KELLER, J., delivered a concurring opinion in which McCORMICK, P.J., joined.


This case poses the following question: When, after indictment, an undercover government agent deliberately elicits a statement about an extraneous crime from the defendant, does the Sixth Amendment bar admission of the statement at the punishment phase of the trial on the charged offense? Unless the government agent's conduct constitutes entrapment, I would answer that question "no."

The Sixth Amendment right to counsel is violated when an undercover government agent deliberately elicits from a defendant incriminating evidence of an offense for which the defendant has already been charged. (1) "The Sixth Amendment right, however, is offense specific" and does not apply to crimes for which adversary criminal proceedings have not been initiated. (2) The Supreme Court's decision in Maine v. Moulton addressed the application of the Sixth Amendment to undercover investigations relating to multiple crimes, some that had been charged and some that had not. In Moulton, defendants Moulton and Colson were charged with four counts of theft. (3) Moulton and Colson had several meetings to discuss their upcoming trial. (4) At one of these meetings, Moulton suggested the possibility of killing one of the State's witnesses. (5) Later, Colson secretly agreed to cooperate with the police in exchange for the government's promise to refrain from bringing any additional charges against him. (6) Colson agreed to the secret recording of subsequent conversations between him and Moulton. (7) At a strategy meeting between the two, Moulton and Colson discussed fabricating an alibi for the charged offenses. (8) The two discussed the details of the thefts in order to develop an alibi that was believable. (9) Claiming memory lapses about the incident, Colson prompted Moulton for additional details of the thefts. (10)

The government argued that the recorded statements were admissible because the government was investigating an uncharged crime -- Moulton's threat to kill one of the government's witnesses. (11) In rejecting the government's contention, the Court distinguished between evidence pertaining to the charged offense and evidence pertaining to other charges:

To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah. On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, not withstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused's right to the assistance of counsel. (12)

* * *

Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses. (13)

The above passage articulates two propositions of law concerning the gathering of information by an undercover informant after the defendant has been indicted for an offense: First, the government may not use evidence pertaining to the charged offense at the trial of the charged offense even though the evidence may have been obtained incidentally during the government's investigation of an extraneous offense. (14) Second, the government may use evidence pertaining to an extraneous (uncharged) offense at the trial of that offense. (15) What Moulton did not decide is whether (or to what extent) the government may use evidence pertaining to an extraneous offense at the trial of the charged offense. That is the issue in this case.

Three factors distinguish this case from Moulton. The first factor is the most significant: the evidence presented in this case pertains to an extraneous offense. This factor renders the holding in Moulton inapplicable to the present case and eliminates the Supreme Court's concern about fabricated investigations. Moulton addressed a situation in which evidence of the charged offense was elicited during an investigation that supposedly centered on an extraneous offense. The Supreme Court was apparently concerned that law enforcement officials might fabricate the existence of an extraneous offense as an excuse to elicit evidence of the charged offense. However, where the evidence elicited pertains to an extraneous offense, a fabricated investigation seems unlikely, if it is even possible. Because the Sixth Amendment had not attached to the extraneous offense in the present case, the State was entitled to investigate and obtain this evidence from the defendant in the absence of counsel. (16)

The second factor distinguishing this case from Moulton is this: The statements made by Moulton related the details of a past crime. (17) The statements made by appellant, however, constituted a present crime (solicitation of murder) or a proposed future crime (murder, to be carried out in the future). This works strongly against finding a Sixth Amendment violation. Federal cases in the Seventh and Eleventh Circuits have held that the Sixth Amendment does not bar admission, at the trial for the charged offense, of statements that constitute a present crime or address a crime to be committed in the future. (18) Statements that constitute a present crime or propose a future crime are uniquely outside the attorney-client relationship because there is no right to the assistance of counsel in committing a new crime. (19) These types of statements are not covered by the attorney-client privilege, and the ethical rules do not require attorneys to keep such information confidential. (20) If a defendant made such statements in counsel's presence, counsel might be obligated to reveal those statements. (21) If counsel had been present during the exchange between appellant and the undercover informant, any advice to the defendant to refrain from making the statements would be "not because the statements would have shown a consciousness of guilt of complicity in...murder, but because his statements, themselves, were the operative acts of a separate criminal offense." (22) As the Eleventh Circuit has noted, "Massiah is not a magic cloak with respect to future conduct." (23)

In addition, some of the people appellant wanted to kill were anticipated witnesses at the trial on the original charge. When the new criminal activity involves an attempt to subvert a defendant's upcoming trial, a form of estoppel arises with regard to any Sixth Amendment claim the defendant might otherwise have: the defendant cannot claim to be wronged by the admission of such evidence at the very proceeding the defendant has tried to improperly influence. (24)

Though these federal cases were decided before Moulton, their reasoning is still persuasive. The Seventh Circuit has distinguished a prior United States Supreme Court case on the ground that the prior case did not address the distinction between past wrongdoing and new criminal activity. (25) The Eleventh Circuit, in Darwin, did not make such a careful distinction between past and new crimes. In Darwin, most of the evidence obtained by the confidential informant related to a threat to kill a government witness, but there was some evidence relating to the original offense that was elicited and admitted at trial. (26) The Eleventh Circuit held that all of the evidence was admissible, so long as the government's investigation was not conducted in bad faith. (27) A later Eleventh Circuit opinion observed that this holding was superceded by Moulton. (28) But, as noted above, Darwin also stood for the proposition that a defendant has no right to counsel for statements relating to new criminal activity, (29) and to that extent, Darwin remains persuasive.

The third difference between this case and Moulton is that the disputed evidence in Moulton was presented during the guilt phase of trial, while the evidence here was presented during the punishment phase. Recently the First Circuit, while holding such evidence to be inadmissible at the guilt stage of trial, indicated that it would be admissible at sentencing. (30) And in United States v. Kidd, the Fourth Circuit held that the Sixth Amendment was not violated by the introduction of an extraneous offense (elicited by an undercover agent after indictment in the primary case) at the sentencing phase of trial for the charged offense. (31) In Kidd, the defendant was charged with several offenses regarding the possession and distribution of cocaine. (32) Later, an undercover informant made a tape-recorded purchase of cocaine from the defendant. (33) The defendant pled guilty to one of the earlier distribution offenses, and at sentencing, the post-indictment sale was introduced as relevant conduct to enhance the defendant's punishment under the Federal Sentencing Guidelines. (34) Although the court expressed doubt about the propriety of introducing this evidence at the guilt stage of trial, (35) it held that the Sixth Amendment did not prohibit the introduction of the evidence at sentencing. (36) In arriving at this holding, the Fourth Circuit remarked, "The Sixth Amendment does not create a sanctuary for the commission of additional crimes during the pendency of an indictment." (37)

For these reasons, I would hold that the trial court did not err in admitting appellant's statements.


DATE DELIVERED: September 20, 2000


1. Maine v. Moulton, 474 U.S. 159, 171-174 (1985); see also Massiah v. United States, 377 U.S. 201 (1964).

2. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).

3. Moulton, 474 U.S. at 162.

4. Id.

5. Id.

6. Id. at 162-163.

7. Id. at 163-164.

8. Id. at 165-166.

9. Id.

10. Id.

11. Id. at 178

12. Id. at 180.

13. Id. at 180 n. 16.

14. See also United States v. Terzado-Madruga, 897 F.2d 1099, 1110 (11th Cir. 1990).

15. See also McNeil, 501 U.S. at 176.

16. If a Sixth Amendment violation can occur only at the time the evidence is obtained, that would seem to end the matter in this case. The State was entitled to elicit the extraneous offense evidence through the undercover informant, so there was no Sixth Amendment violation at inception, and no Sixth Amendment basis for excluding the evidence at any trial -- even for the charged offense. However, there is at least some support for the idea that the Sixth Amendment can be violated by the admission at trial of uncounseled pretrial statements. See Michigan v. Harvey, 494 U.S. 344, 362 n. 7 (1990)(Stevens, J. dissenting); United States v. Bender, 2000 U.S. App. LEXIS 18722, *12-13, *13 n. 5 (1st Cir., August 4, 2000) .

17. When Moulton raised the possibility of killing a government witness, he may well have been proposing a future crime, but that evidence was obtained before Colson became a government agent and was not the focus of the opinion in Moulton.

18. United States v. Moschiano, 695 F.2d 236, 240-243 (7th Cir. 1982), cert. denied, 464 U.S. 831 (1983); United States v. Darwin, 757 F.2d 1193 (11th Cir. 1985), cert. denied, 474 U.S. 1110 (1986). A similar holding occurred in Grieco v. Meachum, 533 F.2d 713, 717-718 (1st Cir.), cert. denied, 429 U.S. 858 (1976), but the First Circuit subsequently held that Grieco had been overruled by Moulton. Bender, 2000 U.S. App. LEXIS 18722, *9, n. 4.

19. Moschiano, 695 F.2d at 241; Darwin, 757 F.2d at 1200..

20. Grieco, 533 F.2d at 718 n. 4 ("The privilege generally does not extend to confidences concerning present and future criminal activity"); see also Tex. R. Evid. 503(d)(1); Tex. Disc. R. Prof. Conduct 1.05(c)(7) & (8).

21. Darwin, 757 F.2d at 1200; see also Tex. Disc. R. Prof. Conduct 1.05(e); Henderson v. State, 962 S.W.2d 544, 554-556 (Tex. Crim. App. 1997).

22. Grieco, 533 F.2d at 718 (ellipsis inserted).

23. Darwin, 757 F.2d at 1199 (quoting United States v. DeWolf, 696 F.2d 1, 3 (1st Cir. 1982)).

24. Id. (noting the irony that attempts by a defendant to improperly influence a proceeding may then become admissible in that proceeding; if so, "that is the defendant's lookout").

25. Moschiano, 695 F.2d at 242 n. 8 & 243 (distinguishing United States v. Henry, 447 U.S. 264 (1980) on the ground that the case "did not address the issue whether post-indictment statements relating to new criminal activity could be used to prove the charges in the pending indictment").

26. 757 F.2d at 1196-1197.

27. Id. at 1199-1200.

28. See Terzado-Madruga, 897 F.2d at 1110.

29. 757 F.2d at 1200 ("the right to the presence of counsel simply does not extend to a situation in which the defendant is engaged in the commission of a separate offense").

30. Bender, 2000 U.S. App. LEXIS 18722, * 14.

31. United States v. Kidd, 12 F.3d 30, 32-34 (4th Cir. 1993), cert. denied, 511 U.S. 1059 (1994).

32. Id. at 31.

33. Id. at 32.

34. Id.

35. Id. at 33 n. 2.

36. Id. at 33. But see Jackson v. State, 643 A.2d 1360, 1374 (Del. 1994), cert. denied, 513 U.S. 1136 (1995)(disagreeing with Kidd's holding that extraneous offenses, so obtained, are admissible at sentencing).

37. Id.