Because no formal charges were pending against appellant at the time the government wired a coconspirator who agreed to cooperate and allow the government to tape a conversation with appellant, there was no violation of Massiah v. United States (1964) 377 U.S. 201. Therefore, the district court did not err in finding that Massiah was not implicated, and that the Sixth Amendment was not violated. The fact that appellant had been served with a target letter, that the government knew appellant was represented by counsel because he had been subpoenaed to appear before a grand jury, and that the government had conducted depositions of material witnesses based on a court order did not create a “trial type” situation for purposes of Massiah. Moreover, the recording did not run afoul of appellant’s rights under Miranda v. Arizona (1966) 384 U.S. 436 because the recording was noncustodial and voluntary. Chief Judge Hug and Associate Judges Graber, Fletcher and Reinhardt, dissented, finding that no U.S. Supreme Court case envisioned these circumstances, where the trial had begun and prosecution witnesses had been called to the stand prior to the filing of the indictment. The dissenters would have reversed appellant’s conviction.