In the Supreme Court of the United States
JOHN J. FELLERS, PETITIONER
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
PAUL D. CLEMENT
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
Department of Justice
Washington, D.C. 20530-0001
1. Whether statements that petitioner made after receiving and voluntarily waiving his Miranda rights should have been suppressed under the Sixth Amendment as the fruits of earlier unwarned and uncounseled post-indictment questioning.
2. Whether the court of appeals erred by concluding that any error in the admission of petitioner's state ments was harmless beyond a reasonable doubt.
In the Supreme Court of the United States
JOHN J. FELLERS, PETITIONER
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 397 F.3d 1090. A prior opinion of the court of appeals (Pet. App. 23a-30a) is reported at 285 F.3d 721. The order of the district court (Pet. App. 31a- 36a) and the report and recommendation of the magis trate judge (Pet. App. 37a-38a) are unreported.
The judgment of the court of appeals was entered on February 15, 2005. The petition for a writ of certiorari was filed on May 16, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Following a jury trial in the United States District Court for the District of Nebraska, petitioner was con victed of conspiring to distribute methamphetamine and to possess methamphetamine with the intent to distri bute it, in violation of 21 U.S.C. 846. The district court sentenced petitioner to 151 months of imprisonment, to be followed by a four-year term of supervised release. The court of appeals affirmed. Pet. App. 23a-30a. This Court reversed and remanded. Id. at 17a-22a. On re mand, the court of appeals again affirmed petitioner's conviction, but remanded his case for resentencing in accordance with United States v. Booker, 125 S. Ct. 738 (2005). Pet. App. 1a-15a.1
1. On February 24, 2000, after a federal grand jury indicted petitioner for conspiring to distribute and pos sess with intent to distribute methamphetamine, two police officers went to petitioner's home in Lincoln, Ne braska, to arrest him. One of the officers told petitioner that he was there to discuss petitioner's involvement in methamphetamine distribution. The officer told peti tioner that he had a federal warrant for petitioner's ar rest and that a grand jury had indicted him for conspir acy to distribute methamphetamine with "persons such as Kathi Kuenning, Pat Sardeson, Thomas Geffs, and Mark Farfalla." Pet. App. 33a; id. at 18a. As petitioner sat on his sofa sipping from a mug, see id. at 32a; Sup pression Hearing Tr. 11, 43-44, petitioner implicitly ac knowledged that he knew the four people the officers named by indicating that at the time he had associated with them, he had been going through a variety of finan cial and personal problems, among them methamphet amine use. He did not, however, link them with drug distribution. See Pet. App. 33a; see also id. at 18a; Sup pression Hearing Tr. 84. The officers then arrested pe titioner and transported him to the county jail. Pet. App. 1a, 18a. During the approximately 20-minute ride, the officers asked petitioner no questions. See id. at 33a, 41a.
At the jail, the officers advised petitioner of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), including his right to consult with a lawyer. Petitioner orally waived his rights and signed a written waiver-of- rights form. Petitioner then explicitly acknowledged that he knew Kuenning, Sardeson, Geffs, and Farfalla, admitted that he also had associated with other individu als whom he had not previously identified (Val Green, Leon Thompson and Ernie Lawrence), and said that he had purchased methamphetamine from Kuenning and Sardeson for personal use. See Pet. App. 2a, 42a. Peti tioner also admitted that he had loaned money to Kuenning, even though he suspected that the money might have been used for drug transactions. See id. at 2a, 18a. Petitioner repeatedly denied that he had ever sold methamphetamine and denied that he had pur chased methamphetamine from Sardeson or Kuenning in quantities sufficient for resale. See ibid.
2. Before trial, petitioner moved to suppress both the statements he had made at his home, in the absence of Miranda warnings, and his subsequent statements made at the jail. The district court granted the suppres sion motion as to the statements that petitioner made at his home, adopting the findings of the magistrate judge that petitioner was in custody at the time of the state ments at his home and that the statements were made in response to remarks of the officers which were "implic itly questions." Pet. App. 31a; see id. at 32a, 35a. The district court declined, however, to suppress petitioner's subsequent statements at the jail. The court reasoned that because petitioner voluntarily made the jailhouse statements after waiving his Miranda rights, those statements were admissible under Oregon v. Elstad, 470 U.S. 298 (1985), which held that, although Miranda re quires that an unwarned statement be suppressed, the admissibility of any subsequent statement made after administration of warnings turns solely on whether it is knowingly and voluntarily made. Pet. App. 33a-35a (cit ing Elstad, 470 U.S. at 309). The district court con cluded that "the unwarned statements of [petitioner] made at his home were not coerced so as to taint his sub sequent voluntary statement made after he was given the Miranda warnings." Id. at 35a.
Statements from petitioner's jailhouse interview were admitted into evidence at trial, along with testi mony from seven cooperating witnesses who testified about methamphetamine transactions involving peti tioner. See Pet. App. 13a; Gov't Supp. C.A. Br. 16-19. The jury found petitioner guilty of conspiring to possess and distribute methamphetamine. Pet. App. 2a.
3. The court of appeals affirmed. Pet. App. 23a-30a. Petitioner contended that the statements at his home were obtained in violation of his Sixth Amendment right to counsel under Patterson v. Illinois, 487 U.S. 285 (1988), and that his jailhouse statements should have been suppressed as fruits of the Sixth Amendment viola tion. The court rejected that claim, finding Patterson "not applicable" because "the officers did not interro gate [petitioner] at his home." Pet. App. 26a. The court also concluded that petitioner's jailhouse statements were properly admitted under Elstad. The court found that the record "amply support[ed]" the district court's finding that petitioner's jailhouse statements were vol untary and thus admissible. Id. at 25a-26a. In a concur ring opinion, Judge Riley expressed his view that, dur ing the arrest at petitioner's home, the police officers violated petitioner's Sixth Amendment rights by "delib erately elicit[ing]" incriminating information from him without counsel present, but that the jailhouse state ments were admissible under the rationale of Elstad. Id. at 30a.
4. This Court reversed, holding that the officers "deliberately elicited" the statements that petitioner made at his home in violation of "the Sixth Amendment standards established in Massiah [v. United States, 377 U.S. 201 (1964)] and its progeny." Pet. App. 21a. The Court stated that the court of appeals had erred in hold ing that the absence of "interrogation" foreclosed peti tioner's Sixth Amendment claim that the jailhouse state ments should have been suppressed as fruits of the statements taken from petitioner at his home, because the proper Sixth Amendment test turns on deliberate elicitation, which is not the same as interrogation. Ibid. The Court remanded for the court of appeals to determine whether petitioner's jailhouse statements should be suppressed as fruits of the earlier statement and to address "whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards." Id. at 21a-22a.
5. On remand, the court of appeals again affirmed petitioner's conviction. Pet. App. 1a-15a. The court held that the rationale in Elstad applies in the Sixth Amend ment context, reasoning that "[b]oth the deterrence of future Sixth Amendment violations and the vindication of the Amendment's right-to-counsel guarantee have been effectuated through the exclusion of [petitioner's] initial statements." Id. at 7a. "In the case of warned confessions that follow unwarned, uncounseled state ments," the court stated, "the suspect's knowing, intelli gent, and voluntary choice to waive his right to counsel constitutes an intervening act of free will that breaks the causal link between the prior uncounseled state ments (which have already been suppressed) and the subsequent statements." Id. at 8a. The court noted the "similarities between the Sixth Amendment context at issue in [petitioner's] case and the Fifth Amendment context at issue in Elstad," explaining that "there is no significant difference between a lawyer's usefulness to a suspect during pre-indictment custodial interrogation and his usefulness at post-indictment questioning." Id. at 8a-9a (citing Patterson, 487 U.S. at 298-299).2
The court also held that even if petitioner's jailhouse statements should have been suppressed, "any error in admitting those statements at trial was harmless beyond a reasonable doubt." Pet. App. 12a. The court found that petitioner's admissions that he knew some of the co- conspirators and had used methamphetamine with them "were either corroborated by other government wit nesses or were immaterial to the case." Id. at 13a. In addition, the court reasoned, the testimony of those wit nesses "went largely unchallenged." Ibid. The court also noted that petitioner used his statements to the police to his advantage at trial by emphasizing his "ve hement deni[al] [of] selling or distributing metham phetamine" during his jailhouse statement and arguing it was proof of his innocence "because a police officer who was trained to elicit the truth from suspects could not elicit an admission of distribution from [petitioner]." Ibid. Accordingly, the court concluded, "the introduc tion of [petitioner's] jailhouse admissions at worst had no effect on the verdict and at best militated against a conviction for conspiracy to possess methamphetamine with intent to distribute." Ibid. Finally, the court noted that in addition to petitioner's statements, the govern ment presented eight witnesses who testified about peti tioner's possession and distribution of methamphet amine. Although the individual witnesses' credibility could be questioned because of their plea bargains, crim inal histories, and drug use, the court concluded that the government's evidence proved that petitioner "conspired to possess methamphetamine with intent to distribute." Id. at 13a-14a.
Petitioner contends that his jailhouse statements should have been suppressed as the fruits of an earlier violation of Sixth Amendment standards and that the court of appeals erroneously relied on Oregon v. Elstad, 470 U.S. 298 (1988), in holding otherwise. The court of appeals' decision rejecting petitioner's claim is correct and does not conflict with any decision of this Court or of any other court of appeals; indeed, the United States is unaware of any other court of appeals decision that even has addressed whether the rationale of Elstad ap plies in the Sixth Amendment context, cf. Pet. 14. Even if Elstad did not apply, petitioner still could not estab lish that his statements should be suppressed as fruits. And, finally, as the court of appeals concluded, any error in the admission of petitioner's jailhouse statements was harmless beyond a reasonable doubt. For all of those reasons, further review is not warranted.
1. Petitioner contends (Pet. 11-23) that this Court should grant review to make clear that the rationale of Oregon v. Elstad, supra, does not apply in the Sixth Amendment context, and that instead, the broad derivative-evidence exclusion developed for completed Fourth Amendment violations should be applied under such circumstances. That claim lacks merit.
a. In Oregon v. Elstad, this Court rejected the claim under the Fifth Amendment that a suspect's giving of an initial voluntary statement without Miranda warnings tainted his later voluntary statement made after he re ceived warnings and waived his rights. Although the period between the two statements was short and there was no change of personnel or significant intervening circumstance, this Court concluded that, "absent delib erately coercive or improper tactics in obtaining the ini tial statement," a "subsequent administration of Miranda warnings to a suspect who has given a volun tary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." 470 U.S. at 314. The Court ex plained that, in the absence of police coercion, "the dic tates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied * * * by barring use of the unwarned state ment in the case in chief. No further purpose is served by imputing 'taint' to subsequent statements obtained pursuant to a voluntary and knowing waiver." Id. at 318.
As the court of appeals concluded, the rationale of Elstad is equally applicable in this context. In Elstad, the Court reasoned that "[o]nce warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities." 470 U.S. at 308. The same is true with respect to an indicted defen dant's decision whether to deal with questioning by the police "with the aid of counsel, or go it alone." Patterson v. Illinois, 487 U.S. 285, 291 (1988). Because the assis tance of counsel serves a similar role during pretrial questioning by the police regardless of whether the right to counsel arises under the Fifth or Sixth Amend ment, this Court has held that advising an accused of his Miranda rights is generally sufficient to permit a know ing and intelligent waiver of the Sixth Amendment right to counsel during police questioning. Id. at 298-299 & n.12. The Miranda warnings convey to the accused at the time of questioning "the sum and substance of the rights that the Sixth Amendment provide[s]." Id. at 293. The warnings thus "suffice * * * to let [the ac cused] know what a lawyer could 'do for him' during the postindictment questioning." Id. at 294. Once an in dicted defendant has received that information through Miranda warnings, it neutralizes the earlier police error in conducting unwarned questioning and can render the later statement admissible.
b. Petitioner contends (Pet. 16-19) that the rationale of Elstad is inapplicable here because counsel serves a different role in the Sixth Amendment context: "the as sistance of counsel ensures 'equality in [the] adversary confrontation' by protecting the accused from his own 'lack of familiarity with the law,'" and by "advis[ing] the defendant whether it is in his best interest, in light of the charges against him, to speak or remain silent." Pet. 19 (quoting United States v. Ash, 413 U.S. 300, 317 (1973)). Also, petitioner claims (ibid.), counsel serves a "broader Sixth Amendment interest in those circum stances where government officers have previously * * * elicited incriminating information from a defen dant," because counsel could "inform the defendant * * * of the legal rules concerning the admissibility of the prior * * * statement." Pet. 17. But as the Court held in Patterson, the Miranda rights "suffice * * * to let [the accused] know what a lawyer could 'do for him' during the postindictment questioning." 487 U.S. at 294. Even if the warnings themselves do not provide all the legal advice an attorney could, they equip a sus pect to make the decision whether to speak with police immediately without the assistance of counsel, or to wait for counsel to advise him on those matters before again speaking to police. See id. at 291.
c. Petitioner also contends (Pet. 14-16) that the ra tionale of Elstad is premised on the fact that unwarned interrogation is only a violation of the prophylactic Miranda rule rather than the Fifth Amendment itself. He therefore argues that it does not apply here because the deliberate elicitation of a response from an accused constitutes a completed violation of the Sixth Amend ment. The Court's opinion in this case pointedly avoided stating that the officers' deliberate elicitation at peti tioner's home violated the Sixth Amendment, instead stating only that their actions "violate[d] the Sixth Amendment standards established in Massiah [v. United States, 377 U.S. 201 (1964)] * * * and its prog eny." Pet. App. 21a (emphasis added); id. at 22a (dis cussing "police questioning in violation of Sixth Amend ment standards") (emphasis added). See generally Michigan v. Harvey, 494 U.S. 344, 363 (1990) (Stevens, J., dissenting) ("It is * * * the use of the evidence for trial, not the method of its collection prior to trial, that is the gravamen of the Sixth Amendment claim."); ac cord Weatherford v. Bursey, 429 U.S. 545, 558 (1977).
But even if there were a completed Sixth Amend ment violation at the time of unwarned questioning, Elstad's rationale would still apply in this context. There is no question that this Court has recognized a limited "fruits" doctrine as applied to certain forms of derivative evidence after the denial of counsel at a criti cal stage in the prosecution. See United States v. Wade, 388 U.S. 218 (1967); Nix v. Williams, 467 U.S. 431 (1984). As discussed below, however, neither case in volved the accused's own subsequent statements. When such statements are involved, the critical factor in deter mining whether "fruits" analysis applies is that the in fringement of Sixth Amendment standards in conduct ing unwarned deliberate elicitation is closely analogous to the omission of Miranda warnings in Elstad. In both cases, there is a failure to ensure that the suspect could make an intelligent choice whether to waive his rights- and in both cases, the provision of that information breaks any link to the antecedent unwarned questioning.
Relying on Wade and Nix, petitioner contends (Pet. 12-13) that this Court has already held that "the tradi tional derivative-evidence rule" in the case of Fourth Amendment violations applies in determining whether a defendant's voluntary, warned statement is the fruit of a prior Sixth Amendment violation. Those cases-both of which predate Elstad-do not govern this context. In Wade, the Court only held that a post-indictment lineup was a critical stage under the Sixth Amendment and remanded for the lower courts to determine whether a witness's in-court identification of the defendant was tainted by an earlier post-indictment lineup conducted without the presence of counsel. 388 U.S. at 239-243. The Court's remedy directly protected the adversary process at trial, by requiring examination of whether the later in-court identification was the product of the ear lier denial of counsel. In Nix, the Court rejected a defen dant's claim that physical evidence (of the location and condition of a murder victim's body) should not have been admitted at his trial because it was the fruit of offi cers' earlier elicitation of incriminating statements, in violation of his right to counsel. The Court noted that it had applied the "fruit of the poisonous tree" doctrine to Sixth Amendment violations, 467 U.S. at 442 (citing Wade), but held that the evidence was properly admitted under the inevitable-discovery exception to the ex clusionary rule because the victim's body would inevita bly have been discovered. Id. at 440-450.
In this case, unlike Wade and Nix, the evidence claimed to be the fruit of a prior Sixth Amendment viola tion is a second statement voluntarily made by a defen dant after receiving Miranda warnings and knowingly and intelligently waiving his right to counsel. In this situation, the defendant's decision to speak to the offi cers without counsel is an independent act of free will that breaks the causal link to the prior illegality. Elstad thus supplies the appropriate framework for analysis and ensures that a proper balance is struck between protecting the defendant's right to counsel and honoring his free choice to waive it.3
This does not, as petitioner contends, make Miranda warnings a "cure-all" (Pet. 22) or "provide the police with a road map to eviscerate the right[s] of criminal defendants," Pet. 11. The argument that police might find in the decision below a "road map" to secure admis sible statements by deliberately violating Sixth Amend ment standards ignores this Court's analysis in Mis souri v. Seibert, 124 U.S. 2601 (2004), which suggests that a later set of Miranda warnings would not be effec tive if officers had purposely conducted unwarned ques tioning to undermine later warnings. Id. at 2610-2613 (plurality opinion) (requiring objectively effective warn ings and distinguishing Elstad); id. at 2614-2616 (Ken nedy, J., concurring in the judgment) (curative measures required, beyond those in Elstad, when officers deliber ately use a two-step technique to undermine Miranda warnings).4
Petitioner also errs in claiming (Pet. 23) that extend ing the Elstad rationale to the Sixth Amendment context would mean that "nothing at all is changed by the fact that the government has violated" Sixth Amendment standards. A later set of warnings does nothing to per mit the admission of the initial unwarned and un counseled statement. And when the defendant gives a second statement after knowingly and intelligently waiv ing counsel, the government must still establish that the waiver of rights was voluntary. Patterson, 487 U.S. at 292 n.4. Badgering or misleading conduct by authorities may preclude such a showing. Harvey, 494 U.S. at 353- 354. Where investigators obtain the unwarned initial statement through coercion or the application of exces sive psychological pressure, the defendant may not be able to make a knowing and voluntary decision to speak because the "continuing effect of the coercive practices" (Lyons v. Oklahoma, 322 U.S. 596, 602 (1944)) may carry over to the second encounter despite the warnings. Cf. Elstad, 470 U.S. at 310 (requiring a break in the chain of events "[w]hen a prior statement is actually coerced"). There is therefore no need to apply a broad fruits doc trine in this context to deter police misconduct.
2. Petitioner does not contend that the decision be low conflicts with any decision of another court of ap peals. Indeed, no other court of appeals has squarely addressed whether Elstad's rationale applies to the ad missibility of statements made by an indicted defendant who, after police "deliberately elicit" statements from him without first informing him of his rights, see Massiah, 377 U.S. at 206, is then informed of his Mi randa rights, voluntarily waives them, and makes fur ther statements. The court of appeals decisions peti tioner cites (Pet. 13) are inapposite.5 The absence of any "conflict of decision in the federal system" on this issue strongly counsels in favor of "the issue receiv[ing] fur ther study" in the courts of appeals "before it is ad dressed by this Court." McCray v. New York, 461 U.S. 961, 962-963 (1983) (Stevens, J., respecting the denial of certiorari).
3. This Court's review is particularly unwarranted because petitioner's jailhouse statements would not be subject to suppression even under the fruits analysis that he advocates. In the Fourth Amendment context, to determine whether a subsequent statement was suffi ciently independent to dissipate the taint of the illegal search or seizure, the Court has examined the "temporal proximity" of the constitutional violation to the discov ery of the derivative evidence in question, "the presence of intervening circumstances, and * * * the purpose and flagrancy of the official misconduct," to determine whether the confession was "an act of free will [suffi cient] to purge the primary taint." Kaupp v. Texas, 538 U.S. 626, 632, 633 (2003) (per curiam) (quoting Brown v. Illinois, 422 U.S. 590, 603-604 (1975), and Wong Sun v. United States, 371 U.S. 471, 486 (1963)). Under that standard, petitioner's jailhouse statement was not the fruit either of police misconduct or of his earlier state ment, but was an independent and informed act of free will.
Although petitioner emphasizes (Pet. 21) that "only a half-hour" passed between petitioner's statement at his house and his interview at the jail, this Court has made clear that "relatively short" periods are sufficient to dispel the taint of illegality if, as here, the encounter with police was not "under the strictest of custodial con ditions." Rawlings v. Kentucky, 448 U.S. 98, 107, 108 (1980) ("relatively short" 45-minute period between ille gal detention and warned statement was sufficient to purge taint where suspects were detained "quietly in the living room" and police were courteous). Moreover, the officers' brief statement to petitioner at his house that they had come to discuss his involvement in distribution of methamphetamine and his association with co-con spirators did not "rise to the level of conscious or fla grant misconduct requiring prophylactic exclusion" of petitioner's subsequent statements. Id. at 110. Nothing the officers did at petitioner's house could have influ enced petitioner's later decision, after receiving Mi randa warnings, to waive counsel and answer questions. The officers, who were dressed in plain clothes and were not carrying weapons visibly, Suppression Hearing Tr. 8, 62, 66, did not offer petitioner any promises or induce ments, did not apply any pressure, and did not even seek to persuade him of the wisdom of cooperating. In con trast to the cases on which petitioner relies (Pet. 19-22), nothing about the police conduct here suggests that the officers intended to overpower the defendant's will to resist. See Kaupp, 538 U.S. at 631-632 (warrantless arrest of a minor at 3 a.m., followed by his "removal from [the] house in handcuffs on a January night with nothing on but underwear for a trip to a crime scene"); Brown, 422 U.S. at 605 (defendant arrested at gunpoint without probable cause, ordered to stand against wall, and subjected to search that was apparently "calculated to cause surprise, fright, and confusion").
In addition, as the court of appeals found, see Pet. App. 11a-12a, it is clear that the officers in this case made no effort to exploit petitioner's initial statement in order to obtain the second. There is no indication that the officers even mentioned the first statement to peti tioner during the jailhouse interview, or reminded him of particular statements he had made, let alone at tempted to convince petitioner that he had nothing more to lose by providing a full account of his actions. Id. at 7a, 11a. To the contrary, the officers gave petitioner full Miranda warnings, informing him that he did not have to speak with the officers without counsel present, and confirmed that he understood the warning. And the sec ond statement did not merely repeat the minimal ac knowledgment in his initial statement that he knew the persons mentioned in the indictment and used metham phetamine in the past (without linking the two, see Pet. App. 33a; see also id. at 18a; Suppression Hearing Tr. 84). Rather, it covered new subjects that petitioner could not have believed he had already revealed to po lice, such as that he had bought drugs from some of the persons named by the officers, had loaned money to Kuenning that he suspected she had used for drugs, and knew other persons not named in the indictment. See Pet. App. 11a (second statement overlapped only "to a small degree with his initial unwarned * * * admis sions"). Petitioner's valid waiver of his right to counsel makes it unlikely that petitioner was induced to speak by the knowledge that he had already made a statement to the officers. See Rawlings, 448 U.S. at 107 (fact that defendant "received Miranda warnings only moments before he made his incriminating statements" is "impor tant, although not dispositive, in determining whether the statements at issue were obtained by exploitation of" a constitutional violation). Based on all of the rele vant factors, petitioner's decision to speak with the offi cers at the jailhouse was "sufficiently an act of free will to purge the primary taint" of the Sixth Amendment violation. Wong Sun, 371 U.S. at 486.
4. Review also is not warranted in this case because the court of appeals correctly ruled that any error in the admission of petitioner's jailhouse statement was harm less beyond a reasonable doubt. Like other constitu tional errors, Sixth Amendment violations are harmless when it "appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict ob tained.'" Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)); see Milton v. Wainwright, 407 U.S. 371, 372-373 (1972) (Massiah violation harmless where "[t]he jury * * * was presented with overwhelming evidence of [the defen dant's] guilt").
a. As the court of appeals noted (Pet. App. 13a), in addition to petitioner's statements to police, at trial "the government presented eight witnesses who detailed the extent of the conspiracy as well as [petitioner's] involve ment in both possession and distribution of methamphet amine"). Petitioner's admissions during the jailhouse interview that he was acquainted with the other conspir ators named in the indictment, that he had purchased small quantities of methamphetamine from individuals the officers identified, and that he had loaned money to Kuenning to pay her bills were largely, if not entirely, cumulative of the other witnesses' testimony, which, as the court of appeals noted, "went largely unchallenged." Ibid.; Gov't Supp. C.A. Br. 16-19. Petitioner contends that the admission of his jailhouse statements could not have been harmless because it corroborated the testi mony of the seven cooperating witnesses, who, he claims, had "severe credibility problems." Pet. 25. But that overlooks the fact that the cooperating witnesses corroborated each other's testimony in important re spects. See, e.g., United States v. Salimonu, 182 F.3d 63, 71-72 (1st Cir. 1999) (concluding that error in admit ting evidence was harmless beyond a reasonable doubt, emphasizing that "[t]he fact that the three co-conspira tors' testimony was detailed and basically consistent * * * was substantial evidence of guilt"); United States v. Valley, 928 F.2d 130, 135 (5th Cir. 1991) (in determin ing that error was harmless beyond a reasonable doubt, noting that testimony of co-conspirators "was consistent and highly detailed"). For example, Kuenning, Geffs, and Sardeson each testified about a trip Kuenning and Geffs made to Grand Island, Nebraska, to buy metham phetamine, and both Sardeson and Geffs confirmed that petitioner had supplied them with $1000 to purchase methamphetamine. See Trial Tr. 197-202, 316-322, 327, 382-386. Both Cotton and Kuenning (who also was called as a defense witness) testified that they went to gether to Tommy Gonzales to purchase methamphet amine, some of which they then supplied to petitioner. Id. at 248-252, 530-531, 537-563. Kuenning and Ernest Lawrence both testified that they traveled to Colorado together to buy methamphetamine and that they stopped by petitioner's house before they left and he gave them money, although their accounts of what Kuenning and petitioner said at his house differed. Id. at 237-241, 287-288, 497-506. Their testimony also was corroborated by physical evidence (for example, tele phone records and personal address books, see id. at 140-145, 224).
Moreover, as the court of appeals noted (Pet. App. 13a), the jailhouse statements supported petitioner's defense theory-i.e., that he was a methamphetamine user but was not involved in distributing the drug-and petitioner's counsel himself relied on the statements in his closing argument, noting that petitioner had stead fastly denied selling methamphetamine, despite being questioned repeatedly by a skilled interviewer who had been trained in interrogation techniques. See ibid.; Gov't Supp. C.A. Br. 19-20. Thus, as the court of appeals correctly concluded, "the introduction of [petitioner's] jailhouse admissions at worst had no effect on the ver dict and at best militated against a conviction for con spiracy to possess methamphetamine with intent to dis tribute." Pet. App. 13a. In any event, the factbound application of settled harmless-error principles does not warrant review by this court. See United States v. Hasting, 461 U.S. 499, 510 (1983) (noting that this Court reviews harmless-error claims "sparingly"); S. Ct. R. 10.
b. Petitioner contends (Pet. 23-25) that review is warranted because the court of appeals "did not apply the Chapman standard" (Pet. 23), and improperly equated harmless error review with sufficiency-of-the- evidence review. That claim is based on the court of ap peals's statement in passing that "the evidence pre sented by the government * * * is sufficient to prove that [petitioner] conspired to possess methamphetamine with intent to distribute," Pet. 24 (quoting Pet. App. 14a) (emphasis omitted), and on the court's citation of a suf ficiency-of-the-evidence case in the course of its discus sion. See ibid. (citing United States v. Angular- Portillo, 334 F.3d 744, 747 (8th Cir. 2003)). That claim lacks merit. Petitioner overlooks that the court recited the correct standard of review and noted that while "a defendant's own confession is 'a particularly potent piece of evidence,' its erroneous introduction is harmless where the other evidence against him is so substantial that it 'assured beyond a reasonable doubt that the jury would have returned a conviction even absent the confes sion.'" Pet. App. 12a (quoting United States v. Santos, 235 F.3d 1105, 1108 (8th Cir. 2000)); accord Hasting, 461 U.S. at 512 (noting strength of evidence against defen dant in determining whether error was harmless beyond a reasonable doubt); Brown v. United States, 411 U.S. 223, 231 (1973) ("The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence.").
In light of the court's recitation of the correct stan dard, the court of appeals' passing reference to "suf ficien[cy]" (Pet. App. 14a) to discuss one established factor in constitutional harmless-error analysis-the strength of the government's case-does not justify con cluding that the court of appeals applied the incorrect standard. That is especially true because the Eighth Circuit (including in opinions written by the author of the decision below) repeatedly has emphasized that "sufficiency of the evidence and harmlessness of an er ror are different questions," United States v. Kenyon, 397 F.3d 1071, 1082 (2005), and that "sufficiency of the evidence alone is not enough to support a finding of harmless error." United States v. Azure, 801 F.2d 336, 341 (1986) (citing United States v. Slader, 791 F.2d 655, 657 n.2 (8th Cir. 1986)); see also United States v. Hazelett, 80 F.3d 280, 283 (1996) ("To say that absent certain inadmissible evidence the jury might have reached a different result is not at all the same thing as saying that without that evidence no jury could lawfully convict."); cf. United States v. Ryan, 153 F.3d 708, 712 (1998) (Wollman, J., for the court) (emphasizing that "a materiality determination [for purposes of Brady v. Maryland, 373 U.S. 83 (1963)] is not a sufficiency of evi dence test"). Further review is not warranted.
The petition for a writ of certiorari should be denied. Respectfully submitted.
PAUL D. CLEMENT
ALICE S. FISHER
Assistant Attorney General
1 On May 2, 2005, the district court sentenced petitioner to a term of 102 months of imprisonment. Pet. 11 n.*.
2 The court also concluded, based on a "multi-factor test derived from" the plurality opinion in Missouri v. Seibert, 124 S. Ct. 2601 (2004), that "the officers' conduct in this case did not vitiate the effec tiveness of the Miranda warnings given to [petitioner]." Pet. App. 11a. The court emphasized that in this case and unlike in Seibert, the statements were separated in time, took place "in a new and distinct setting," and the subject of the statements overlapped only "to a small degree with his initial unwarned * * * admissions." Ibid. In addition, the court found "no evidence that the officers in this case employed * * * a deliberate strategy" to obtain incriminating statements in violation of Miranda, and therefore concluded that "the concerns voiced by Justice Kennedy" in his concurring opinion in Seibert were not impli cated. Id. at 12a (citing Seibert, 124 S. Ct. at 2614 (Kennedy, J., con curring in the judgment)).
3 United States v. Patane, 124 S. Ct. 2620 (2004), which petitioner also cites (Pet. 13), is even less helpful to him. Patane did not involve a Sixth Amendment violation at all, and the plurality opinion merely cited Nix in passing as "discussing the exclusionary rule in the Sixth Amendment context and noting that it applies to 'illegally obtained evidence [and] other incriminating evidence derived from [it].'" 124 S. Ct. at 2629 (quoting Nix, 467 U.S. at 441).
4 As the court of appeals held (Pet. App. 12a), there is nothing in the record here to suggest that the officers employed a deliberate strategy to undermine the effectiveness of the later warnings. See n.2, supra; cf. Seibert, 124 S. Ct. at 2612 n.6 (plurality opinion).
5 None of those cases involved the question whether a defendant's second statement, voluntarily made after receiving Miranda warnings, should be suppressed as the fruit of prior improper questioning. See United States v. Terzado-Madruga, 897 F.2d 1099, 1112-1117 (11th Cir. 1990) (applying "fruit of the poisonous tree" doctrine to testimony of other witnesses derived from Sixth Amendment violation); United States v. Kimball, 884 F.2d 1274, 1278-1279 (9th Cir. 1989) (affirming suppression of co-conspirator statements that were fruits of Sixth Amendment violation). The other cases either involve no Sixth Amend ment issue, see United States v. Faulkingham, 295 F.3d 85, 94 (1st Cir. 2002) (need for deterrence did not warrant suppression of fruits of negligent violation of defendant's Miranda rights), cert. denied, 124 S. Ct. 2931 (2004); United States v. Tedford, 875 F.2d 446, 450-451 (5th Cir. 1989) ("fruit of the poisonous tree" doctrine does not apply to violations of Fed. R. Crim. P. 41(c)), or involved the separate question of whether statements elicited in violation of Sixth Amendment stan dards with respect to pending charges are admissible at the defendant's trial on "very closely related subsequent charges." And one decision, United States v. Mitcheltree, 940 F.2d 1329, 1339-1345 (10th Cir. 1991) (admission of recorded conversation between defendant and informant required reversal of defendant's conviction for witness tampering, even though defendant had not been indicted on that charge when recording was made), rests on a Sixth Amendment premise that is no longer good law. See Texas v. Cobb, 532 U.S. 162, 173 (2001) (when Sixth Amend ment right to counsel attaches, it encompasses only those offenses that "would be considered the same offense under the Blockburger [v. United States, 284 U.S. 299 (1932),] test").