Opinion by Judge RYMER; Dissent by Judge REINHARDT.
RYMER, Circuit Judge:
Darnell Hayes was one of several targets of an investigation into a complicated, multi-party scheme to sell grades for classes that foreign students .did not attend, perform course work for, or take exams in. The government asked for (and got) court approval to take material witness depositions of several of the foreign students so that they could go home. Hayes was notified and was represented by counsel. Meanwhile, the government wired a co-conspirator who agreed to cooperate and to allow the government to tape a conversation with Hayes. Hayes was indicted nearly a year later, and sought to exclude the tape on Massiah grounds. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). [667] The district court found no Massiah violation because the depositions and the noncustodial taped conversation occurred before formal criminal proceedings were initiated against Hayes. The panel majority agreed; Judge Silverman dissented. United States v. Hayes, 190 F.3d 939 (9th Cir.1999), rehearing en banc granted, opinion vacated, 201 F.3d 1255 (9th Cir.2000).
Having reheard the matter en banc, we recognize that we are not writing on a clean slate. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), and on numerous other occasions, the Supreme Court has clearly articulated the rule: “[T]he Sixth Amendment right to counsel does not attach until after the initiation of formal charges.” Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Because no formal charges were pending against Hayes at the time of the surreptitious taping, it follows that the district court correctly determined that Massiah was not implicated and Hayes’s Sixth Amendment rights were not violated.
As the remaining issues raised on appeal do not require reversal, we affirm.1
I
Beginning in 1989, Sam Koutchesfahani solicited and accepted money from Middle Eastern foreign students to gain their admission to San Diego City College (SDCC) even though they did not meet SDCC’s admissions criteria. He gave counterfeit documents to Richard Maldonado, an admissions officer, and paid him to issue fraudulent INS Form I-20s that falsely certified that the foreign students had met SDCC’s admissions requirements. Then Koutchesfahani paid instructors at SDCC, Mesa College, and Palomar College to give passing grades to students who never attended classes or took any exams.
One of these instructors was Hayes, an adjunct professor at Mesa who taught classes in marketing and business. He was also approved by Ohio University, the University of Oklahoma, and Eastern Kentucky University to administer correspondence courses. Beginning in 1992, Hayes sold approximately sixty-five passing grades in his Mesa classes to approximately thirty-one foreign students who never attended class or completed class work and examinations. Although he never dealt with the students himself, Hayes was paid $150 per grade by Koutchesfahani for the Mesa classes, and $50 per course for thirty-four foreign students in eighty-seven correspondence courses for which he fraudulently certified the examinations as properly administered. For his part, Koutchesfahani received $109,000 from these students. As a result of Hayes’s participation in the conspiracy, these foreign students were able to maintain their non-immigrant F-l student status and to obtain college credits and degrees.
Hayes received between $11,513 and $14,150 in bribes from Koutchesfahani, but failed to report any of this income to the IRS or to State Unemployment officials. He also claimed “head of household” status with two exemptions at a time when he knew he qualified only for “single” status with one exemption, and failed to file any tax return at all for 1992.
At some point a criminal investigation was begun into the grade selling scheme, which stopped when Koutchesfahani and the foreign students found out about the investigation in the fall of 1994. However, Hayes and Koutchesfahani continued to talk. On November 30, 1995, Hayes received a target letter and consented to an interview by federal agents at his home, but told them a number of things that were untrue (for example, that Middle-[668] Eastern students attended class and he did not give passing grades to students who did not go to class; that no Middle-Eastern students were enrolled in Mesa classes in 1994; that money he received from Koutchesfahani was for marketing work on “pharmaceuticals” for Koutehesfahani’s company; and that he personally supervised the students’ correspondence exams at Mesa).
Later, when Hayes learned in March 1996 that Koutchesfahani was thinking about cooperating with the government, Hayes asked him not to cooperate against him. Nevertheless, Koutchesfahani did' enter into a cooperation agreement and on May 5, 1996, allowed agents to monitor and record a conversation he had with Hayes at a coffee house. During the conversation, Hayes said that he planned to lie at trial.
Meanwhile, on November 15, 1995, material witness complaints were filed under seal charging Abdulla K. Al-Rumaithi, Khallfan J. Al-Romaithi, Khalfan S. Al-Romaithi and Ghanem J. Al-Romaithi as material witnesses under 18 U.S.C. § 3144, which allows for the arrest and detention of material. witnesses but also provides that they may not be detained if their testimony can be secured by deposition.2 Rule 15 of the Federal Rules of Criminal Procedure allows depositions to be taken “[w]henever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial ...” and provides that if a witness is detained pursuant to § 3144 and his deposition is ordered, the witness may be discharged by the court. The witnesses were arraigned November 16 and the conditions of release that were imposed included appearing to testify if subpoenaed and not leaving the United States without permission of the United States Attorney or the court. They were scheduled to graduate during the middle of May 1996 and to return to the United Arab Emirates. On April 19, 1996, the government filed a motion to take pre-indictment videotaped depositions of these four student witnesses, and to modify the conditions of release to allow them to return to their country after the depositions had been taken. In its motion, the government named Hayes and five other targets. Each target was given notice. Hayes’s retained counsel neither objected to the motion nor attended the hearing. A magistrate judge granted the motion, “good cause appearing.” The court’s order directed “[a]ll parties” to attend each deposition, indicating that “[f]or purposes of this Order, the term ‘parties’ includes the United States Attorney, the material witnesses, and the following targets of the investigation: [five individuals and] ... Darnell Hayes.” The order prescribed a number of conditions for videotaping depositions consistent with Fed.R.Civ.P. 28(a), 29, 30 and 32(c), and 18 U.S.C. § 3144. A few days before May 6, 1996, when the depositions were to begin, Hayes’s privately-retained counsel substituted out and counsel was appointed for him. The depositions took place thereafter.3
On April 17, 1997, a federal grand jury indicted Hayes for conspiracy to defraud [669] the United States in violation of 18 U.S.C. § 371, and to commit mail fraud in violation of 18 U.S.C. §§ 1341, 1346 (Count 1); aiding and abetting mail fraud — i.e., fraudulent mailings of grade reports, transcripts, and correspondence examination certifications — in violation of 18 U.S.C. §§ 2, 1341, 1346 (Counts 2-54); filing false tax returns in violation of 26 U.S.C. § 7206(1) (Counts 55-56); and failing to file a tax return in violation of 26 U.S.C. § 7203 (Count 57). Hayes moved to suppress the tape of his conversation with Koutchesfahani, but his motion was denied. His statements were admitted at trial, over Hayes’s objections. After a jury trial, Hayes was convicted on all counts.
II
Hayes argues that the tape recording of his conversation with Koutchesfahani was obtained in violation of Massiah because he had been served with a target letter on November 30, 1995, the government knew at least as of February 7, 1996 (when he was subpoenaed to appear before the grand jury) that Hayes was represented by counsel, and in May 1996 the government conducted depositions of material witnesses based on a court order. He submits that the government’s invoking Rule 15 of the Federal Rules of Criminal procedure was the functional equivalent of an indictment, and that the trial process effectively began when the government sought to take the depositions. Thus, as he puts it, the government chose to create a “trial type situation,” which, in his view, Massiah forbade it from doing.
The government counters that, although Hayes was a target, he was not accused of anything when Koutchesfahani was wired. It points out that it merely indicated in its motion to take the depositions that it might seek indictments against the targets, and that telling a person that he is a target (which Hayes had known since November 1996) and may be prosecuted does not trigger the Sixth Amendment’s right to counsel. The government maintains that the investigation was ongoing and no charging decisions had been made at the time it became apparent that four of the students were material witnesses and that they would leave the country after completing their studies unless something was done. Accordingly, it sought permission to take these depositions under the combined authority of § 3144 and Fed.R.Crim.P. 15. The government acknowledges that Rule 15 clearly contemplates that depositions taken pursuant to its terms are taken post-indictment, when the Sixth Amendment rights to counsel and to confrontation will already have attached; however, it argues, these depositions were not simply Rule 15 depositions but rather were ordered “for good cause” in accordance with Rule 15 procedures, including those incorporated from the Federal Rules of Civil Procedure. Under these circumstances, it contends, the order scheduling the depositions cannot be considered the initiation of judicial proceedings for purposes of Massiah rights under the Sixth Amendment.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI (emphasis added). Literally, these prerequisites are not met here, as there was neither a “prosecution” nor was Hayes an “accused” at the time Koutchesfahani was wound up and wired to talk to him.
Right to counsel cases in general, and the Massiah line of cases in particular, involve incidents that occurred after the initiation of adversary criminal proceedings and that arose during a critical, post-indictment proceeding. As the Court explained in Gouveia, “our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.” 467 U.S. at 187, 104 S.Ct. 2292. Then-Justice Rehnquist embraced for the majority the plurality’s description of the right to counsel in Kirby v. Illinois:
[670] “In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)] it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.
“... [Wjhile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
Gouveia, 467 U.S. at 187-88, 104 S.Ct. 2292 (quoting Kirby, 406 U.S. at 688-89, 92 S.Ct. 1877) (citations omitted) (alteration in original). He then stated:
That interpretation of the Sixth Amendment right to counsel is consistent not only with the literal language of the Amendment, which requires the existence of both a “criminal proseeutio[n]” and an “accused,” but also with the purposes which we have recognized that the right to counsel serves. We have recognized that the “core purpose” of the counsel guarantee is to assure aid at trial, “when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.”
Id. at 188-89, 92 S.Ct. 1877 (quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)) (alterations in original). The opinion notes:
Although we have extended an accused’s right to counsel to certain “critical” pretrial proceedings, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), we have done so recognizing that at those proceedings, “the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both,” United States v. Ash, supra, at 310, 93 S.Ct. 2568, in a situation where the results of the confrontation “might well settle the accused’s fate and reduce the trial itself to a mere formality.” United States v. Wade, supra, at 224, 87 S.Ct. 1926.
Id. at 189, 92 S.Ct. 1877 (alteration in original). And adds:
Thus, given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings “is far from a mere formalism.” It is only at that time “that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”
Id. (quoting Kirby, 406 U.S. at 689, 92 S.Ct. 1877) (citation omitted). “It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Kirby, 406 U.S. at 690, 92 S.Ct. 1877 (emphasis added).
Massiah itself, of course, involved post-indictment contact. The defendant was indicted for violating the federal narcotics laws, retained a lawyer, pleaded not guilty, and was released on bail. While the defendant was free on bail, a federal agent succeeded by surreptitious means in listening to incriminating statements made by the defendant to his alleged co-conspirator, who was cooperating with the government, and the statements were introduced at trial. The Court held that a defendant is denied the basic protections of the Sixth Amendment “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah, 377 U.S. at 206, 84 [671] S.Ct. 1199 (emphasis added). As it stated, “[a]ny 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 crime.” Id. at 205, 84 S.Ct. 1199 (emphasis added) (quoting People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961)).
The Court has consistently held that the right to counsel attaches only after the initiation of formal charges, reiterating this rule in different, but analogous, contexts. For example, in Burbine, where the defendant sought to exclude inculpatory statements made to the police after his family had retained an attorney but before formal charges had been brought, the Court made it clear that “the possibility that the encounter may have important consequences at trial, standing alone, is insufficient to trigger the Sixth Amendment right to counsel.” Burbine, 475 U.S. at 432, 106 S.Ct. 1135. Instead, “the suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor.” Id. at 430, 106 S.Ct. 1135. The Court continued:
Its purpose, rather, is to assure that in any “criminal prosecutio[n],” U.S. Const., Arndt. 6, the accused shall not be left to his own devices in facing the “ ‘prosecutorial forces of organized society.’ ” By its very terms, it becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the “intricacies ... of law,” is needed to assure that the prosecution’s case encounters “the crucible of meaningful adversarial testing.”
Indeed, in Maine v. Moulton [474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985)] decided this Term, the Court again confirmed that looking to the initiation of adversary judicial proceedings, far from being mere formalism, is fundamental to the proper application of the Sixth Amendment right to counsel. There, we considered the constitutional implications of a surreptitious investigation that yielded evidence pertaining to two crimes. For one, the defendant had been indicted; for the other, he had not. Concerning the former, the Court reaffirmed that after the first charging proceeding the government may not deliberately elicit incriminating statements from an accused out of the presence of counsel. The Court made clear, however, that the evidence concerning the crime for which the defendant had not been indicted — evidence obtained in precisely the same manner from the identical suspect — would be admissible at a trial limited to those charges. The clear implication of the holding, and one that confirms the teaching of Gouveia, is that the Sixth Amendment right to counsel does not attach until after the initiation of formal charges.
Id. at 430-31, 106 S.Ct. 1135 (citations omitted). Likewise in McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991), the Court considered whether statements provided to the police after McNeil’s Sixth Amendment right to counsel had attached and had been invoked with respect to one armed robbery protected statements with respect to other offenses, and concluded that it did not “[b]ecause petitioner provided the statements at issue here before his Sixth Amendment right to counsel with respect to the [other] offenses had been (or even could have been) invoked.” Id. at 176, 111 S.Ct. 2204. The reason is that the Sixth Amendment right to counsel is “offense specific” and “cannot be invoked once for all future prosecutions, for it does not at[672] tach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Id. at 175, 111 S.Ct. 2204 (quoting Gouveia, 467 U.S. at 188, 104 S.Ct. 2292); see also Illinois v. Perkins, 496 U.S. 292, 299, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (noting that “[i]n the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable”); Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977) (right to counsel attached because preliminary hearing marked the initiation of adversary judicial criminal proceedings).
The law in this circuit is equally clear. In United States v. Kenny, 645 F.2d 1323 (9th Cir.1981), we explicitly rejected a Massiah challenge to a tape recording made by an informant of a conversation with a defendant (who was represented by counsel) before his indictment. As we noted, Kenny had not been charged, arrested or indicted at the time of the recording:
The short answer to Kenny’s contention that his right to counsel was breached is that the right to counsel is not viewed to attach prior to the initiation of adversary judicial proceedings against an accused. Where a case is still in the investigative stage, or in the absence of a person’s being charged, arrested, or indicted, such adversary proceedings have not yet commenced, and thus no right to counsel has attached.
Id. at 1338 (citation omitted). Similarly, we held in United States v. DeVaughn, 541 F.2d 808 (9th Cir.1976) (per curiam), that Massiah was not implicated by taping a telephone call made to a defendant after a felony complaint against him had been dismissed, but before he was prosecuted again.
Other circuits are in accord.4 Indeed, the Sixth Circuit has recently had occasion [673] to review the same Supreme Court teachings in United States v. Moody, 206 F.3d 609 (6th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 301, 148 L.Ed.2d 241 (2000). There, the government conducted pre-indictment interviews with Moody, without the assistance of counsel, and government attorneys offered him a deal. The court, albeit reluctantly, held that Moody’s Sixth Amendment rights did not attach even though by offering a specific plea bargain the U.S. Attorney’s Office was committing itself to proceed with prosecution. As it explained, the government had not instituted formal adversary proceedings against Moody and “[t]he Supreme Court’s holding that the Sixth Amendment right attaches only ‘at or after the initiation of judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,’ is a bright line test; it is a mandate that ‘the Sixth Amendment right to counsel does not attach until after the initiation of formal charges.’” Id. at 614 (citations omitted).
Here, there is no dispute that no formal charge, preliminary hearing, indictment, information, or arraignment had occurred when Hayes met Koutchesfahani at the coffee shop. The only question is whether asking for an order to take the depositions (thus to free the witnesses from detention), which included notice to the targets so that they could appear (thus to make the deposition potentially useable at trial, if there were one), is the “functional equivalent” of the initiation of formal charges. We think not, under the Supreme Court’s test. Asking for and taking the depositions did not formally initiate any criminal proceeding against Hayes. He was not thereby charged, indicted, or arraigned — -and may never have been.5 Instead, the government remained an investigator rather than a prosecutor and Hayes was a target, not “the accused.”
By the same token, it cannot matter that witness depositions have the trappings of trial about them, or that they are normally (or even, presumptively) taken only after formal charges are brought when the defendant’s Sixth Amendment rights have already attached.6 Although Rule 15 depositions are “for use at trial,” and contemplate the “defendant’s” presence (along with his counsel), examination, cross-examination, production of prior statements, and trial-type limitations on the scope and manner of taking testimony, they are not the trial. There may never be a trial; even so, depositions may be used only if the witness is unavailable within the meaning of Rule 804(a) of the Federal Rules of Evidence, if the witness does not show up or does show up but gives inconsistent testimony, and if the testimony is relevant to the charges. None of these things was (or could have been) known at the time Hayes’s conversation was taped. Therefore, Massiah was not violated for, “until such time as the “ ‘government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified’ ” the Sixth Amendment right to counsel does not attach.” Burbine, 475 U.S. at 431, 106 S.Ct. 1135 (quoting Gouveia, 467 U.S. at 189, 104 S.Ct. 2292 (quoting Kirby, 406 U.S. at 689, 92 S.Ct. 1877)).
Were resemblance to trial the standard, we would have less trouble saying that the Sixth Amendment was triggered. But it isn’t. Instead, we believe the Supreme [674] Court meant what it said in Ash, that Kirby “forecloses application of the Sixth Amendment to events before the initiation of adversary criminal proceedings.” Ash, 413 U.S. at 303 n. 3, 93 S.Ct. 2568. Beyond this, the fact that pre-indictment deposition testimony may have consequences at trial is insufficient to cause the right to counsel to attach. Burbine makes this clear. Burbine, 475 U.S. at 431, 106 S.Ct. 1135. Although post-indictment Rule 15 depositions might constitute a “critical stage” in a prosecution — requiring the presence of counsel — because of the potential consequences of such depositions at trial, that fact does not inform our analysis of whether a pre-indictment motion to take such depositions constitutes the initiation of formal charges. See id. at 431-32, 106 S.Ct. 1135. Being a target is not enough, either. As the Court has emphasized, the Sixth Amendment “attaches only at or after the initiation of adversary judicial proceedings against the defendant.” Gouveia, 467 U.S. at 187, 104 S.Ct. 2292 (emphasis added); see also Kenny, 645 F.2d at 1338. While adversary judicial proceedings had been initiated against the witnesses, none had been initiated against Hayes. And we cannot say that the government was formally charging Hayes (or any of the other targets) or was committing to do so when it sought to take the depositions of departing students, because the depositions served only to preserve their testimony for trial if there were a trial and the students did not return.
Finally, it has been suggested that Hayes’s Massiah rights were engaged because counsel was appointed for him when his retained counsel stepped aside. The argument is that the Criminal Justice Act (like Rule 15) contemplates that representation be provided for persons who are charged or who are entitled to appointment of counsel under the Sixth Amendment and that, because counsel was appointed for Hayes, his right to counsel must have attached in order to meet the CJA requirements. See 18 U.S.C. § 3006A. The record does not indicate on what basis the magistrate judge appointed counsel for Hayes, but that is of no moment because, in any event, the argument begs the question. The appointment of counsel does not create the right to counsel. The Supreme Court’s test for when the right to counsel attaches focuses on the initiation of formal criminal charges; the appointment of counsel does not, and indisputably cannot, formally initiate criminal proceedings against anyone. Nor does the appointment of counsel somehow establish that formal charges have been initiated, if they have not been.7 Put differently, the [675] Sixth Amendment right to counsel does not itself turn on whether a target has counsel. Indeed, we held the opposite in Kenny with respect to retained counsel, and it cannot make a difference of constitutional magnitude that counsel is appointed instead of retained. Moreover, there are many different reasons counsel might be appointed, some of which are not constitutionally compelled, cf. United States v. Larkin, 978 F.2d 964, 969-70 (7th Cir.1992) (urging appointment of counsel for suspects during pre-indictment line ups, “notwithstanding the absence of constitutional compulsion”), and some of which involve constitutional rights other than the Sixth Amendment right to counsel. For example, in light of the Fifth Amendment’s prohibition against compelled self-incrimination, counsel is often appointed for purposes of advising a target who has been called before a grand jury, see, e.g., Ingle, 157 F.3d at 1151, despite the fact that grand jury investigation does not trigger the Sixth Amendment right to counsel, see id.; In re Grand Jury Investigation, 182 F.3d 668, 671 (9th Cir.1999) (“The Sixth Amendment is ... inapplicable to a grand jury witness, because he has not yet become an ‘accused.’”). Hayes was in this very position; he was the target of a grand jury investigation during the time in question, but had not yet been the subject of a formal charge, preliminary hearing, indictment, information or arraignment. Under these circumstances, the Sixth Amendment right to counsel did not apply.
In sum, the Supreme Court, this court, and every other circuit to consider a similar issue has adhered to the rule that adversary judicial proceedings are initiated “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” This is a clean and clear rule that is easy enough to follow: Initiating any of these specific proceedings “marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Kirby, 406 U.S. at 690, 92 S.Ct. 1877. We are loath to engraft some new, pre-indictment proceeding onto the rule, thereby making it no longer clean and clear — and outside the clear boundaries the Supreme Court has established.
This said, we can’t help being somewhat queasy because it looks like the government is trying to have its cake and eat it too — on the one hand seeking the court’s authority to take depositions that the Federal Rules of Criminal Procedure contemplate are available only after formal charges have been brought, but on the other hand, setting out to tape a target’s incriminating statements which it can only do if formal charges have not been brought. However, it seems clear this is not a Massiah problem. While it may present some other kind of problem, no other theory has been advanced.8 We simply hold that the Sixth Amendment right upon which Hayes seeks reversal did not attach before criminal proceedings were formally instituted against him, in his case when an indictment was returned.
Ill
Alternatively, Hayes maintains that the recording ran afoul of his rights under Miranda v. Arizona, 384 U.S. 436, [676] 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This cannot be so, as Hayes voluntarily met Koutchesfahani at a coffee house. It was a non-custodial encounter, to which Miranda does not apply. See id. at 444, 86 S.Ct. 1602; see also McNeil v. Wisconsin, 501 U.S. 171, 177-81, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).
CONCLUSION
Seeking and obtaining a court order for pre-indictment witness depositions did not initiate “adversary judicial proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment” against Hayes. Nor does it matter that he had appointed counsel. As the touchstone of Sixth Amendment analysis under Massiah, Gouveia, and Moran is the bringing of formal charges, and none had been brought against Hayes at the time his conversation with Koutchesfahani was surreptitiously taped, his Massiah rights were not implicated and the Sixth Amendment right to counsel was not violated by introduction of his statements at trial.
AFFIRMED.