dissenting.
This court’s decision in Moore v. United States, 178 F.3d 994 (8th Cir.1999), adopting the bright-fine rule of United States v. Birbal, 118 F.3d 342, 346 (2d Cir.1997), is binding on the courts below and on this panel. There is no doubt or argument about that. The district court framed its decision as a rejection of Moore and, in the process, drew such to the attention and focus of this panel’s majority.
The district court’s decision, however, in my view, is not inconsistent with Moore. Moreover, facts found by the district court but overlooked by the majority support the conclusion McNeese was a government agent when soliciting incriminating statements from Johnson. Because I suggest the district court was on sound factual and legal ground when it held McNeese was a government agent who deliberately elicited incriminating statements from Johnson in the absence of counsel after her Sixth Amendment rights had attached, I respectfully dissent.
I
In Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Supreme Court recognized a defendant is denied basic protections of the Sixth Amendment “when there [is] used against [her] at [her] trial evidence of [her] own incriminating words, which federal agents had deliberately elicited from [her] after [s]he had been indicted and in the absence of counsel.” Id. at 206, 84 S.Ct. 1199. The right to counsel attaches not only to direct confrontations by known government officers, but also to “indirect and surreptitious interrogations” by covert government agents and informants. Unit*924ed States v. Henry, 447 U.S. 264, 272-78, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The majority tethers its decision to the agency prong, holding McNeese was not a government agent while he solicited incriminating statements from Johnson.
In Moore we held “an informant becomes a government agent for purposes of [Massiah] only when the informant has been instructed by the police to get information about the particular defendant.” 178 F.3d at 999 (quoting Birbal, 113 F.3d at 346) (emphasis added). This asks a couple of questions: was there a government instruction to provide information, and was Moore the subject or target of the instruction? The case does not define “instruction.”
The question presented in Moore was whether an informant, by entering into an agreement to cooperate with the government for one purpose, was also a government agent when he obtained information from someone clearly outside the scope of the agreement to cooperate. The informant in that ease, Hartwig, indisputably had an agreement with the government, however, “there [was] no evidence to suggest it had anything to do with Moore.” Id. Because Moore was not the target or subject of the government instruction to obtain information, Hartwig was merely acting as an “entrepreneur” or “volunteer” when he obtained Moore’s incriminating statements. Entrepreneurs and volunteers are not government agents. United States v. Watson, 894 F.2d 1345, 1347 (C.A.D.C.1990); Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986).
McNeese’s history of cooperating with the government does not sufficiently distinguish this case so as to remove it from Moore’s reach. I therefore agree with the majority opinion; Moore applies to the decision at hand. Proper application of Moore would read as follows: McNeese’s history as a government informant does not make him a government agent with respect to Johnson; there must be governmental instruction to get information about her.
This case, however, involves substantial evidence of instruction to secure information about Johnson which goes beyond McNeese’s history as an informant. While Moore directs only government “instruction” creates agency, it offers no guidance on what kind of instruction will suffice, or how much. My view is the principal defect in the majority opinion is it does not apply the “instruction” test announced in Moore or explain its employment where there is evidence of government instruction. The real issue to me, sidestepped by the majority, is what kind of government instruction, and how much of it, makes an informant a government agent for Massiah purposes.
II
The majority’s treatment of the facts found by the trial court deserves special mention. “When a district court grants a motion to suppress evidence, we review its findings of fact for clear error, and its conclusions of law de novo.” United States v. Guevara-Martinez, 262 F.3d 751, 753 (8th Cir.2001). In the memorandum and order under review the district court laboriously detailed the evidence taken at the suppression hearing and explained the foundation for its factual findings with admirable care. Without so much as a nod to the proper standard of review, however, the majority ignores many of these well-grounded findings of fact.
Johnson did not land in the same jail as the informant by happenstance, as did the defendants in Moore and Birbal. Instead, the lawyer prosecuting Johnson directed the U.S. Marshal to send her to Benton County jail, the only facility where his *925superstar informant, a man, would have access to her. The prosecutor did so anticipating the intense publicity surrounding Johnson’s arrest for the murders and the still-missing bodies would prompt McNeese to interrogate Johnson. The district court found the prosecutor must have known McNeese was likely to obtain incriminating statements from Johnson.
Anticipating it would be a pivotal fact, the issue of the prosecutor’s motivation for sending Johnson to Benton County jail was hotly disputed in the suppression hearing. The government claimed the prosecutor wanted Johnson in Benton County jail for security reasons but the district court rejected that reason as pre-textual. The district court explained it disbelieved the government’s proffered motivation for two reasons: inconsistencies in the prosecutor’s evidence and the testimony of the U.S. Marshal indicating prosecutors rarely direct the placement of prisoners, and when they do, it is often for the purpose of placing them with informants. I see no clear error in the district court’s finding the prosecutor was motivated not by security concerns but by an intent to circumvent Johnson’s Sixth Amendment right to counsel.
In fact, McNeese correctly interpreted the prosecutor’s actions as an instruction to help the government obtain information from Johnson, later saying he believed Johnson was incarcerated with him so he “could work her.” And work her, he did. The prosecutor received confirmation his plan had worked no later than August 14, when he received a memorandum from Detective Wright confirming McNeese was interrogating Johnson about the murders. These well-supported facts informed the district court’s conclusion McNeese was a government agent, and they should govern ours. The majority, however, fails to mention these facts.
On appeal the government did not assert the district court committed clear error, and the majority found no such error. Nonetheless, the majority carefully selects facts which paint a picture of a prosecutor with good kismet, not one with an unconstitutional plan. By ignoring facts evincing the prosecutor sought to circumvent the Sixth Amendment, the majority made its holding more palatable. But in my view this panel has no more business ignoring findings of fact made by the district court (in the absence of clear error) than the district court had in purporting to repudiate our legal decisions. I therefore disagree with the majority’s treatment of the district court’s findings of fact.
Ill
Onwards, then, to the meatier issue of the day: whether the district court erred in concluding McNeese was a government agent when he interrogated Johnson. Moore tells us McNeese was a government agent only if he was “instructed” by the government to get information about Johnson. The majority recognizes it is possible for the instruction to be by implication. Ante at 921. I agree; it would diminish Massiah, Henry and Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), if we were to limit agency to cases where the government gave the informant direct, explicit oral or written instructions to obtain evidence regarding a defendant.
The acts of the prosecutor, whom McNeese knew well and who obtained a substantial reduction in McNeese’s sentence in exchange for other informing activities, spoke volumes to McNeese. The prosecutor had Johnson sent to Benton County jail so McNeese could interrogate her, McNeese correctly interpreted the prosecutor’s acts and obtained the information. To quote John Wayne, ‘What do you want me to do? Draw you a picture? *926Spell it out?” THE SEARCHERS (Warner Brothers 1956). McNeese didn’t need the instructions spelled out; both he and the prosecutor knew the score.
The government did not obtain Johnson’s incriminating statements by luck or happenstance; McNeese was not an independent entrepreneurial jailhouse informant who crossed Johnson’s path by chance. Their meeting was purposefully arranged by the prosecutor to “circumvent ] the accused’s right to have counsel present in a confrontation between the accused and a state agent.” Robinson v. Clarke, 939 F.2d 573, 576 (8th Cir.1991) (quoting Maine v. Moulton, 474 U.S. at 176, 106 S.Ct. 477).
The district court’s conclusion McNeese was a government agent draws considerable support from the decision in Maine v. Moulton, in which the Supreme Court explained:
The Sixth' Amendment ... guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation.... [KJnowing 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. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.
474 U.S. at 176, 106 S.Ct. 477. The government’s instruction to McNeese to obtain incriminating information from Johnson made him a government agent. Because McNeese deliberately elicited the incriminating information it cannot be used to secure her conviction.
IV
Although the district court was unwise to characterize its decision as departing from Moore, its ruling was nevertheless in line with that decision. There is ample evidentiary support for the conclusion the government instructed McNeese to obtain information from Johnson about the murders. Because I conclude the district court did not err in holding McNeese was a government agent when he interrogated Johnson outside the presence of counsel after her Sixth Amendment rights had attached, I respectfully dissent.