No. 96-6841 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JOHN JAVILO MCCULLAH, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General ROBERT J. ERICKSON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether, assuming arguendo that petitioner's inculpatory state- ments to a confidential informant during the course of an on-going drug trafficking conspiracy were involuntary, the court of appeals correctly held that their admission was harmless beyond a reason- able doubt as to the guilt phase of petitioner's trial. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-6841 JOHN JAVILO MCCULLAH, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1087-A1114) is reported at 76 F.3d 1087. The opinion of the court of appeals on denial of rehearing (Pet. App. B1136-B1146) is reported at 87 F.3d 1136. JURISDICTION The judgment of the court of appeals was entered on February 5, 1996. A petition for rehearing was denied on June 26, 1996. On August 28, 1996, Justice Breyer extended the time for filing a peti- tion for a writ of certiorari to and including November 23, 1996. The petition for a writ of certiorari was filed on November 22, ---------------------------------------- Page Break ---------------------------------------- 2 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT After a jury trial in the United States District Court for the Eastern District of Oklahoma, petitioner was convicted of murder in furtherance of a continuing criminal enterprise, a capital offense, in violation of 21 U.S.C. 848(e) and 18 U.S.C. 2 (Count 16) ; con- spiring to distribute and to possess with intent to distribute in excess of five kilograms of cocaine and 100 kilograms of marijuana, in violation of 21 U.S.C. 846 (Count 1); and conspiring to travel (Count 13) and traveling in interstate commerce with intent that a murder-for-hire be committed (Count 14) , in violation of 18 U.S.C. 371, 1958, and 2. After a bifurcated penalty hearing, the jury recommended that petitioner be sentenced to death on his capital murder conviction. In accordance with the jury's recom- mendation, the district court imposed a sentence of death on Count 16. In addition, the court sentenced petitioner to concurrent terms of life imprisonment for his convictions on Counts 1 and 14 and to a concurrent term of five years' imprisonment for his con- viction on Count 13. The court of appeals affirmed petitioner's convictions and his non-capital sentences, but vacated his death sentence and remanded the case for a new capital sentencing hearing (Pet. App. A1087-A1114) . 1. Between 1989 and 1992, Joseph "Eddie" Arvizu headed a California-based drug trafficking enterprise that imported and distributed massive quantities of cocaine and marijuana. Norwood ---------------------------------------- Page Break ---------------------------------------- 3 Hutching, a principal distributor in the Arvizu organization, used a cadre of cross-country drivers to transport cocaine and marijuana from California for eventual distribution in North Carolina, Tennessee, and Oklahoma. In April 1991, a pickup truck containing approximately 100 kilograms of cocaine and valued in excess of 2,000,000 was stolen from Hutching while it was parked at a tempo- rary storage site in rural Oklahoma. Although the culprit was in fact James Shiew, one of Hutching's cross-country drivers, Arvizu and his operatives suspected Avery Rogers and Ruth Ford. Ruth Ford owned the property where Hutching's truck was parked; Avery Rogers was a friend of Ford's who operated a used car lot in rural Oklahoma. Pet. App. A1095. Shortly after the theft, Arvizu and several of his confeder- ates, including Ramon Molina and Thomas Sanchez, arrived in Okla- homa to assist Hutching in efforts to recover the stolen cocaine and to punish the persons responsible for the theft. Those initial efforts culminated in an unsuccessful attempt to kidnap Ruth Ford and an unsuccessful attempt to murder Avery Rogers in an ambush. Pet. App., A1095-A1096. In late May and early June 1991, the Arvizu organization mounted a second effort to kidnap and murder Rogers. Molina recruited a hit squad that included, among others, petitioner, two Mexican "pistoleros" (i.e., gunmen) , and Tony Wiscowiche and Joe Mendoza, both of whom later cooperated with the government. The hit squad traveled from California to Wagoner, Oklahoma, where it took up temporary residence at a house owned by Arvizu. Under a ---------------------------------------- Page Break ---------------------------------------- 4 plan devised, in part, by petitioner and approved by Molina, peti- tioner was to pose as a prospective car buyer and lure Rogers from his used car lot so that other hit squad members could kill him in an ambush. Petitioner volunteered to act as the lure because, as the lone non-Hispanic on the hit squad, he would arouse less suspi- cion. In addition, petitioner and Wiscowiche participated in various preparatory events, including the purchase of several used cars for use during the planned ambush, the purchase of ammunition, reconnaissance near the used car lot, and the selection of the ambush site. Pet. App. A1096. On June 3, 1991, as a rehearsal, petitioner visited Rogers' used car lot and went with Rogers for a test drive. Petitioner told Rogers that he would return later to purchase the car. After the test drive, petitioner reported to his confederates that "the guy [wa]s * * * going for the bait," and that, in lieu of the multi-member hit squad, he "could have did it right there" if he had been armed. 16 R. 182-183; 37 R. 48-49; see also Pet. App. A1096. 1 On the morning of June 4, 1991, Wiscowiche distributed cash that he had received from Molina to petitioner and other members of the hit squad, with petitioner receiving 2,000. Petitioner dir- ected the other members of the hit squad to their assigned places and then returned to Rogers' used car lot, where he asked to test drive another car. Rather than accompanying petitioner himself, however, Rogers told Jewell Leon Collins, who cleaned cars at the ___________________(footnotes) 1 "R." refers to the record in the court of appeals. ---------------------------------------- Page Break ---------------------------------------- 5 used car lot, to take petitioner for a test drive. Although Rogers and Collins were so dissimilar in physical appearance that they could not be confused for one another, petitioner departed with Collins for a test drive. Petitioner drove the car to the ambush site, steered it into an entryway to a field, and quickly exited the vehicle. At the same time, one of the "pistoleros" jumped from a car that was following behind, ran to the used car, and shot Collins' at point-blank range, killing him instantly. The members of the hit squad then returned to California. Pet. App. A1096- A1097 . Arvizu and Molina became upset when they later discovered that the hit squad had killed "the wrong guy." The two men discussed plans to mount a third Oklahoma expedition to "kill the right guy." In addition, Arvizu and Molina undertook an investigation to ascer- tain what went wrong and to assess the consequences. They conclu- ded that petitioner was responsible for knowing the identity of the intended target and that he purposely misidentified the victim. From his conversations with other members of his drug organization, Arvizu also learned that petitioner had likely discussed the botched murder with his relatives and that he would probably talk to authorities if arrested. See 16 R. 158, 192; 18 R. 75, 21 R. 49-53, 57, 59-61, 99-100, 138. 2. On November 13, 1991, Gabriel Lozano, a former member of Arvizu's organization who was then cooperating with the government as an informant, engaged petitioner in a lengthy conversation, during which petitioner inculpated himself regarding Collins' ---------------------------------------- Page Break ---------------------------------------- 6 murder. 2. The circumstances surrounding the conversation, which was both recorded by a concealed recording/transmitting device and monitored by a surveilling agent, were developed at a pretrial suppression hearing. Before Lozano met with petitioner, the supervising agent ex- aimed both the car and Lozano to make sure that Lozano did not have any drugs or drug paraphernalia (70 R. 23-24, 93), instructed Lozano to avoid any situations where he would be exposed to drugs (70 R. 24, 57), and gave Lozano approximately 100 in expense money (70 R. 66, 122). Shortly after being picked up by Lozano, peti- tioner borrowed 20 dollars from Lozano and directed Lozano to drive to a specified house. Petitioner entered the house alone. According to petitioner, once in the house he purchased a "spoon" of heroin with the money borrowed from Lozano. After petitioner injected the heroin, he and Lozano continued their drive. 14 R. 3- 4; 70 R. 20, 55-56, 65, 93-97, 122-124, 130. During their ensuing conversation, which occurred in Lozano's automobile and in a restaurant at which they stopped, Lozano raised the possibility that Arvizu and Molina may have placed a contract on petitioner's life because they were upset that the wrong person ___________________(footnotes) 2. On several occasions in June and July 1991, before Lozano began cooperating with the government, petitioner had also made in- criminating admissions to Lozano concerning Collins' murder. Thus , petitioner stated that he and others had gone "to Oklahoma to do a job for Ray [Molina]"; that he had purchased vehicles for use in the Oklahoma operation with money that he had received from Molina; that he and his confederates had stayed in a lake-side house that Arvizu owned in Oklahoma; that the victim had struggled before be- ing killed; and that he had received 3,000 and a white van for his participation in the Oklahoma expedition. 21 R. 50-51, 57-58, 62- 64. ---------------------------------------- Page Break ---------------------------------------- had been killed in Oklahoma. 70 R. 26, 57-58. Petitioner stated that Molina had previously threatened him and that he "kn[e]w what they're capable of doing." 70 R. 110. Explaining that the murder target had not adequately been identified to him beforehand, petitioner stated that he believed at the time that he had "brought the right guy" to the murder site. 70 R. 26. Petitioner further stated his willingness "to go back there himself and take out th[e] * * * car dealer * * * so he could clean up his act with [Arvizu and Molina] ." 70 R. 25-26, 110-112. At no time during the conver- sation did Lozano make any threats or promises to petitioner, nor restrain petitioner's freedom of movement in any way. 3. See 70 R. 21-22, 24, 104. 3. Based on the evidence at the suppression hearing and its review of the tape recording of the conversation between Lozano and petitioner, the district court denied petitioner's motion to ex- clude evidence of his conversation with Lozano. See Memorandum Order dated January 25, 1993 (docket entry 390). The court found "some evidence" that petitioner "w[as] under the influence of some drugs at the time of [his] conversation[ ] with Lozano" and "may ___________________(footnotes) 3 Both the agent monitoring the conversation (70 R. 20, 22- 24, 36, 57-58; see also, 36 R. 15) and Lozano (70 R. 97, 101) testified that petitioner was coherent during the entire conversa- tion and that his communicative abilities were undiminished by his claimed use of heroin. Based on the numerous previous occasions when he had seen petitioner under the influence of heroin, Lozano further testified that petitioner was able to "maintain" his condi- tion of coherence so that no one could "really tell the difference" when he was under the influence of heroin and when he was not. 70 R. 94-96, 135. ------------------------------------------- Page Break ---------------------------------------- 8 have used money given to him by Lozano to purchase a small quantity of heroin." Id. at 6. The court nonetheless found that the government did not provide controlled substances to [petitioner] or induce, promote, or encourage [their] use by [him]. Any drug use by [petitioner] was voluntary and independent of any government action. Further, * * * any drug influence on [petitioner] during [his] conversa- tion[ ] did not override [petitioner's] free will or rational intellect in giving those statements. Ibid. The district court further found "nothing improper about the government's conduct in the methods or means used in obtaining these statements" from petitioner. Id. at 6-7. At trial, Lozano testified concerning three statements made by McCullah during their November 13 conversation (21 R. 112-113): 4 petitioner's statement that he "did everything but pull the trig- ger" in connection with the Collins murder; his complaint that he "got robbed" because he was paid only 1,800 for the murder; and his expressed willingness to allay whatever suspicions Arvizu harbored about him by "go[ing] back and [killing Rogers] myself." 4. The court of appeals affirmed petitioner's convictions and his non-capital sentences, but it set aside his capital sentence. Pet. App. A1087-A1114. The court characterized petitioner's con- versation with Lozano as follows (id. at A1100): During the three-hour drive, Mr. Lozano told [petitioner] that the Arvizu organization was planning to kill him be- cause of the fiasco in Oklahoma and offered to intercede with Arvizu on [petitioner's] behalf provided that he tell him the truth about the events in Oklahoma. [Peti- ___________________(footnotes) 4. The district court required the government at trial to elect between playing the tape recording of the conversation and having Lozano testify about the conversation. 70 R. 84-87. The government elected to use Lozano's testimony in lieu of the tape recording. ---------------------------------------- Page Break ---------------------------------------- 9 tioner] proceeded to tell Mr. Lozano about the happenings in Oklahoma, discussing the small sum he was paid and ex- pressing his willingness to go back to Oklahoma and do the job himself. Later in the conversation, [petitioner] grew frightened of Mr. Lozano, seeming to believe that Mr. Lozano may have been the one assigned to kill him. In the court's view, those circumstances not only were "substan- tially similar" to those in Arizona v. Fulminate, 499 U.S. 279, 285-288 (1991), where this Court found a custodial statement in- voluntary, but actually "present[ed] a stronger case of coercion* * * because * * * Mr. Lozano fabricated the threat to [petition- er]." Pet. App. A1101. The court therefore concluded that peti- tioner's statements to Lozano "were coerced by a credible threat of violence." Ibid. The court of appeals held that admission of petitioner's in- voluntary statements to Lozano was harmless beyond a reasonable doubt at the guilt stage of his trial, because there was overwhelm- ing evidence, including "[e]vidence of fingerprints and the testi- mony of several witnesses, " establishing petitioner's "pivotal role in both the planning and execution of the murder, as well as the payment he received." Pet. App. A1101-A1102. The court concluded, however, that the admission of petitioner's statements to Lozano was not harmless at the penalty stage. In the court's view, peti- tioner's "statements regarding the paltry sum he received for the murder and his offer to go back and do the job himself were the only evidence of his unrepentance." Id. at A1102. Unable to "say beyond a reasonable doubt that these remarks may not have influ- enced the jury in [its] findings of aggravating and mitigating factors, as well as affecting the weighing process itself, " the ---------------------------------------- Page Break ---------------------------------------- 10 court of appeals concluded that petitioner's professed "willingness to murder again * * * may have had a significant impact on the penalty phase decision by the jury." Ibid. 5 5. The court of appeals unanimously denied petitioner's peti- tion for panel rehearing. The court denied the government's peti- tion for rehearing, with suggestion for rehearing en banc, by a six-to-six vote. Pet. App. B1137-B1146. Writing on behalf of the panel majority, Judge Kelly stated that the case involved "a classic Fulminate situation" in which there was a "credible threat [of actual violence]," as "there [wa]s no dispute * * * that the government agent [i.e., the informant Lozano] lied to a drug- dependent defendant, telling him that he would be killed unless he told the informant what 'really happened.'" Pet. App . B1139 . Judge Kelly further rejected as "tortured" the government's argument that Fulminate turned on "the imminenc[e] of the threat of physical injury and the lack of means to avoid physical harm." Ibid. (quoting Petition of the United States for Rehearing at 14). In any event, Judge Kelly opined that "there was a threat of imme- diate physical injury in this case," since petitioner "was fright- ened that the government agent [Lozano] was about to kill him during the very car ride in which he confessed." Ibid. ___________________(footnotes) 5 The court of appeals also set aside petitioner's death sentence because, in the court of appeals' view, the trial court erroneously "submitt[ed] duplicative and cumulative aggravating factors to the jury." Pet. App. A111. The government's petition for rehearing, with suggestion for rehearing en banc on that issuer was denied. Pet. App. B1139. ---------------------------------------- Page Break ---------------------------------------- 11 Judge Anderson a member of the panel majority -- authored a dissent from the denial of rehearing and rehearing en banc in which Judges Tacha and Brorby joined. Judge Anderson noted that petitioner had failed to preserve his coercion claim in the dis- trict court, since he "never cited Fulminate, the case upon which he now relies exclusively, nor did he ever argue that the involun- tariness [of his admissions] stemmed from Mr. Lozano's statements." Pet. App . B1145. Judge Anderson also stated that the tape recordings of the conversations between petitioner and Lozano "explain[ed] why the issue of coercion was never raised [in the district court]: the tapes simply fail to support the argument that [petitioner's] confession was coerced." Pet. App. Bl145- B1146. ARGUMENT Petitioner contends that different majorities of the Court en- dorsed conflicting standards of harmless-error review in Arizona v. Fulminate, 499 U.S. 279 (1991) , and that review is warranted in this case because the court of appeals mistakenly applied a formu- lation that focused exclusively on the "overwhelming" nature of the properly admitted evidence of guilt, rather than on whether the erroneously admitted evidence contributed to the verdict. Pet. 13- 18. That contention does not warrant review. First, petitioner's statements at issue in this case were not involuntary under Fulminate. Second, assuming that they were involuntary, the court of appeals correctly applied the settled harmless constitutional error rule derived from Chapman v. California, 386 U.S. 18 (1967) , ---------------------------------------- Page Break ---------------------------------------- 12 consistent with this Court's decision in Fulminate. Petitioner's factbound disagreement with the court of appeals' conclusion under that standard warrants no further review. 1. In Fulminate, a prison informant masquerading as an organized crime figure offered to protect Fulminate from mistreatment by other prisoners if Fulminate told the informant the truth about the murder of his stepdaughter. Fulminante confessed to the crime. Although judging the question to be "a close one," this Court accepted the state court's finding that Fulminate confessed because of "a credible threat of physical violence." 499 U.S. at 287-288. Likening the circumstances in Fulminate to those in Payne v. Arkansas, 356 U.S. 560 (1958), in which a police officer offered to protect a prisoner from an angry mob if he confessed, the Court reasoned that it was similarly "fear of physical violence, absent protection from his friend [the infor- mant] , which motivated Fulminate to confess." Id. at 288. Contrary to the court of appeals' holding, petitioner's inculpatory statements to Lozano were not involuntary under Fulminate. As Fulminante's reliance on Payne indicates, the decisive factors in this Court's conclusion that Fulminante's custodial statement was involuntary were the imminence of the physical injury that was threatened and the inmate's lack of ready means to avoid that injury. Thus, Payne and Fulminate are best read as applying to the subject of confessions an understanding of coercion that the law readily recognizes in other contexts. See United States v. Bailey, 444 Us. 394, 409-411 (1980) (duress ---------------------------------------- Page Break ---------------------------------------- 13 defense, based on coercive threats emanating from third persons, unavailable unless "given the imminence of the threat, [violation of the law] was [the defendant's] only reasonable alternative") . Those key factors -- a threat of imminent harm coupled with a lack of reasonable alternatives -- are absent here. The court of appeals did not find that Lozano threatened to harm petitioner; it found only that Lozano related that then-absent members of the conspiracy's hierarchy had placed a contract on petitioner's life. Moreover, petitioner had a number of avenues available to him to escape the risk of future harm (e.g, flight or a deal with the authorities) that were unavailable to prisoners in Payne and Fulminante. In such circumstances, Fulminate does not support, much less compel, a finding of coercion. The facts of this case would not support a finding of coercion even if the court of appeals' broad reading of Fulminate were correct. Petitioner testified at the suppression hearing only that his statements were involuntary because he had first willingly ingested heroin purchased with funds borrowed from Lozano; he did not claim that his statements to Lozano had been coerced by any threat of physical harm or that he feared Lozano. See 14 R. 3-9. That claim was raised only for the first time on appeal. And, while petitioner now selectively cites to an extra-record transcription of his taped conversation with Lozano to support the claim that his statements were coerced by a credible threat of physical harm, Judge Anderson correctly noted that the actual tape recording of petitioner's conversation with Lozano "simply fail[s] ---------------------------------------- Page Break ---------------------------------------- 14 to support the argument that [petitioner's] confession was coerced." Pet. App. B1146. 6. In fact, of the five judges of the court of appeals who expressed views on the admissibility of petitioner's statements to Lozano on the merits -- i.e., the three original panel members and the two judges who joined in Judge Anderson's dissent from the denial of rehearing -- three concluded that the tapes convincingly showed that the statements were made voluntarily. Because the record in this case does not establish that petitioner's admissions of participating in a murder were coerced, the judgment of the court of appeals upholding his conviction is correct even without regard to the harmless error issue on which petitioner seeks review in this Court. 2. Even if the harmless error issue were squarely presented, it would not warrant review. The court of appeals applied the proper legal standard in correctly determining that the admission of petitioner's statements during in the guilt phase of petitioner's trial was harmless beyond a reasonable doubt. As this Court recognized in Fulminate, "[t]he admission of an involuntary confession" constitutes "a classic 'trial error' " that may be "quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." 499 U.S. at 307-308, 309. In concluding that harmless error analysis applies to coerced confessions, a majority ___________________(footnotes) 6 We are lodging a copy of the tape recording (Hrg. Ex. 1B- 28) with the Court. ---------------------------------------- Page Break ---------------------------------------- 15 of this Court, speaking through Chief Justice Rehnquist, noted (id. at 310): The evidentiary impact of an involuntary confession, and its effect upon the composition of the record, is indis- tinguishable from that of a confession obtained in vio- lation of the Sixth Amendment -- or evidence seized in violation of the Fourth Amendment -- or of a prosecutor's improper comment on a defendant's silence at trial in violation of the Fifth Amendment. When reviewing the erroneous admission of an involuntary confession, the appellate court * * * simply reviews the remainder of the evidence against the defendant to determine whether the admission of the confession was harmless beyond a reason- able doubt. At the same time, because "an involuntary confession may have a more dramatic effect on the course of a trial that do other trial errors" and in some cases might be "devastating to a defendant," the Chief Justice observed that harmless error analysis would lead to the "conclu[sion] in such a case that * * * admission [of the confession] was not harmless error." Id. at 312. Speaking through Justice White, a different majority of the Court found that the admission of Fulminante's coerced confession was not harmless. That second majority did not, contrary to peti- tioner's suggestion (Pet. 14-16), reject the proposition that a con- fession might be harmless in light of other, untainted evidence that overwhelmingly establishes the accused's guilt. And Justice White agreed with the Chief Justice (499 U.S. at 312 (opinion of Rehnquist, C.J.)) that the admission of a coerced confession (par- ticularly, a "full confession") can have a "profound impact on the jury" (id. at 296 (opinion of White, J.); see also id. at 313 (Kennedy, J., concurring in judgment). In contrast to the dissenters on this point, however, Justice White concluded that ---------------------------------------- Page Break ---------------------------------------- 16 Fulminante's confession had that profound an impact, and thus that it had impermissible contributed to the verdict, because of his "quite different evaluation of the evidence" admitted at trial. Id. at 297. Although the Court in Fulminate was sharply divided on the effect that the admission of Fulminante's confession may have had on the jury in light of the other, untainted evidence of his guilt, neither of the separate majorities in Fulminate de- parted from the oft-recognized principle that a constitutional error in exposing the jury to improper comment or evidence may be harmless in light of other compelling and overwhelming evidence of the accused's guilt. See United States v. Hasting, 461 U.S. 499, 510-512 (1983) (comment on defendant's failure to testify harmless beyond a reasonable doubt in light of "overwhelming evidence" that made "a more compelling case of guilt difficult to imagine"); Brown v. United States, 411 U.S. 223, 231 (1973) (Bruton violation harm- less beyond a reasonable doubt where "testimony erroneously admit- ted was merely cumulative of other overwhelming and largely uncon- troverted evidence") ; Milton v. Wainwright, 407 Us. 371, 373-373 (1972) (Massiah violation harmless beyond reasonable doubt where "[t]he jury * * * was presented with overwhelming evidence of [the defendant's] guilty, including no less than three full confessions that were made by [the defendant] before indictment") ; Harrington v. California, 395 U.S. 250, 254 (1969) (Bruton violation harmless beyond a reasonable doubt where codefendant's erroneously admitted statements were cumulative and direct evidence of guilty was "over- whelming"). See also Delaware v. Van Arsdall, 475 U.S. 673, 684 ---------------------------------------- Page Break ---------------------------------------- 17 (1986) (in undertaking harmless error analysis, reviewing courts must, "of course, [assess] the overall strength of the prosecu- tion's case") . Petitioner asserts (Pet. 16) that the court of appeals failed to assess whether petitioner's erroneously admitted statements con- tributed to his conviction. The error in that claim is apparent from the court's analysis of the effect of petitioner's involuntary statements during the guilt and the penalty phases of his bifur- cated trial. In the guilt phase, the court found that "[t]he coerced statements mainly pertained to [petitioner's] actions in Oklahoma" that were otherwise established by "tremendous amounts" of independent evidence (Pet. App. A1101). In the penalty phase, in contrast, the court of appeals found that it "c[ould] not say beyond a reasonable doubt that these remarks [i.e., petitioner's statements to Lozano] may not have influenced the jury" during its capital deliberations. 7. Id. at A1102. Since the court articu- lated the precise harmless constitutional error standard urged by petitioner in finding petitioner's involuntary statements may have contributed to the jury's recommendation of a capital sentence, it is appropriate to presume that the court of appeals applied the same, not a less rigorous standard, in finding that the admission ___________________(footnotes) 7 The differing conclusions flowed largely from the fact that, at the sentencing phase, the court believed that petitioner's willingness to kill for a small sum of money and to go back to Oklahoma to kill again was particularly probative on his lack of remorse - an issue relevant to the penalty stage but not to the guilt stage. See Pet. App. A1102. ---------------------------------------- Page Break ---------------------------------------- 18 of the same statements at the guilt phase of petitioner's trial was harmless beyond a reasonable doubt. There is no greater force to petitioner's contention (Pet. 16- 17) that the courts of appeals are divided on the proper analysis of whether constitutional error is harmless. United States v. Harrison, 34 F.3d 886 (9th Cir. 1994), upon which petitioner prin- cipally relies, stands for the unexceptional proposition that, in assessing the effect of the constitutionally erroneous admission of evidence, reviewing courts must assess whether the improperly ad- mitted evidence contributed to the verdict, and not merely whether there was sufficient properly admitted evidence to sustain a con- viction. Id. at 892-893. As we have shown above, the court below did not adopt the kind of sufficiency-of-the-evidence approach that was found improper in Harrison; rather, the court below correctly analyzed petitioner's statements to Lozano to determine whether they contributed to the jury's verdict at the guilt phase. The court also assessed the probative character of the evidence that was properly admitted against petitioner, since the overwhelming or cumulative character of that evidence would obviously tend to establish that the admission of three of petitioner's statements to Lozano did not contribute to the guilt-phase verdict. Nothing in Harrison is inconsistent with that approach. Nor do the decisions in Harrison, United States v. Quiroz, 13 F.3d 505, 512-514 (1993), on reh'g, 22 F.3d 489 (2d Cir. 1994), or United States v. Walton, 10 F.3d 1024, 1032-1033 (3d Cir. 1993), suggest that reviewing courts are precluded from giving dispositive ---------------------------------------- Page Break ---------------------------------------- 19 effect to the overwhelming weight of the properly admitted evidence in applying the harmless constitutional error standard. As the Ninth Circuit later stated in United States v. Polanco, 93 F.3d 555, 562 (9th Cir.), cert. denied, 117 S. Ct. 405 (1996), the harmless constitutional error standard "requires [courts] to judge the magnitude of the error in light of the evidence as a whole to determine the degree of prejudice to the defendant resulting from the error" (emphasis added). That the court below reached a dif- ferent conclusion as to the effect of the constitutional error here than did the courts in Harrison, Quiroz, and Walton does not indi- cate that the court below applied a different or an improper legal analysis. Rather, it reflects only that the magnitude of a consti- tutional error and the "evidence as a whole" will necessarily vary from case to case. See Harrison, 34 F.3d at 893 (involuntary statement "played a significant role in the government's case") ; Quiroz, 13 F.3d at 513 (government's evidence "hardly overwhelm- ing") ; Walton, 10 F.3d at 1033 (government's evidence "circum- stantial" and "relatively scant"). Indeed, the same circuits that petitioner claims would disagree with the court below have not hesitated to find a constitutional error harmless beyond a reason- able doubt where, as here, the courts have concluded that, on the particular facts, the magnitude of the error was negligible and the evidence of guilt was overwhelming. See, e.g, United States v. Polanco, 93 F.3d at 562 (Miranda violation harmless in light of "substantial, independent, and credible evidence" of guilt); United States v. Baiter, 91 F.3d 427, 440 (3d Cir.) ("overwhelming ---------------------------------------- Page Break ---------------------------------------- 20 evidence admitted against [accused] at trial") , cert. denied, 117 S. Ct. 518 (1996); United States v. Hurtado, 47 F.3d 577, 582 (2d Cir. ) (" [m]ost significantly, the evidence adduced at trial overwhelmingly demonstrated [the defendant's] guilt"), cert. denied, 116 S. Ct 266 (1995). 3. Petitioner's final claim -- that the court of appeals erred in its assessment of the record in this case (Pet. 19-22) -- is both factbound and wrong. It warrants no further review. The court of appeals correctly concluded that admission of petitioner's involuntary statements to Lozano was harmless beyond a reasonable doubt at the guilt phase of his trial. As the court of appeals noted, "the record was replete with a tremendous amount of other evidence" that unequivocally demonstrated petitioner's "pivotal role in both the planning and execution of the murder, as well as to the payment received." Pet. App. A1101-A1102. In par- ticular, fingerprint evidence placed petitioner at the lake house, along with other conspirators who were either members of the hit squad or higher-ups in the Arvizu organization. See 35 R. 9-33 Wiscowiche testified as to petitioner's role in formulating the ambush plan, to the extensive preparations that he and petitioner undertook in advance of the murder, and to his payment of 2,000 to petitioner on the morning of the murder in anticipation of its com- pletion. Mendoza not only testified as to petitioner's recruitment for the hit squad in California and to petitioner's role in planning and preparing for the murder, but provided an eye-witness account of petitioner's role in delivering the victim to the ambush ---------------------------------------- Page Break ---------------------------------------- 21 site and to the victim's execution by one of the "pistoleros" while petitioner fled from the scene. The intended victim Rogers, al- though unable to make a positive identification of petitioner, testified that petitioner looked like the person who visited his used car lot and accompanied Collins on the fateful test drive. 33 R. 45-48, 84. Finally, Lozano related inculpatory statements that petitioner made in the months immediately following the murder the voluntariness of which is not in dispute -- regarding petition- er's participation in the murder and his receipt of money and a van as payment. See note 2, supra. In short, other than petitioner's professed willingness to return to Oklahoma in order to kill Rogers personally, there was nothing in the statement that the court below ruled inadmissible that was not cumulative of other properly admitted evidence that overwhelmingly established petitioner's guilt on the various counts of conviction, including his intentional participation in a CCE- related murder. And, while the court below believed that petition- er's professed willingness to kill in the future constituted "the only evidence of his unrepentance" (Pet. App. A1102) and was uniquely probative of the found non-statutory aggravating factor pertaining to future dangerousness (see Docket Entry 520, p. 3), neither petitioner's unrepentance nor his future dangerousness was an element of any of the offenses of which he was convicted. ---------------------------------------- Page Break ---------------------------------------- 22 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General ROBERT J. ERICKSON Attorney APRIL 1997