dissenting:
If the relatively simple issues addressed by the majority opinion were all that this case involved, I would certainly concur. But the relative simplicity of that opinion is purchased at the expense of addressing appellant’s constitutional right to counsel, a claim that the majority inexplicably ignores. Watson claims that his sixth amendment rights were violated when evidence, obtained by an acknowledged government agent after charges attached, was used in his then-pending prosecution. The record bears him out, and our precedents make it clear that this action by the government deprived Watson of effective assistance of counsel. I think appellant is entitled to a new trial because such evidence should have been excluded.
The majority’s discussion of the sixth amendment right to counsel fails to confront this problem. The majority correctly points out that the witness who provided the tainted evidence, Mr. Young, was not a government agent at the time he shared a jail cell with appellant. It is also true that Young had not been placed in the cell to obtain information from Watson, nor was he an “informant at large” who had been instructed to “troll the jail cells” eliciting information indiscriminately. Although Young had been, and currently was, a paid government informant at the time he shared a cell with Watson, Young’s placement in the cell was simply coincidence. The statements made by Watson while in the jail cell, as the majority explains, did not implicate government action and could be admitted without violating the sixth amendment.
But that very analysis demonstrates why Young was an agent during his post-release discussions with Watson and why the testimony as to those post-release discussions was inadmissible. The majority conveniently fails to mention the dramatic change in Young’s status at the time of his visit to Watson’s home to discuss a proposed drug deal. DEA Special Agent Gray testified that while Young was in jail, he suggested to Young that Young begin to “make a case” on Watson after their release. Young testified that he did so; he contacted Watson at his home and he gathered evidence (possession of cocaine) which was later introduced at Watson’s trial in this case.
The Supreme Court’s decisions leave no doubt that Watson was a government agent at this second meeting. Once the government forms an agreement with an individual to elicit incriminating information from a criminal suspect, an agency relationship has been created. See, e.g., Henry v. United States, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); United States v. Sampol, 636 F.2d 621 (D.C.Cir.1980). Indeed, in the Supreme Court’s seminal case on this issue, Henry v. United States, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115, the Court found that an agency agreement was formed even though the police expressly prohibited the informant from questioning the defendant because the police nevertheless created incentives for the informant to ignore that prohibition. The evidence of agency here could not be more compelling; the DEA agent instructed Young to “make a case.”
As the Supreme Court has explained, the Constitution requires exclusion of any incriminating statements deliberately elicited by the government after a defendant has been indicted. Massiah v. United States, 377 U.S. 201, 205, 84 S.Ct. 1199, 1202, 12 L.Ed.2d 246 (1964). Massiah recognized the fundamental right of defendants to lawyers’ help at all critical stages of prosecution beginning at the indictment. It *1352would, as the Court explained, be patently illogical to raise the right to counsel as a bar to government attempts to interrogate a suspect only when it is done forthrightly, but not when it is done through confederates in a sneaky fashion. “ ‘Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with a crime.’ ” Id. (quoting People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1962)). Although it is entirely proper to continue an investigation of a defendant's suspected criminal activities after he has been indicted, incriminating statements covertly obtained by government agents “[can] not constitutionally be used by the prosecution as evidence against him at his trial.” Id. 377 U.S. at 207, 84 S.Ct. at 1203. As the majority acknowledges, the locus of the discussions does not alter our analysis. A government agent can violate a defendant’s constitutional right to counsel just as effectively on the street as in jail. Maine v. Moulton, 474 U.S. 159, 177 n. 13, 106 S.Ct. 477, 177 n. 13, 88 L.Ed.2d 481 (1986).
The majority’s failure seriously to treat this problem rests on two very thin reeds. First, the majority tries to construct a waiver of appellant’s claim because he either failed to raise it at trial or abandoned it on appeal. That is not what happened.
Watson specifically raised a sixth amendment objection to all of Young’s testimony at trial. His counsel specifically stated, “I would move to exclude Mr. Young’s testi-mony_ One basis would be, your Hon- or, that it violates my client’s Sixth Amendment right to counsel by having him testify, for reasons that I previously mentioned to the Court.” Tr. 323; see also tr. 274, 275, 284. The trial court clarified that the Massiah issue went to the post-release conversations which occurred after Young had been instructed to make a case against Watson. Tr. 269, 271. As we noted in United States v. Johnson, 802 F.2d 1459, 1465 n. 14 (D.C.Cir.1986), to preserve a claim for appeal, an objection need only be “adequate to draw the trial court’s attention to the ... problem.” Here, Watson drew the court’s attention directly to the problem: the sixth amendment prohibition against Young’s testimony.
Watson renewed his sixth amendment challenge on appeal. It is true that appellant’s brief focused upon the least protected portion of Young’s testimony — namely those statements made while Watson and Young were in jail. Nevertheless, the sixth amendment problems with the other aspects of Young’s testimony were abundantly clear to this Court and consumed the majority of its attention at oral argument. In response to this Court’s questioning, appellant’s counsel repeatedly maintained that Young was an agent of the government at the time of the Philadelphia encounter. Even in response to a complex question at the end of oral argument, counsel affirmed that the post-release encounter did form part of the basis for his objections on appeal. Ante at 1350. That his answer was no more precise than the question posed can hardly be deemed evidence of waiver. To claim now that Watson’s inartful briefing somehow waived his legal objections is disingenuous.
The majority’s second basis for declining to address Watson’s claim stems from its view that the issue raised is somehow novel. I do not think it novel at all. Young’s statements regarding his conversation with Watson after Young had become a government agent are clearly inadmissible. Mas-siah is uncompromising: the State may not introduce incriminating statements deliberately elicited by the government after charges have been filed in a proceeding on that offense. It makes no difference that Young originally elicited Watson’s statements for use in a separate proceeding or that they were probative of a separate crime. In Maine v. Moulton, 474 U.S. 159, 180, 106 S.Ct. 477, 489, 88 L.Ed.2d 481 (1985), the Supreme Court stated that
incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were investigating other crimes, if, in obtaining the evi*1353dence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.... [T]he fact that the police had additional reasons for recording [defendant’s statements] ... is irrelevant.
Regardless of the government’s motives, the statements elicited here directly pertained to the charges which were then pending against Mr. Watson. The incriminating statements elicited from the defendant were used to rebut Watson’s claim that he did not intentionally possess drugs and were introduced to establish intent, one element of the crime of “possession with intent to distribute.” As the Fifth Circuit cogently observed, “conviction require[s] proof of both actus rea and mens rea elements of the indicated offenses. Evidence obtained from the government’s surreptitious confrontation with defendant is no less incriminating because it tends to prove criminal intent rather than criminal act.” United States v. Anderson, 523 F.2d 1192, 1196 (2d Cir.1975).
To restrict the words “pertaining to” to mean only statements involving the same physical act for which the defendant is charged is not only logically unsound but also is contrary to the prophylactic purposes expressed in Massiah. To permit the introduction of probative admissions in these cases would encourage the government to pursue pretextual investigations in order to collect evidence that, cumulatively, would tend to prove intent, motive, habit, or any of many other factors going to an element of the original offense whenever Massiah bars them from collecting this evidence directly. This would neither serve the purposes of Massiah nor ultimately enhance the state’s interest in crime-fighting. The state already can introduce incriminating statements relating to new crimes in proceedings on the new crimes. Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). If the State wishes to make a separate case, it is free to do so, as long as it keeps that case separate and does not use such incriminating evidence acquired by a government agent from the defendant in the first proceeding after charges are brought.
The issue so readily ignored by the court today is not some new invention of constitutional law. Even before Moulton was decided, the Supreme Court summarily reversed a conviction on Massiah grounds in almost identical circumstances where the court admitted statements that were probative of the indicted offense even though they concerned — and were made in the course of — an investigation into separate crimes. Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967). In Beatty, the suspect’s incriminating statements offering to negotiate the sale of handguns and to suborn perjury were introduced at his pending trial for previous, illegal handgun sales. The Court reversed despite the fact that the statements referred to a separate offense that was merely probative of the pending charge. Moul-ton merely confirmed what several circuits reading Massiah and Beatty had already divined. See, e.g., Mealer v. Jones, 741 F.2d 1451 (2nd Cir.1984); United States v. Anderson, 523 F.2d 1192 (5th Cir.1975).
After Moulton this court’s duty to reverse is clear. “Knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” Moulton, 474 U.S. at 176, 106 S.Ct. at 487. If an informant has been enlisted by the state and attempts to introduce incriminating statements in the first proceeding (regardless of the motive for collecting or introducing these statements), the statements must be ruled inadmissible. See, e.g., U.S. v. Nocella, 849 F.2d 33, 37 (1st Cir.1988) (use of defendants’ “new crime” admission in connection with an earlier charge would “clearly be prohibited.”).
Because Young was instructed by the DEA to “make a case” against Watson after Watson’s sixth amendment rights had attached, and because Young subsequently elicited statements by Watson that he sold and knowingly possessed drugs, Moulton precludes use of this testimony at trial. That the majority shies away from this *1354result reveals only that the sixth amendment is an inconvenient doctrine for the government and the bench alike. It would certainly be easier for law enforcement officials if they could conjure the spirit of fear and remorse in a suspect by issuing indictments and then exorcise and record the suspect’s secret thoughts by planting attentive specters around him. The Constitution’s standing requirement that attorneys be invited to this mystical ritual no doubt introduces an unwelcome fly in the prosecution’s potion. Likewise, judicial decisions would certainly be easier to write if we could blithely ignore those issues that unsettle the flow of justice or require difficult choices. However, there is no “convenience exception” buried within the sixth amendment. We twist the letter and the spirit of the Bill of Rights by requiring some specific chant to be made before a constitutional claim is deemed to be raised. I dissent.