have held that the government's activity was a permissible continuation of lawful undercover investigation after formal proceedings had begun.33