concurring in part and dissenting in part:
I concur in all of the opinion for the court except Part H.B., with regard to the jailhouse informant, Chavers. With respect to that issue, I respectfully dissent. In my judgment, the line of cases beginning with Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and, in particular, United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), require reversal in this case.
In Massiah, the Supreme Court held that the Sixth Amendment prohibits law enforcement officers from deliberately eliciting incriminating information from a defendant in the absence of counsel after formal charges have been lodged against him. In Henry, the Supreme Court applied the Massiah principle to a situation very similar to that in the instant case. While Henry was in jail, a fellow inmate engaged him in more than incidental conversation about Henry’s crime and as a result Henry made incriminating statements. The in*1028mate-informant had for at least a year been paid when he produced information. After learning of the informant’s access to Henry in the jail, the Federal Bureau of Investigation agent told him not to question Henry or initiate any conversations with Henry, but to be alert to any statements made by Henry. The Court implicitly held that the inmate-informant’s activities — i.e., deliberately eliciting statements from Henry— were attributable to the government. The inmate-informant was more than a mere passive listener, and the Court concluded that he had “deliberately elicited” the incriminating statements in violation of Massiah. Although the FBI agent did not intend for the informant to take affirmative steps to secure incriminating information, the Court expressly held that the FBI agent must have known the likelihood thereof, and that this violated the “deliberately elicit” test.
When the affirmative actions designed to elicit incriminating statements were performed by another inmate, as in this case and in Henry, the agency status of that inmate-informant is a necessary prerequisite for a Henry claim. Unless the informant’s actions are attributable to the state, then there has been no deliberate elicitation by the state. There are two prongs of a Henry claim, and each must be satisfied for a defendant to prevail: (1) the informant’s actions must be attributable to the state; and (2) the informant must be more than just a passive listener — he must “deliberately elicit” the incriminating information from the defendant. Henry, 447 U.S. at 269-72, 100 S.Ct. at 2186-88; United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986); United States v. Geittmann, 733 F.2d 1419,1427 (10th Cir.1984). I refer to the former as the “agency” prong and the latter as the “deliberately elicit” prong. The ultimate issue is whether what has happened is the functional equivalent of interrogation by the government. Unless the agency prong is met, the informant’s activities are not attributable to the government. On the other hand, if the acts of the informant are attributable to the government, then the question becomes whether the informant has “deliberately elicited” the incriminating statements.
Addressing first the agency prong, the relevant facts disclosed in the record are as follows: (1) Theodore Chavers, the fellow inmate, made the initial contact with Investigator LaTorre by telephone and let LaTorre know that he was in a position to get information from Lightbourne; (2) LaTorre testified that he understood that Chavers’ telephone call to him meant that Chavers was trying to give him some information and that Chavers would later come back to him and seek his help talking to the judge or getting out of jail; (3) LaTorre told Chavers to “keep his ears open” to anything that Lightbourne might say; (4) Chavers met with LaTorre on two occasions after the initial telephone call, and at the first of these meetings asked LaTorre about assistance in getting bail, and LaTorre told Chavers that he would talk to the judge about getting him bail; (5) Chavers subsequently had a third meeting with LaTorre and gave him more information; (6) as a result of the information he provided, Chavers ultimately received a $200 reward and an early release from jail; and (7) LaTorre had previously received information from Chavers in connection with another case.
Because the facts with respect to agency as disclosed in the record are at variance with some facts apparently found by the state courts, it is necessary to consider the presumption of correctness to which state fact findings are entitled. 28 U.S.C. § 2254(d). The Florida Supreme Court1 addressed only the agency prong and made the following findings:
In the instant case there is nothing in the record establishing that the informant Chavers had any prearranged guarantee of money in return for information, and it appears that the two hundred dollars that he did receive from the Marion County Sheriff’s Department was drawn *1029from a general reward fund and not given as an inducement to elicit information,
Without some promise or guarantee of compensation, some overt scheme in which the state took part, or some other evidence of prearrangement aimed at discovering incriminating information we are unwilling to elevate the state’s actions in this case to an agency relationship with the informant Chavers.
Lightbourne v. State, 438 So.2d 380, 386. Summarizing, the Florida Supreme Court made three findings. First, that there was no prearranged promise of the $200 reward or other compensation; second, that there was no overt scheme in which the state took part; and third, that there was no other evidence of prearrangement. All three are findings of subsidiary facts to which the presumption applies, unless one of the exceptions operates. The first finding — that there was no prearranged promise of the $200 reward or other compensation — is fully supported in the record. There is ample testimony that the $200 reward was not mentioned until after Chavers had elicited and provided all of the information. Similarly, the second finding is supported in the record. However, I am persuaded that the third finding is not fairly supported in the record as a whole.
Investigator LaTorre testified that he understood that Chavers was calling him with a view to getting out of jail, and that LaTorre figured that Chavers was trying to provide information and would be coming back to seek LaTorre’s assistance in talking to the judge to get him out of jail.2
Also, LaTorre testified that he had three contacts with Chavers. The first was on Sunday night, February 1, 1981, when Chavers initiated a telephone conversation in which he told LaTorre that he was in a cell with Lightbourne and gave LaTorre some preliminary information that Lightbourne had revealed.3 The second contact was the next day, February 2, 1981.4 LaTorre went to the jail, talked with Chavers, and took a taped statement from Chavers as to what Lightbourne had said. After taking the statement at this second contact, Chavers asked LaTorre to help get him out of jail, and LaTorre said he would talk to the judge to see if he could help get bail for Chavers.5 The third contact occurred several days later, and Chavers provided addi*1030tional information. They may or may not have discussed the bail matter again. A taped statement was also taken at this third meeting which appears in the record as having been taken on February 12, 1981.6
Thus, LaTorre’s testimony establishes that there was a “prearrangement” with Chavers, and the state court’s finding to the contrary is not fairly supported by the record as a whole.7
Putting aside the foregoing state finding which has no support in the record, the subsidiary facts relevant to the agency prong are clear. LaTorre understood that Chavers was providing information with the hope or expectation of some consideration with respect to his own charges. Midway through his dealings with Chavers, this implicit arrangement became explicit; LaTorre represented that he would help him get bail.8 In addition, LaTorre told Chavers to “keep his ears open” to anything Lightbourne might say. LaTorre had previously received similar information from Chavers. And finally, LaTorre did intercede on behalf of Chavers and Chavers was in fact released as a result of the information he provided.
I conclude that these facts satisfy the agency prong of the Henry claim, such that the actions of Chavers are attributable to the state.9 Chavers was operating pursuant to instructions from the state to listen to Lightbourne. LaTorre understood Chavers’ expectation of benefit, and that understanding later became explicit when LaTorre said he would talk to the judge in an effort to get Chavers released on bail.10
*1031Having, concluded that Chavers’ actions are attributable to the state, I must next address whether his actions satisfy the “deliberately elicit” prong of the Henry claim. The district court purported to defer to a presumption in favor of “the Florida Supreme Court’s factual finding that the state and Chavers did not stimulate conversation with Petitioner or otherwise attempt to deliberately elicit incriminating statements from him____” Lightbourne v. Wainwright, No. 85-136-Civ-OC-16, slip op. at 9 (M.D.Fla. Aug. 20, 1986). This was accepted by the majority. I respectfully disagree on three grounds.
First, my reading of the Florida Supreme Court opinion persuades me that that court made no such finding. The language which the district court considered to be a fact finding was actually merely language describing the Supreme Court decision in United States v. Henry.11 Also, the focus of the opinion of the Supreme Court of Florida was on the agency prong, and not on the “deliberately elicit” prong. The issue was stated: “The threshold inquiry here is whether or not Theodore Chavers was acting as an agent of the state.” Lightbowme v. State, 438 So.2d at 386. After describing the Massiah case and the Henry case, the Florida Supreme Court turned its analysis to the instant case with the language which I have quoted above at 1028. That language focuses on the absence of a prearranged guarantee of the $200 reward or other compensation, the absence of an overt scheme, and the absence of other evidence of prearrangement. *1032All of those findings related to the agency prong, and are discussed above. The only reference to the facts of this case in the context of the “deliberately elicit” prong was: “Similarly, Investigator LaTorre’s advice to the informant Chavers to keep his ears open does not constitute an attempt by the state to deliberately elicit incriminating statements.” Id. at 386. That sentence focuses on what LaTorre was attempting to do. Contrary to the district court’s suggestion, the Florida Supreme Court made no reference to whether Chavers himself stimulated conversation, and certainly made no fact finding in that regard.12
Second, even if the state court had made such a fact finding, such a finding would not have been fairly supported in the record as a whole. The record reveals overwhelming evidence that Chavers did “take affirmative steps to secure incriminating information____” Henry, 447 U.S. at 271, 100 S.Ct. at 2187. Chavers questioned Lightbourne repeatedly with the express purpose of eliciting information about the crime and his participation in it. On one occasion, Chavers described his activities as similar to a lawyer cross-examining Lightbourne.13 On another occasion, Chavers described himself and another inmate as acting like a detective, coming up with clues.14 The following examples should suffice to demonstrate the strength of the evidence that Chavers did deliberately elicit incriminating information from Lightbourne.
—During Chavers’ descriptions of the conversations at trial, Chavers stated that Lightbourne was acting like he was worried about something and Chavers said: “[S]o I said well, man, something wrong, man. You know, you can talk to me about it. I said, you must — you must be did do what they say you done, I say, because you seem like you worried about it.” Appendix — Volume III at 1110.
—Describing the same encounter in his second taped statement to LaTorre, dated Feb. 12, 1981, Chavers said: “I said, ‘Man, you got somethin on your conscience, something botherin you, man’, I said, ‘You done something wrong, man that is botherin you now?’ He say, ‘No, I’m scared to talk’. I say, ‘Whatcha mean ..” Supplement to Appendix— Volume II at 348.
—During his first statement to Investigator LaTorre, dated Feb. 2, 1981, Chavers described his conversations with Lightbourne: “[H]e went to tell me about the security guard be there. So, I said, ‘Well, there’s a security guard,’ and he said, ‘Yeh.’ And I say, ‘Man, you mean to tell me the security guard ain’t; if this lady was to the house, he didn’t miss her, man, from not seeing her, knowing that she wasn’t in Miami or nothin like that’. He say, T don’t know, *1033man’. I say, ‘This sure funny, man, look like he would heard or somethin’.” Supplement to Appendix — Volume II at 344. —During his second statement to Investigator LaTorre dated February 12, 1981, Chavers further described his conversations with Lightbourne: “I asked him, I say, ‘Man, what you think, them people gonna run an autopsy and find out everything that happened?’ I say, ‘You think they gonna have a bullet test on that gun and find out that’s the gun that shot the lady?’ I say, ‘If so, man, you should try to say something?’ ‘If that’s not the gun that killed the lady, you should tell em who you got it from. I said, ‘Or you’ll be in a world of trouble, man, ‘I’m serious, man.’ And, I tried to really reason. I tried to have him state it for when you came down here that he would be willing to talk to you about it, but you know just not every day somebody would step up and say that they murdered somebody.” Supplement to Appendix — Volume II at 349.
—After Chavers had reported to LaTorre, and LaTorre had interviewed Lightbourne, Chavers described Lightbourne coming back to the cell after his interview with LaTorre: “And so when he came back in the cell, he told me, say that they think he the one killed the lady and they was going to charge him with the charge because they said the bullet came out of the same gun that he had, and I said, well, if the bullet didn’t come out there, you don’t have nothing to worry about. I say, if that ain’t the gun that killed her, you don’t have nothing to worry about, and he started acting real nervous and everything. He said, well, I don’t know, man, you know. He said, it might be the gun. I said, well, if it’s the gun, Lightbourne, you should tell the people what you know about it to clear yourself out of it. I say, as far as it stand right now, you killed her, man.” Appendix — Volume III at 1110.
—Recalling at trial what Lightbourne told him about the crime itself, Chavers said: “He told me about — he told her that he wasn’t going to hurt her, and he performed sex acts with her, and he also told me about — you know, well, after Mr. LaTorre done formally charged him that afternoon and took his picture and fingerprinted him, he came back in the cell and made a statement as Ms. O’Farrell having big vagina. So I asked him how would you know that Ms. O’Farrell had a big vagina, not unlessen you had intercourse with her.” Id. at 1115.
After a careful review of the record, it is abundantly clear that Chavers repeatedly questioned Lightbourne for the express purpose of eliciting from him the details of the crime and his participation in it.15 Any finding to the contrary would not be fairly supported in the record as a whole.
Finally, I disagree with the district court’s holding that the ultimate determination of “deliberate elicitation” is a pure question of fact entitled to the § 2254(d) presumption.16 Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), makes it clear that the issue of whether the informant asked any questions is a subsidiary issue of fact to which federal courts owe deference. The Supreme Court held that the court of appeals erred in giving a “description of Lee’s [the informant’s] interaction with respondent that is completely at odds with the facts found by the trial court. In the Court of Appeals’
*1034view, ‘Subtly and slowly, but surely, Lee’s ongoing verbal intercourse with [respondent] served to exacerbate [respondent’s] already troubled state of mind.’ ” 106 S.Ct. at 2630-81 (citation omitted). However, after faulting the court of appeals for revising some of the state court’s findings and ignoring others, the Supreme Court rejected the court of appeals’ conclusion that the police deliberately elicited the incriminating evidence. It is not absolutely clear from the language of Kuhlmann itself whether the Supreme Court meant that the ultimate conclusion — i.e., deliberate elicitation — was also a pure fact, or whether the ultimate conclusion, though a mixed question of fact and law, was rejected because of the court of appeals’ disregard of the underlying subsidiary facts. I conclude that the Supreme Court must have meant the latter, because only the latter is consistent with the Supreme Court’s treatment of the issue in Henry. In Henry, the district court addressed the issue as the initial fact finder and concluded that there had been no violation of Henry’s Sixth Amendment right to counsel. The court of appeals for the Fourth Circuit reversed, concluding that there was sufficient “interrogation” by the informant. Henry v. United States, 590 F.2d 544, 547 (4th Cir.1978). The Supreme Court affirmed, holding that the informant “deliberately elicited” the incriminating evidence. Had the conclusion been a question of pure fact, the court of appeals and the Supreme Court would have remanded the case to the district court as fact finder.17
My conclusion that the ultimate determination of “deliberate elicitation” is a mixed question of fact and law also finds support in Miller v. Fenton, 474 U.S. 104, 115 — 17, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985). There the Supreme Court held that the “voluntariness” of a confession is a question of law subject to plenary review in federal habeas corpus proceedings. The ultimate issue of whether the circumstances of a Henry claim rise to the level of the functional equivalent of interrogation by the government, like the issue in Miller v. Fenton, turns on “whether the techniques for extracting the statements” are compatible with the Constitution. 474 U.S. at 116, 106 S.Ct. at 453. Also as in Miller v. Fenton, the ultimate issue here does not turn on assessments of credibility and demeanor; the critical events occur in secret; and there is the same understandable reluctance to exclude otherwise reliable evidence. 474 U.S. at 117-18, 106 S.Ct. at 453-54. See also DeAngelo v. Wainwright, 781 F.2d 1516 (11th Cir.), cert, denied, — U.S. -, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986).
The conclusion that Chavers “deliberately elicited” the incriminatory statements from Lightbourne is, in my judgment, mandated by United States v. Henry. The evidence in this case is far stronger than that which formed the basis of the Supreme Court’s decision in Henry. There, the Supreme Court concluded on far weaker evidence that the informant, Nichols, engaged in affirmative conversation which resulted in Henry’s incriminating statements. Moreover, in Henry, the Federal Bureau of Investigation official had expressly instructed the informant, Nichols, not to question Henry or initiate conversations with him. The Supreme Court nevertheless held that “[e]ven 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.” Henry, 447 U.S. at 271, 100 S.Ct. at 2187. In the instant case, LaTorre did not caution Chavers against questioning Lightbourne or initiating conversations with him. Furthermore, it is obvious from the first taped statement which LaTorre took from Chavers that LaTorre was aware early on that Chavers was actively eliciting information from Lightbourne.
For the foregoing reasons, I conclude that Lightbourne has satisfied both the agency prong and the “deliberately elicit” prong of the Henry claim. In my judg*1035ment, Lightbourne has established that his Sixth Amendment right to counsel was violated under Henry.
However, Lightboume’s claim that the court erred in not suppressing his incriminating statements must be subjected to harmless error analysis. With respect to the guilt issue, I would find that the error is harmless beyond a reasonable doubt. Evidence of Lightbourne’s guilt was overwhelming, though mostly circumstantial, even without his confession to Chavers. Indeed, Lightbourne had confessed to another jailhouse informant who later testified against him. However, the error is not harmless with regard to sentencing. Chavers’ testimony contained the only direct evidence of oral sexual assault on the victim as well as the only graphic descriptions of the sexual attack and comments by the defendant about the victim’s anatomy. Since this evidence would support the existence of an aggravating circumstance, and since it was likely to have been influential with the jury on the sentencing issue, I cannot conclude that the testimony was harmless with regard to sentencing. Thus I would reverse the judgment of the district court and remand with instructions that the writ of habeas corpus be issued unless the state affords Lightbourne a new sentencing hearing.
I respectfully dissent.
. The state trial court denied the relevant motion to suppress without opinion. However, because the prosecutor’s argument to the court focused on the agency issue, I would assume that the state trial court made an implicit finding that Chavers was not an agent.
. The relevant portions of the question and LaTorre’s answer are as follows:
Question: Did Theodore Chavers indicate to you why he was calling you, what motivated him to call you and supply you with this information?
Answer: Well, Theodore Chavers, from what I understand or understood at that time, would call anybody to get out of jail, and I figured that he was trying to give me some information; if it meant anything, that he was later going to come back and say that I should talk to the judge or something to get him out of jail.
Deposition of LaTorre, March 25, 1981, Supplement to Appendix — -Vol. II at 393-94.
. Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 486-87, 88 L.Ed.2d 481 (1985), indicates that it is not significant that Chavers initially approached LaTorre rather than vice versa.
. According to undisputed facts in the record, this statement was given on Feb. 2, 1981. However, the transcript of the statement in the record is dated Feb. 3, 1981. For purposes of consistency, I will henceforth refer to this statement as the Feb. 2, 1981 statement.
. The relevant questions and LaTorre’s answers are as follows:
Question: At the statement where bail was discussed, was the matter of bail discussed before or after Theodore Chavers had given you a statement about the defendant?
Answer: OK, I’m trying to say that when I obtained the first taped statement—
Question: Which would have been—
Answer: On February 2.
Question: When you came back on February 2?
Answer: Right.
Question: All right.
Answer: Then I would anticipate or believe that the discussion was — after the statement was taken, he goes into an act, which he uses, you know, "you have got to help me out. I have got to get out of here”; and I said, “Well, I will talk to the judge. I will see what your charges are, see if we can get bail"; and then that may have been discussed when he came in the third time I had contact with him and took the second statement; we may have talked about it prior to him giving the statement or afterwards, but I don’t really remember. It wasn’t discussed within the statement.
LaTorre’s testimony at Suppression Hearing, April 9, 1981, Appendix — Vol. I, Tab F at 23-24.
. It is not clear exactly when this second statement was made. The transcript of the interview states that the interview was conducted on February 12, 1981. However, testimony at pre-trial hearings and at trial established that Chavers was released from jail on February 10,1981 and that he gave the second statement while he was still in custody. Though the actual date of the second statement is therefore unclear, it is clear that it occurred at least several days after the first taped statement. Further precision is not relevant in this case. For purposes of ease of reference, I will henceforth call this second interview the Feb. 12, 1981 statement.
. There is no suggestion that LaTorre’s testimony was discredited. In fact, LaTorre’s testimony was the only possible basis for any finding.
. The majority notes that LaTorre’s statement to Chavers that he would assist him in getting bail did not come until after Lightbourne had already admitted his involvement to Chavers. Reliance upon this fact overlooks two important points. First, LaTorre testified that he understood from the beginning that Chavers was trying to provide information in hopes of some such assistance. The bail talk at the February 2 meeting merely made that implicit arrangement explicit. Second, very significant information was elicited from Lightbourne after the explicit arrangement, including all of the details of the crime and all of the details of the sexual assault.
. This conclusion is also supported by an examination of the facts in cases where an agency relationship was not found. The facts in Lightbourne’s case are more favorable to the petitioner than those in Thomas v. Cox, 708 F.2d 132, 135 (4th Cir.), cert, denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). In Thomas, no agency relationship was found where: (1) the informant was "motivated by conscience” in initiating contact with the defendant and in offering assistance to the government; (2) the informant had made no prior arrangement with the government to procure information; and (3) the informant had "nothing to gain” from his actions since he had been promised no reward, had no reason to expect any, and had already been released from prison. Obviously, Chavers’ relationship with the government differed significantly in each of these respects. See also United States v. Hicks, 798 F.2d 446, 448-49 (11th Cir.1986) (finding no agency where cellmate fortuitously reported defendant’s incriminating statement to the government, and where there had been no government creation or exploitation of an opportunity to get information from the defendant), cert, denied, — U.S.-, 107 S.Ct. 886, 93 L.Ed.2d 839 (1987); United States v. Metcalfe, 698 F.2d 877, 882-83 (7th Cir.) (finding no agency where no contact between FBI and informant existed prior to informant’s relating of incriminating statements and where there was no reward or expectation of a reward), cert, denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983); United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986) (finding no agency where informant had only expectations of a reward and received none, and where informant received no instructions or directions by the government, despite fact that FBI placed informant in defendant’s cell). See also United States v. Surridge, 687 F.2d 250 (8th Cir.), cert, denied, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 614 (1982); United States v. Malik, 680 F.2d 1162 (7th Cir.1982).
. Because the contrary finding would not have fair support in the record as a whole, I need not decide whether the ultimate agency issue, i.e., whether Chavers’ actions are attributable to the *1031state, is a question of pure fact or a mixed question of fact and law to which the § 2254(d) presumption does not apply. The Eighth Circuit has held that this ultimate issue is a legal question. United States v. Surridge, 687 F.2d 250, 252 (8th Cir.), cert, denied, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 614 (1982). (“We agree that the determination as to the relationship or understanding between the police and the informant is a factual determination. However, beyond this factual determination there is a legal question: whether the relationship or understanding as found by the district court is such that the informant’s questioning has to be considered government interrogation for constitutional examination.”) The Eighth Circuit’s conclusion finds some support in DeAngelo v. Wainwright, 781 F.2d 1516 (11th Cir.), cert, denied, — U.S.-, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Similarly, in Thomas v. Cox, 708 F.2d 132 (4th Cir.1983), the Fourth Circuit applied the presumption of correctness to subsidiary facts, id. at 135, but seemed to make an independent determination on the ultimate agency issue, recognizing that it was not subject to any bright line test, and that the degree of prearrangement would determine the issue, id. at 136-37. The Eighth Circuit's conclusion is also supported by analogy from Supreme Court precedent, discussed in text below, which suggests that the ultimate determination on the “deliberately elicit" prong is a mixed question of fact and law.
Although the Third Circuit in United States v. Van Scoy, 654 F.2d 257, 260-61 (3d Cir.), cert, denied, 454 U.S. 1126, 102 S.Ct. 977, 71 L.Ed.2d 114 (1981), labeled the agency issue a question of fact and applied the clearly erroneous standard, the subsidiary facts there mandated that conclusion. To the same effect, see United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982).
. In context, the language which was taken to be a finding reads as follows:
In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Supreme Court applied Massiah in the context of using informant information and apparently recognized an active/passive dichotomy in determining whether or not an informant is to be deemed acting as an agent of the state in any particular case. The key to the Henry decision lies in the requirement that in order for an informant to be acting as a state agent he must, acting in concert with the state, actively stimulate or instigate conversation specifically designed to elicit incriminating information. If no active role is taken by the informant, but rather he merely remains passive and keeps his ears open for anything the defendant might wish to volunteer, then under the Henry analysis there is no agency relationship which would trigger the fifth and sixth amendment protections.
In Henry, the Court found that the informant, Nichols, was acting under instructions as a paid informant for the government. In return for information he was given money and this arrangement was mutually understood. In the instant case there is nothing in the record establishing that the informant Chavers had any prearranged guarantee of money in return for information, and it appears that the two hundred dollars that he did receive from the Marion County Sheriffs Department was drawn from a general reward fund and not given as an inducement to elicit information.
Lightbourne v. State, 438 So.2d 380, 386 (Fla. 1983). Nowhere does the court hold that in this case the informant played a passive role. Thus, I can only conclude that the district court erroneously gave deference to what it mistook to be a factual finding.
. This reading of the Florida Supreme Court opinion is not only clear from the text of the opinion itself, but it is also consistent with the fact that the prosecutor in the trial court also focused on the agency prong, rather than the "deliberately elicit" prong. Of course, this approach by the prosecutor, and by the Florida Supreme Court, is entirely appropriate. If Chavers were not an agent of the state, then his actions would not be attributable to the state, and his actions therefore would be irrelevant.
. In the first taped statement given to Investigator LaTorre, dated February 3, 1981, Chavers said:
He said that ah, he was telling me about, to check this out man, he said, "These fuckin cops don’t have nothing, man." I say, “Well, they don’t.” He say, "No.” He say like, "They went in the house, they didn’t get no fingerprints, they didn’t get no nothin.” So we went on you, you know, in other words I just played, you know, like I was a lawyer or something. I say, “Where was the lady at?” He say, “It was in the bed.”
Supplement to Appendix — Vol. II at 343.
. In the second taped statement given to Investigator LaTorre, dated February 12, 1981, Chavers said:
Yeh. I told him he was sick, man. He told more than me, he told Richard Carnegie and he told Larry Emmanuel, the guys I told you to talk to. Larry was the first one when I got in there, he told me and Larry. Larry was the first one, cause I told Larry; I say, “Larry”, "Try to help me put this thing together?” "You think this dude here raped that lady man?” You know me and him went on and me and him started coming up with clues, about the bullet that shot the lady, you could tell where the bullet was fired out of the gun and everything, see, the gun that he got caught with.
Supplement to Appendix — Vol. II at 351.
. Since the record amply demonstrates that Chavers took a very active role in eliciting information from the defendant, the Kuhlmann v. Wilson example of a "listening post" informant is inapposite to this case. Kuhlmann posed a situation where there were no conversations: the court found that the informant “at no time asked any questions" of the defendant, and that he “only listened” to the defendant's "spontaneous” and "unsolicited” statements. Kuhlmann, 477 U.S. at-, 106 S.Ct. at 2630. Upon those facts, which were presumed to be correct since they were subsidiary factual findings, the only possible legal conclusion was that there was no deliberate elicitation. By contrast, the facts of the instant case are very different.
. In light of my conclusion that this record cannot support any finding other than that Chavers deliberately elicited incriminating information from Lightbourne, my conclusion that the ultimate determination on "deliberate elicitation” is a mixed question of fact and law is technically unnecessary to my resolution of this case.
. This is especially true since Henry was a close case. Henry, 447 U.S. at 277, 100 S.Ct. at 2190 (Powell, J., concurring).