Petition for Writ of Certiorari — Fellers v. United States

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Supieme Court, y.

/ FILED re

: 041552 MAY 16 2005

IN THE

Supreme Court of the United States

JOHN J. FELLERS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

NOAH A. LEVINE SETH P. WAXMAN

WILMER CUTLER PICKERING Counsel of Record

HALE AND DORR LLP PAUL R.Q. WOLFSON

399 Park Avenue WILMER CUTLER PICKERING

New York, NY 10022 HALE AND DORR LLP

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

QUESTIONS PRESENTED

This Court previously held that police officers violated

petitioner’s Sixth Amendment right to counsel when the of-

ficers deliberately elicited an incriminating statement from

petitioner, who at the time was under indictment and was

entitled to the assistance of counsel in his defense. See Fell-

ers v. United States, 540 U.S. 519, 524-525 (2004). Within

only one half-hour of the Sixth Amendment violation identi-

fied by this Court, the same officers took petitioner to jail,

administered Miranda warnings, and again confronted peti-

tioner outside the presence of counsel, obtaining a related

incriminating statement. The court of appeals ruled that

petitioners’ second statement was properly admitted at trial

under the rationale of Oregon v. Elstad, 470 U.S. 298 (1985),

without regard to whether the second statement was de-

rived from the prior Sixth Amendment violation.

The questions presented are:

1. Whether the court of appeals erred in declining to

analyze the admissibility of the second incriminating state-

ment under the traditional derivative-evidence rule and in-

stead holding that the statement was properly admitted at

petitioner’s trial under the rationale of Oregon v. Elstad, 470

U.S. 298 (1985). (This Court previously granted certiorari to

decide this question, but did not resolve it.)

2. Whether the court of appeals erred in holding, in the

alternative, that the admission of the second incriminating

statement was harmless error, based on the sufficiency of

other evidence purportedly supporting petitioner’s convic-

tion.

! (i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..............cccscscssssrsssscessssssesscssseescees i

TABLE, OF AUTHOR Gti icissceccecnicnnsnnsnsnissnassssnniesoscsasiaiatne iv

re ee ance neta ithtennnnstasiccincsencntncniatannnestaienbaiionie 1

FUT a ION intnesnscse-eccnsicenntininisinnannttiniaaianccssoonendanmninssasnenentine 2

CONSTITUTIONAL PROVISION INVOLVED ................ 2

STATEMENT OF THE CABG cscsccercesercosssssssincsnessnassnnsatvnrsnense 2

REASONS FOR GRANTING THE PETITION... 11

1. This Court Should Grant Review To Clarify

That Oregon v. Elstad Does Not Apply To Vio-

lations Of The Sixth Amendment, And That

Such Cases Are Instead Governed By The

Traditional Derivative-Evidence Rule ..............ccseeseeeee 11

II. The Court Of Appeals’ Harmless-Error Hold-

ing Warrants Review Because It Contravenes

Well-Established Precedent Of This Court ............c00 23

CONCLUSION ciseincccciccnccscsensonsnsnsnsacsascsastotsisesassasvenssnesannsnsnatianes 27

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. Fulminante, 499 U.S. 279 (1991) w.....ececeeeees 26

Brown v. Illinois, 422 U.S. 590 (1975) ......cceeseeeneee passim

Chapman v. California, 386 U.S. 18 (1967).......10, 23, 25

Chavez v. Martinez, 588 U.S. 760 (2008) ..........eeeeeees 12, 15

Dickerson v. United States, 530 U.S. 428

BID as sccassissiisnenictadatalactsaieemaasiaaeaaeainaas 9, 14, 15, 28

Dunaway v. New York, 442 U.S. 200 (1979) wo. eee 21

Fellers v. United States, 538 U.S. 905 (2008).........cccceeee 8

Fellers v. United States, 540 U.S. 519 (2004)................ i, 1

Kastigar v. United States, 406 U.S. 441 (1972).............. 12

Kaupp v. Texas, 538 U.S. 626 (2008)... cece 20, 21, 22

Kotteakos v. United States, 328 U.S. 750 (1946)............ 24

Maine v. Moulton, 474 U.S. 159 (1985)... eccccsssoseeseee 17

Massiah v. United States, 377 U.S. 201 (1964).......... 8, 12

Michigan v. Tucker, 417 U.S. 433 (1974)... cceeceeseeeseees 14

Miranda v. Arizona, 384 U.S. 436 (1966) .........ceeeceeeeee 13

Missouri v. Seibert, 1248. Ct. 2601 (2004)............... 10, 16

Nardone v. United States, 308 U.S. 388 (1939).............. 19

Neder v. United States, 527 U.S. 1 (1999) wc. eeeeeeees 23

Nix v. Williams, 467 U.S. 431 (1984)... 12, 13, 16

Oregon v. Elstad, 470 U.S. 298 (1985).......cceseeeees passim

Patterson v. Illinois, 487 U.S. 285 (1988)..........0. 9, 18, 23

Satterwhite v. Texas, 486 U.S. 249 (1988)........cceceseeeeees 25

Taylor v. Alabama, 457 U.S. 687 (1982)......cccceeeeee 20, 21

United States v. Aguayo-Delgado, 220 F.3d 926

(BEN Cap. Ba iiiiccccconisesicitainia etnias eee ance 10

United States v. Aguilar-Portillo, 334 F.8d 744

(Beda Char, DOB isissiccscccscchsaniasnieiciiae ne aiacelaeans 10, 11, 24

United States v. Ash, 413 U.S. 300 (1973) wee 17, 19

United States v. Booker, 125 8S. Ct. 738 (2005)... ll

United States v. Ceccolini, 485 U.S. 268 (1978)............. 20

TABLE OF AUTHOR? TIES—Continued

Page(s)

United States v. Cunningham, 145 F.3d 1385

lait ae acalsidaetiadens 25

United States v. Faulkingham, 295 F.3d 85 (1st

Sine ITTITTTiiissidicubiciipesisteiticabiebaaniebcbiebesstaiddiasieiodeseniciianindaianicae 13

United States v. Hands, 184 F.3d 1322, cor-

rected in other respects by 194 F.3d 1186 .

ae eR 25

United States v. Kimball, 884 F.2d 1274 (9th

ni INUIT ai ttsilibeaasdentanssdcieainiunahienidabadaniasbninsabibinaideniielantenins 13

United States v. Mitcheltree, 940 F.2d 1329

I aici 13

United States v. Noti, 731 F.2d 610 (9th Cir.

SITE Eisieiileslsebasastisasenihindbecihelacsbsdiiaitatesicaineholapatianiipanensanians 26

United States v. Patane, 124 S. Ct. 2620

RR een ee ae 13, 15, 16

United States v. Tedford, 875 F.2d 446 (5th Cir.

SICA taeda adic fia abahnlbialenig eaxanbdionaaiieaetaniianies 13

United States v. Terzado-Madruga, 897 F.2d

REE On Cra aE IE 13

United States v. Tome, 61 F.3d 1446 (10th Cir.

Sar Niisicdhdlichceiclad ss eesieniipneieigdlbasinciaehasaiaiinadieemundansiannneaaniine 25

United States v. Wade, 388 U.S. 218 (1967) 0.0.0.0... 12

Wong Sun v. United States, 371 U.S. 471 (1963).....12, 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

eT acess sas haphahoeieinarainiaateiacaiaptin 2

| LE RT EN eT TRE are 3

I TIT TE ccctatesnsidionniipmsihinseicnsendeibnsiiaiinobaionsnbien 2

IN THE

Suprenw Court of the United States

No. 04-

JOHN J. FELLERS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner John J. Fellers respectfully petitions for a

writ of certiorari to review the judgment of the court of ap-

peals in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-15a) is re-

ported at 397 F.3d 1090. The opinion of this Court (App.

17a-22a) is reported at 540 U.S. 519. The first opinion of the

court of appeals (App. 23a-30a), which was reversed and re-

manded by this Court, is reported at 285 F.3d 721. The or-

der of the district court (App. 31a-36a), the order of the mag-

istrate judge (App. 37a-38a), and the transcript of the oral

ruling of the magistrate judge on petitioner’s motion to sup-

press (App. 39a-43a) are not reported.

JURISDICTION

The opinion of the court of appeals was issued on Feb-

ruary 15, 2005. This Court has jurisdiction under 28 U.S.C.

§ 125401).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment provides: “In all criminal prose-

cutions, the accused shall enjoy the right ... to have the As-

sistance of Counsel for his defence.”

STATEMENT OF THE CASE

This Court previously granted a petition for certiorari

in this case to decide two questions: (1) whether police offi-

cers violated petitioner’s Sixth Amendment right to the as-

sistance of counsel by deliberately eliciting a _post-

indictment, incriminating statement from him in the absence

of counsel, and (2) if so, whether a second, related statement

elicited from petitioner approximately one half-hour later,

without any intervening consultation with counsel, but after

the administration of warnings pursuant to Miranda vy. Ari-

zona, 384 U.S. 436 (1966), should have been suppressed as

the fruit of the earlier Sixth Amendment violation. After

briefing and oral argument on both questions, this Court

unanimously agreed with petitioner on the first question,

but remanded the case for the court of appeals to decide “in

the first instance” whether petitioner’s second statement

was properly admitted under the rationale of Oregon v. El-

stad, 470 U.S. 298 (1985). Elstad, which involved statements

taken from a suspect who was not under indictment and was

therefore not covered by the Sixth Amendment’s Counsel

Clause, held that the failure to give Miranda warnings to a

suspect, when not amounting to a violation of the Constitu-

tion itself, does not require the suppression of a statement

obtained after a subsequent provision of full Miranda warn-

ings and the suspect’s knowing and voluntary waiver of his

Miranda rights. See id. at 303-309.

The court of appeals has now decided the question that

this Court requested it to consider, reaching the same result

that it reached prior to this Court’s certiorari grant. As it

had previously, the court of appeals held that the admissibil-

ity of petitioner’s second statement should be analyzed un-

der Elstad rather than under the derivative-evidence rule

(i.e., the fruits of the poisonous tree doctrine) normally ap-

plicable in cases of constitutional violations. With the court

of appeals’ ruling, the question whether a confession derived

from a Sixth Amendment violation can nonetheless be ad-

mitted under Elstad is now squarely presented for this

Court’s consideration. On remand, the court of appeals also

applied a harmless-error standard that is flatly inconsistent

with this Court’s precedents. Petitioner respectfully seeks

this Court’s review on both issues.

1. On February 23, 2000, a federal grand jury returned

an indictment charging petitioner with conspiracy to dis-

tribute methamphetamine and to possess methamphetamine

with intent to distribute it, in violation of 21 U.S.C. § 846.

One day later, Deputy Sheriff Jeff Bliemeister of the Lan-

caster County Sheriffs Office and Detective Sergeant Mi-

chael Garnett of the Lincoln Police Department went to pe-

titioner’s home in Lincoln, Nebraska to arrest him. App.

17a-18a. While in petitioner’s home, the police officers delib-

erately elicited incriminating information from petitioner,

“inform[ing] him that their purpose in coming was to discuss

his involvement in the distribution of methamphetamine and

his association with certain charged co-conspirators”—Kathi

Kuenning, Patrick Sardeson, Thomas Geffs, and Mark Far-

falla. App. 2la. Petitioner agreed to talk to the officers and

acknowledged that he had used methamphetamine at an ear-

lier time in his life, when he had associated with the four

named persons. App. 18a.

The officers then transported petitioner directly to the

Lancaster County jail, a trip that lasted approximately

twenty minutes, and placed petitioner in an interrogation

room. See Joint Appendix, Fellers v. United States, No. 02-

6320 (Fellers JA), at 21, 23-24, 49-50 (transcript of suppres-

sion hearing). After receiving Miranda warnings, petitioner

agreed to speak to the officers. Jd. at 24-27. Bliemeister

then questioned petitioner about the same four associates

discussed during the immediately preceding encounter at

petitioner’s home. /d. at-29-34, 51-52, 89. Bliemeister ac-

knowledged that in conducting the jailhouse interrogation,

he employed specific techniques for which he had received

training. In particular, Bliemeister attempted to elicit cer-

tain admissions from petitioner and then progressively

sought increasingly more detailed answers about those ad-

missions. See Trial Transcript (TT) 91-92, 177.

Armed with petitioner’s prior acknowledgement that he

had associated with the four individuals, Bliemeister initially

questioned petitioner about “his involvement with

Geffs.” Fellers JA at 29. Having already admitted, in the

previous encounter at his home, that he had associated with

Geffs, petitioner again acknowledged the same. /d. In re-

sponse to additional questioning by Bliemeister, however,

petitioner denied that he ever had obtained methampheta-

mine from Geffs. Jd. Bliemeister then moved his question-

ing to Sardeson, Kuenning, and Farfalla, similarly address-

ing petitioner’s relationship with each person one at a time.

Id. at 29-34. In each case, the officer asked petitioner

whether he knew the person in question, even though peti-

tioner had admitted his association with them just one half-

hour earlier. Jd. at 29-34, 51-52, 89. As this Court recog-

nized, “petitioner then reiterated the inculpatory statements

he had made earlier,” acknowledging his association with

each co-conspirator. App. 18a.

After reestablishing the fact of petitioner’s association

with Sardeson, Kuenning and Farfalla, Bliemeister asked

additional questions seeking details of petitioner’s relation-

ship with each. In response to that interrogation, petitioner

confessed that he had obtained methamphetamine from

Kuenning and Sardeson, lent money to Kuenning, shared

methamphetamine with Sardeson, and used methampheta-

mine with Farfalla. Fellers JA at 29-34, 37. Petitioner de-

nied, however, selling methamphetamine. Jd. at 37-38.

Bliemeister also asked petitioner about his involvement with

a few persons not broached previously at petitioner’s home.

Id. at 34-35, 37-38, 52. Finally, Detective Garnett asked pe-

ee ee

titioner questions about his methamphetamine use. /d. at

35-36, 79. Petitioner repeated his earlier admission, made

during the encounter at his home, that he had used metham-

phetamine. In response to further questioning, petitioner

also discussed various details of that use. Jd. at 33, 35-36.

2. a. Before tria!, petitioner moved to suppress the

statements he had made at his home and the jail. The mag-

istrate judge held a hearing at which Bliemeister and Gar-

nett testified. -Based on the testimony, the magistrate judge

found that the officers’ statements to petitioner at his home

were “designed to elicit a response,” that only one half-hour

elapsed between the time the officers left petitioner’s home

and the time they commenced interrogation at the jailhouse,

and that, notwithstanding the administration of Miranda

warnings at the jail, petitioner’s jailhouse statement was

tainted by the prior unlawful encounter at his home. App.

39a-42a. The magistrate judge recommended suppression of

petitioner’s statement at his home as well as his subsequent

jailhouse statement to the extent that the latter concerned

the persons discussed previously at petitioner’s home

(namely, Kuenning, Sardeson, Geffs, and Farfalla). App.

42a-43a.

The district court accepted the recommendation to sup-

press petitioner’s statement at his home, but rejected the

recommendation to suppress petitioner’s jailhouse state-

ment. App. 32a, 35a. According to the district court, peti-

tioner “made a knowing, intelligent, and voluntary waiver of

his Miranda rights” before making his jailhouse statement.

App. 35a. Based on that fact, but without making any addi-

tional findings regarding the extent of any attenuation of the

taint from petitioner’s first statement, the district court

found the jailhouse statement admissible under Elstad.

App. 33a-35a.

b. Bliemeister testified at petitioner’s trial, recounting

petitioner’s jailhouse statement for the jury. See TT 52-182.

Apart from the officer’s testimony, the government’s case

consisted entirely of testimony from witnesses with severe

credibility problems. Each of the witnesses was involved in

some manner in the alleged conspiracy, and each also had

numerous prior felony convictions (in addition to their recent

convictions arising out of this alleged conspiracy). See TT

259 (Kuenning: three other prior convictions); 336 (Geffs:

six); 394-396 (Sardeson: three); 480-431 (Abbott: five); 470

(Messersmith: two); 486 (Lawrence: two); 523-524 (Cotton:

eight). Three of the-government’s witnesses, including its

two primary witnesses (Kuenning and Cotton), had been

convicted of forgery and other crimes that involved dishon-

esty and therefore cast doubt on their veracity. See TT 189

(Kuenning: forgery); 430, 487-438 (Abbott: forgery, two for

false reporting to police officers); 523-524 (Cotton: theft by

deception, three for forgery). All of the witnesses testified

that they were long-time drug addicts. See TT 263-264, 344,

367-368, 441, 475, 512, 647-649. One of the government’s two

primary witnesses, Kuenning, testified that the govern-

ment’s other primary witness, Cotton, had a reputation for

being dishonest and a liar. See TT 672. Kuenning also dis-

puted the truth of important parts of Cotton’s testimony,

leading the government to take the unusual step of impeach-

ing Kuenning, on whom its case was built, with her admis-

sion that, due to drug addiction, her “memory is worthless.”

TT 271, 681.

Moreover, all of the witnesses admitted that they were

testifying pursuant to cooperative plea agreements. See TT

184, 261-262 (Kuenning); 303 (Geffs); 362 (Sardeson); 409

(Abbott); 446 (Messersmith); 484 (Lawrence); 519 (Cotton).

At the time of their testimony, six of the seven witnesses

were serving prison sentences for their recent controlled-

substances convictions (see TT 183, 362, 409, 446, 484, 519),

and the seventh witness (Geffs) avoided prison by entering

into his plea agreement and cooperating with the govern-

ment. See TT 303-307, 345-347. Kuenning, Sardeson, Ab-

bott, Messersmith, and Cotton admitted that they were tes-

tifying against petitioner with the hope that, pursuant to

their plea agreements, they would be rewarded with re-

duced sentences. See TT 186, 261-262, 365, 402, 434-435, 449-

450, 473-474, 521, 594-595. Lawrence testified that he was

cooperating to avoid prosecution in federal court for offenses

with longer prison sentences. See TT 511.

As a result, and in response to petitioner’s repeated

challenges to the credibility of the government’s witnesses

in cross-examination and closing argument, the government

placed important reliance on petitioner’s jailhouse state-

ment. In its closing argument, after conceding its witnesses’

shortcomings (see TT 728-729), the government attempted to

shore up the testimony of its witnesses by describing several

ways in which “[petitioner’s}] own statements corroborate

the testimony that has been presented by the other wit-

nesses who have been brought in for you.” TT 734; see also

TT 704, 732-734. The jury found petitioner guilty of a lesser-

included offense involving between 50 and 500 grams of

methamphetamine, thereby rejecting the charge of distrib-

uting more than 500 grams, for which the government had

sought conviction. See TT 710, 739.

ce. The court of appeals affirmed. The court rejected pe-

titioner’s Sixth Amendment challenge in a single sentence,

holding that “the officers did not interrogate Fellers at his

home.” App. 26a. The court further held that because peti-

tioner made his jailhouse statement after having received

Miranda warnings, that statement was admissible under

Elstad. App. 25a-26a. Judge Riley concurred. Although he

believed the officers did violate petitioner’s Sixth Amend-

ment right to the assistance of counsel, he agreed that the

jailhouse statement was admissible under the rationale of

Elstad. App. 30a.

d. Petitioner sought review in this Court, arguing that

(1) the court of appeals had applied an incorrect legal stan-

dard to the question whether his first statement was ob-

tained in violation of the Sixth Amendment, and (2) if his

first statement was obtained in violation of the Sixth

Amendment, then his second statement also should have

been suppressed as it was derived from the initial constitu-

tional violation, and that Elstad does not permit the admis-

sion of a statement that is derived from a violation of the

Sixth Amendment. See Pet. for Writ of Certiorari, Fellers v.

Renee ee ene nnmnmcecccceeeeceecccca cece eT —————E

United States, No. 02-6320. This Court granted review on

both questions. See 538 U.S. 905 (2003).

This Court reversed and remanded. Finding that the

police officers “ ‘deliberately elicited’ information from peti-

tioner” after his indictment and in the absence of counsel,

this Court ruled that “the Court of Appeals erred in holding

that the officers’ actions did net violate the Sixth Amend-

ment standards established in Massiah [v. United States,

377 U.S. 201 (1964)], and its progeny.” App. 2la. The Court

further held that, given this error, the court of appeals “im-

properly conducted its ‘fruits’ analysis under the Fifth

Amendment.” /d. The Court did not resolve the second

question on which it had granted certiorari concerning the

admissibility of petitioner’s second, jailhouse statement.

Rather, this Court remanded the case for the court of ap-

peals to decide “in the first instance” “whether the Elstad

rationale applies when a suspect makes incriminating state-

ments after a knowing and voluntary waiver of his right to

counsel notwithstanding earlier police questioning in viola-

tion of Sixth Amendment standards.” App. 21a-22a.

3. On remand, the court of appeals again affirmed peti-

tioner’s conviction. Addressing the precise question re-

manded to it by this Court, the court of appeals held that

Elstad does apply in cases involving Sixth Amendment vio-

lations. See App. 8a (“[T]he Elstad rule applies when a sus-

pect makes incriminating statements after a knowing and

voluntary waiver of his right to counsel, notwithstanding

earlier police questioning in violation of the Sixth Amend-

ment.”); see-generally App. 3a-10a.

In so holding, the court of appeals rejected petitioner’s

arguments that Elstad is inapplicable to cases in which

(1) an actual constitutional violation, rather than a mere

Miranda violation, is at issue, and (2) a Sixth Amendment,

rather than a Fifth Amendment, issue is presented. Re-

specting the first argument, the court of appeals recognized

that this Court has held that tie traditional derivative-

evidence rule applies when government officers violate the

Fourth, Fifth, or Sixth Amendment. See App. 4a. Indeed,

the court noted that Elstad itself states that “constitutional

violations mandate application of the fruits doctrine.” /d.

The court of appeals also acknowledged that Elstad’s “rejec-

tion of the [derivative-evidence] rule in the Miranda context

was premised on the fact that a violation of Miranda was

not, by itself, a violation of the Fifth Amendment and on the

fact that the protections afforded by the Miranda rule

sweep more broadly than the Fifth Amendment itself.” Jd.

Nevertheless, the court of appeals ruled that the tradi-

tional derivative-evidence rule should not be applied in this

case. The court of appeals determined that this Court un-

dercut the original rationale for its E/stad ruling when it

subsequently decided Dickerson v. United States, 530 U.S.

428 (2000). In the court of appeals’ view, Dickerson reinter-

preted Elstad as resting not on the absence of a constitu-

tional violation but instead “on the fact that unreasonable

searches under the Fourth Amendment are different from

unwarned interrogation under the Fifth Amendment.” App.

Aa.

The court of appeals also rejected any distinction be-

tween the Fifth Amendment context of E/stad and the Sixth

Amendment context of petitioner’s case. Relying on Patter-

son v. Illinois, 487 U.S. 285 (1988), a case that did not ad-

dress any derivative-evidence issues, the court concluded

that the applications of the Fifth and Sixth Amendments to

pretrial interrogation are sufficiently similar to justify the

extension of Elstad to cases in which officers violate a de-

fendant’s Sixth Amendment rights by deliberately eliciting

an uncounseled, post-indictment statement. App. 8a-10a.

The court thus held that “[iJn the case of warned confessions

that follow unwarned, uncounseled statements, ... the sus-

pect’s knowing, intelligent, 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

statements ... and the suksequent statements.” App. 8a.

Having decided that Elstad governs, and having re-

jected application of the derivative-evidence rule, the court

of appeals also applied the test articulated by the plurality in

Missouri v. Seibert, 124 S. Ct. 2601, 2612 (2004), for cases

involving Miranda violations. See App. lla-12a. Under that

test, designed to determine the efficacy of Miranda warn-

ings in ensuring a suspect’s comprehension of his Fifth

Amendment right to remain silent after having made an ini-

tial unwarned statement, the court held that the officers’

conduct had not “vitiate[d] the effectiveness of the Miranda

warnings given to [petitioner].” App. lla. The court also

found that petitioner’s statement could be admitted under

the separate test, again designed for cases involving

Miranda violations, set forth in Justice Kennedy’s concur-

ring opinion in Seibert. See App. 12a.

Finally, the court of appeals determined that any error

in admitting petitioner’s jailhouse statement was harmless.

See App. 12a-14a. The court acknowledged that “each of the

government witnesses had numerous past convictions, had

used illegal drugs extensively for a number of years, and

were testifying pursuant to plea bargains in hopes of a re-

duced sentence.” App. 13a. Yet, relying on a decision adju-

dicating a conceptually distinct sufficiency-of-the-evidence

challenge, the court dismissed the relevance of the wit-

nesses’ backgrounds here, holding that “their credibility was

for the jury to decide.” Jd. (citing United States v. Aguayo-

Delgado, 220 F.3d 926, 935 (8th Cir. 2000)). The court did

not inquire whether the admission of petitioner’s jailhouse

statement contributed to the jury’s partial crediting of the

government witnesses’ testimony, and thus to the resulting

verdict. Cf Chapman v. California, 386 U.S. 18, 24 (1967)

(“the beneficiary of a constitutional error [must] prove be-

yond a reasonable doubt that the error complained of did not

contribute to the verdict obtained”). Rather, the court of

appeals simply excised petitioner’s jailhouse confession from

the government’s case and concluded that the remaining

evidence was sufficient to support his conviction. Quoting

another sufficiency-of-the-evidence case, the court reasoned

that “[aJlthough a reasonable mind could entertain concerns

about the reliability and consistency of [the government

witnesses’] accounts given the witnesses’ plea bargains,

criminal histories, and past drug use, the evidence presented

by the government in this case is swfficient to prove the [pe-

titioner] conspired to possess methamphetamine with intent

to distribute.” App. 13a-14a (internal quotation marks omit-

ted, emphasis added) (quoting United States v. Aguilar-

Portillo, 334 F.3d 744, 747 (8th Cir. 2003)).”

REASONS FOR GRANTING THE PETITION

I THis Court SHOULD GRANT REVIEW TO CLARIFY THAT

OREGON V. ELSTAD DOES NoT APPLY TO VIOLATIONS OF

THE SIXTH AMENDMENT, AND THAT SUCH CASES ARE IN-

STEAD GOVERNED By THE TRADITIONAL DERIVATIVE-

EVIDENCE RULE

This Court previously granted certiorari in petitioner’s

case to review the applicability of Oregon v. Elstad, 470 US.

298 (1985), to the admission of a suspect’s statement that

was derived from a Sixth Amendment violation. See 538

U.S. 905 (2003); Pet. for Writ of Certiorari, Fellers v. United

States, No. 02-6320, at 17-23. Because the court of appeals’

earlier decision had erroneously failed to find a Sixth

Amendment violation, this Court, after correcting that er-

ror, remanded the case for the court of appeals to pass on

the Elstad question first. The court of appeals has now done

so, reaching the same result that this Court originally de-

termined to review.

The court of appeals’ decision, applying Elstad rather

than the traditional derivative-evidence rule, is unprece-

dented and erroneous. Moreover, the decision poses a dis-

tinct danger to the Sixth Amendment right to counsel, for it

provides the police with a road map to eviscerate the right of

criminal defendants to legal assistance at a point where they

are most vulnerable. Accordingly, this Court should grant

"On a separate issue, the court of appeals held that petitioner was

entitled to a new sentencing hearing based on this Court’s decision in

United States v. Booker, 125 S. Ct. 738 (2005). App. 14a-15a. The district

court held that hearing on May 2, 2005, reducing petitioner’s sentence to a

term of 102 months’ imprisonment.

| NN EN

review and make clear that Elstad does not permit the ad-

mission of the fruits of a Sixth Amendment violation.

1. This Court has consistently ruled that evidence ob-

tained by or derived from unconstitutional conduct must be

excluded from a defendant’s criminal trial. See, e.g., Wong

Sun v. United States, 371 U.S. 471, 484-485 (1963) (Fourth

Amendment); Brown v. Illinois, 422 U.S. 590, 597-600 (1975)

(same); Kastigar v. United States, 406 U.S. 441, 453-454, 461-

462 (1972) (Fifth Amendment); Chavez v. Martinez, 538 U.S.

760, 768-770 (2003) (plurality opinion) (same); United States

v. Wade, 388 U.S. 218, 239-241 (1967) (Sixth Amendment);

Nix v. Williams, 467 U.S. 431, 441-443 (1984) (same). The

last two cited decisions confirm that the derivative-evidence

rule is fully applicable to the fruits of Sixth Amendment vio-

lations. For example, in Wade, which involved a violation of

the respondent’s Sixth Amendment right to the assistance of

counsel at a pretrial identification lineup, the Court held that

the admissibility of the subsequent courtroom identification

was governed by the derivative-evidence rule of Wong Sun.

See Wade, 388 U.S. at 239-241. The Court explained that

“{a] rule limited solely to the exclusion of testimony concern-

ing identification at the lineup itself, without regard to ad-

missibility of the courtroom identification, would render the

right to counsel an empty one.” Jd. at 240.

Similarly, in Nix—which involved a violation of the

same “deliberate elicitation” standard of Massiah v. United

States, 377 U.S. 201 (1964), that is at issue here—the Court

stated that “the ‘fruit of the poisonous tree’ doctrine has not

been limited to cases in which there has been a Fourth

Amendment violation. The Court has applied the doctrine

where the violations were of the Sixth Amendment as well

as of the Fifth Amendment.” Nix, 467 U.S. at 442 (citing,

e.g., Wade, 388 U.S. 218). At issue in Nix was whether evi-

dence pertaining to the discovery and condition of a murder

victim’s body was properly admitted at the defendant’s trial,

given that the police had discovered the body after deliber-

ately eliciting incriminating statements from the defendant

in the absence of counsel. See id. at 434. The Court held

that the derivative evidence was properly admitted because

the government inevitably would have discovered it. See id.

at 448-450. That holding confirms the applicability of the

derivative-evidence rule in the Sixth Amendment context.

Were the rule not applicable, there would have been no need

for the Court even to address whether a new inevitable-

discovery exception should be recognized.

Just last Term, in another Elstad-related case, the plu-

rality in United States v. Patane confirmed that the tradi-

tional derivative-evidence rule governs in cases of Sixth

Amendment violations. The Patane plurality specifically

cited Nix as an application of the “fruit of the poisonous

tree” doctrine “in the Sixth Amendment context” and noted

that the doctrine “applies to illegally obtained evidence and

other incriminating evidence derived from it.” 124 S. Ct.

2620, 2629 (2004) (internal quotation marks, alterations, and

emphasis omitted). The courts of appeals have followed this

Court’s lead, similarly holding that the derivative-evidence

rule governs the admissibility of fruits of Sixth Amendment

violations. See United States v. Faulkingham, 295 F.3d 85,

91, 94 (1st Cir. 2002); United States v. Mitcheltree, 940 F.2d

1329, 1343 (10th Cir. 1991); United States v. Terzado-

Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990); United States

v. Kimball, 884 F.2d 1274, 1278 (9th Cir. 1989); United States

v. Tedford, 875 F.2d 446, 450 (5th Cir. 1989).

In Oregon v. Elstad, 470 U.S. 298 (1985), this Court con-

cluded that the traditional derivative-evidence rule should

not apply when the only government misconduct at issue

was an inadvertent failure to give the full warnings required

by Miranda v. Arizona, 384 U.S. 436 (1966). See Elstad, 470

U.S. at 304. The Court held that in those circumstances, a

defendant’s subsequent confession may be admitted so long

as it was preceded by Miranda warnings and was knowingly

and voluntarily made. See id. at 309. This Court has not ex-

tended Elstad beyond its narrow Miranda context, nor has

the Court announced any similar exception to the derivative-

evidence ruie in circumstances where the government has

violated a defendant’s Sixth Amendment right to the assis-

tance of counsel. And, to petitioner’s knowledge, apart from

the court of appeals’ decision here, no court of appeals has

extended Elstad to cases of Sixth Amendment violations.

The court of appeals’ decision in this case thus stands alone.

2. The court of appeals’ decision is erroneous in two

fundamental respects.

a. First, as the court of appeals itself acknowledged,

this Court consistently has applied the derivative-evidence

rule in cases involving constitutional violations. The Court

recognized only a limited exception in Elstad due to the ab-

sence of any constitutional violation in that case. As the

Court explained there, “[rJespondent’s contention that his

confession was tainted by the earlier failure of the police to

provide Miranda warnings and must be excluded as ‘fruit of

the poisonous tree’ assumes the existence of a constitutional

violation.” 470 U.S. at 305. But, “(t]he Miranda exclusion-

ary rule... sweeps more broadly than the Fifth Amendment

itself [and] may be triggered even in the absence of a Fifth

Amendment violation.” Jd. at 306. “[{A] simple failure to

administer Miranda warnings is not in itself a violation of

the Fifth Amendment.” Jd. at 306 n.1. Thus, the Court re-

jected the respondent’s argument there at its very root, con-

cluding that the derivative-evidence rule does not apply with

its normal breadth where the primary misconduct violates

no constitutional standards itself. See also id. at 308 (“Since

there was no actual infringement of the suspect’s constitu-

tional rights [in Michigan v. Tucker, 417 U.S. 433 (1974)],

the case was not controlled by the doctrine expressed in

Wong Sun that fruits of a constitutional violation must be

suppressed.”). In contrast, the Court noted, official miscon-

duct of constitutional magnitude “traditionally mandate[s] a

broad application of the ‘fruits’ doctrine.” 470 U.S. at 306.

The court of appeals acknowledged all of the above, but

then refused to follow Elstad’s teachings based on the court

of appeals’ conclusion that Elstad should now be reinter-

preted in the light of Dickerson v. United States, 530 U.S.

428 (2000). The court of appeals seized on this Court’s

statement in Dickerson that Elstad “refus[ed] to apply the

RP ee ee

traditional ‘fruits’ doctrine developed in Fourth Amendment

cases” based on “the fact that unreasonable searches under

the Fourth Amendment are different from wnrwarned inter-

rogation under the Fifth Amendment.” 530 U.S. at 441 (em-

phasis added). Nothing in that sentence, however, suggests

‘ that this Court has abandoned its previous view in Elstad

that mere “unwarned interrogation” does not amount to a

violation of the Constitution and for that reason does not

trigger the traditional derivative-evidence rule. -Rather,

Dickerson confirms Elstad’s premise—that unwarned inter-

rogation, standing alone, should not “breed[] the same con-

sequences as police infringement of a constitutional right.”

470 USS. at 304.

The court of appeals reached a contrary conclusion here

only by ignoring this Court’s subsequent cases. Since

Dickerson, this Court has twice confirmed that an inadver-

tent Miranda violation alone—the illegality at issue in El-

stad—does not constitute a violation of the Fifth Amend-

ment. In Chavez v. Martinez, 538 U.S. 760 (2003), the plural-

ity specifically quoted Elstad for the proposition that “ ‘(t]he

Miranda exclusionary rule ... serves the Fifth Amendment

and sweeps more broadly than the Fifth Amendment it-

self, ” id. at 770 (plurality) (citation omitted), and Justice

Kennedy agreed that a Miranda violation does not itself vio-

late the Constitution, see id. at 789 (Kennedy, J., concurring

in part, dissenting in part). In Patane, 124 S. Ct. at 2628, the

plurality reiterated that “a mere failure to give Miranda

warnings does not, by itself, violate a suspect’s constitutional

rights or even the Miranda rule. So much was evident in

many of our pre-Dickerson cases, and we have adhered to

this view since Dickerson.” Moreover, the Patane plurality

opinion confirmed the very point that the court of appeals

wrongly believed was undercut by Dickerson—that Elstad’s

refusal to apply the traditional derivative-evidence rule

there was premised squarely on the absence of a constitu-

tional violation. See Patane, 124 S. Ct. at 2626. Indeed, for

purposes of determining the derivative-evidence rule’s ap-

plicability, the Patane plurality contrasted the unwarned

interrogation at issue in Elstad with actual violations of the

Fourth, Fifth, and Sixth Amendments. See id. at 2629 (cit-

ing Nix, 467 U.S. at 441).

The important premise of Elstad—that the traditional

derivative-evidence rule should not apply when the govern-

ment misconduct at issue does not violate the Constitution

itself—is absent in cases like the present one, where a court

finds an actual violation of the Constitution. As this Court

confirmed in its earlier decision, the officers violated the

Sixth Amendment when they deliberately elicited a post-

indictment, uncounseled statement from ‘petitioner at his

home. See App. 2la. Thus, like the Sixth Amendment viola-

tions in Wade and Nix, the primary illegality here mandates

application of the derivative-evidence rule.

b. Second, and separately, the court of appeals also

wrongly extended Elstad beyond its limited Fifth Amend-

ment context. This Court has noted that each derivative-

evidence inquiry should reflect “the distinct policies and in-

terests” of the particular constitutionai right at issue.

Brown v. Illinois, 422 U.S. 590, 602 (1975). The Elstad rule

for the admission of evidence derived from a Miranda viola-

tion was designed only to “satisfly]” “the Fifth Amendment

proscription against use of compelled testimony.” 470 U.S.

at 318. In that limited context, the rule is sensible. When

officers elicit an initial voluntary confession from a suspect

(even if they fail to comply in all respects with Miranda), the

subsequent administration of Miranda warnings generally

ensures that a confession given thereafter is also voluntary,

and thereby addresses the central concern of the Fifth

Amendment. See id. at 310-311. Thus, the Court held in El-

stad that while an initial failure to administer the Miranda

warnings warrants a presumption that any confession

gained thereby was compelled, administration of the

Miranda warnings prior to a second confession “ordinarily

should suffice to remove the conditions” that warranted the

presumption of compulsion with regard to the first confes-

sion. /d. at 314; see also Missouri v. Seibert, 124 S. Ct. 2601,

2612 (2004) (plurality) (noting that the Miranda warnings in

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Elstad were understood to “present[{] a genuine choice

whether to follow up on the earlier admission”).

Compulsion is not the focus of the Sixth Amendment.

Rather, the principal purpose of the Sixth Amendment is to

ensure that a person formally charged with a criminal of-

fense has access to expert legal assistance at every critical

stage of a criminal prosecution, thereby ensuring that he is

not unfairly disadvantaged by an imbalance of skill and re-

sources between himself and the prosecution. See, ¢.g.,

Maine v. Moulton, 474 U.S. 159, 169 (1985); United States v.

Ash, 413 U.S. 300, 309 (1973).

When officers deliberately elicit a post-indictment con-

fession from an uncounseled defendant, subsequent Miranda

warnings from the same officers are not sufficient alone to

ensure that the central concerns of the Sixth Amendment

are vindicated, especially when (as in this case) virtually no

time has passed since the initial confession was illegally ob-

tained. The warnings by themselves do not afford the de-

fendant “ ‘the professional legal skill’” necessary to under-

stand the situation into which the government’s misconduct

has thrust him. Moulton, 474 U.S. at 169. They do not in-

form the defendant, as counsel would, of the legal rules con-

cerning the admissibility of the prior, deliberately elicited

statement. Nor do the Miranda warnings provide the de-

fendant legal advice regarding the true consequences of

making an additional statement in these circumstances.

There is accordingly a heightened danger that the defendant

will decide to make a second statement based upon a lack of

familiarity with his legal rights. In short, while the admini-

stration of Miranda warnings normally may remove the

Fifth Amendment taint from a prior Miranda violation by

adequately ensuring that a defendant understands he has a

choice whether to speak further, Miranda warnings do not

alleviate the distinct Sixth Amendment taint from the elici-

tation of a prior uncounseled statement by providing ade-

quate legal advice to a defendant respecting whether he

should exercise that choice to speak further under the cir-

cumstances.

ee nical

The court of appeals elided this important distinction

through a misplaced reliance on Patterson v. Illinois, 487

U.S. 285 (1988). This Court held in Patterson that a criminal

defendant’s waiver of his Miranda rights, made after a full

provision of Miranda warnings, will suffice to waive the de-

fendant’s Sixth Amendment right to the assistance of coun-

sel during pretrial questioning. See id. at 292-297. Accord-

ingly, in such cases, post-waiver questioning ordinarily will

not itself violate the Sixth Amendment. The question in this

case, however, is not whether the police officers violated pe-

titioner’s Sixth Amendment right to counsel when they

eventually furnished him with Miranda warnings and then

interrogated him at the jailhouse. The police had already

violated the Sixth Amendment, when they questioned peti- |

tioner at his home. |

Rather, the question in this case is whether petitioner’s |

jailhouse statement should be suppressed as the fruit of that

prior Sixth Amendment violation at his home. Patterson did

not announce any test for the admission of such derivative

evidence, nor did it address the more specific question

whether a Miranda warning is sufficient, standing alone, to

secure the admissibility of evidence derived from a prior

Sixth Amendment violation. Indeed, there was no govern-

ment misconduct (and more particularly, no Sixth Amend-

ment violation) preceding the waiver in Patterson,-so the

decision lacks the defining element of a derivative-evidence

case like petitioner’s. See 487 U.S. at 287-289. This Court

simply had no occasion to establish a standard for admission

of derivative evidence in circumstances where officers first

unconstitutionally elicit an uncounseled, post-indictment

statement.

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When such government misconduct has already oc-

curred, there is an important reason to distinguish between

the Fifth and Sixth Amendments in analyzing the admissibil-

ity of derivative evidence. Counsel serves distinct purposes

under the two Amendments when government officers have

unlawfully elicited a first incriminating statement. For pur-

poses of the Fifth Amendment, the assistance of counsel can

—

ensure that a defendant does not wrongly believe that he is

compelled to speak further to the government. But, as this

Court explained in Elstad, when the primary illegality at

issue is an inadvertent Miranda violation alone, the subse-

quent administration of Miranda warnings prior to a second

confession adequately ensures the voluntariness of that

statement. See 470 U.S. at 310-311, 314. For purposes of the ~

Sixth Amendment, however, the assistance of counsel en-

sures “equality in [the] adversary confrontation” by protect-

ing the accused from his own “lack of familiarity with the

law.” Ash, 413 U.S. at 317. Counsel is important not simply

to advise a defendant that he is not compelled to speak, but

also to advise the defendant whether it is in his best interest,

in light of the charges against him, to speak or remain silent.

Thus, regardless whether counsel serves a similar role under

the Fifth and Sixth Amendments at ordinary pretrial inter-

rogations, as the court of appeals found based on Patterson

(App. 8a-9a), counsel serves a broader Sixth Amendment

interest in those circumstances where government officers

have previously and unlawfully elicited incriminating infor-

mation from a defendant. Elstad’s conclusion that Miranda

warnings themselves can adequately safeguard the values

protected by the Fifth Amendment does not translate to the

Sixth Amendment context.

3. Having extended Elstad to petitioner’s case, the

court of appeals did not apply the traditional derivative-

evidence rule. That failure had'an important effect. As peti-

tioner argued previously to this Court, his jailhouse confes-

sion should have been suppressed under that rule. See, e.g.,

Brief for Pet., Fellers v. United States, No. 02-6320, at 26-30,

37-41.

Under the derivative-evidence rule, the government

bears the burden of proving that “the connection between

the lawless conduct of the police and the discovery of the

challenged evidence ha[d] ‘become so attenuated as to dissi-

pate the taint’” of the prior constitutional violation. Wong

Sun v. United States, 371 U.S. 471, 487 (1963) (quoting Nar-

done v. United States, 308 U.S. 338, 341 (1939)); see also, e.g.,

Kaupp v. Texas, 5388 U.S. 626, 632-633 (2003) (per curiam).

When the derivative evidence is a defendant’s incriminating

statement, this Court has framed the inquiry as whether

that statement was “ ‘sufficiently an act of free will to purge

the primary taint.’” Brown, 422 U.S. at 602 (quoting Wong

Sun, 371 U.S. at 486).

“Free will,” as used in the Court’s derivative-evidence

cases, means more than simply constitutional voluntariness

(.e., absence of government coercion). It means a true break

in the chain of causation establishing’ that the unconstitu-

tional conduct did not influence the defendant to give the

statement in question. A reviewing court must be convinced

that the prior constitutional violation did “not play any

meaningful part in the witness’ willingness” to make an in-

culpatory statement. United States v. Ceccolini, 435 US.

268, 277 (1978).

This Court has recognized that Miranda warnings by

themselves may well be insufficient to break the chain of

causation from a constitutional violation. For example, when

the government obtains a confession from a defendant fol-

lowing an illegal arrest, this Court’s cases “firmly establish{]

that the fact that the confession may be ‘voluntary’ for pur-

poses of the Fifth Amendment, in the sense that Miranda

warnings were given and understood, is not by itself suffi-

cient to purge the taint of an illegal arrest.” Taylor v. Ala-

bama, 457 U.S. 687, 690 (1982); see also Brown, 422 U.S. at

602 (“In order for the causal chain, between the illegal arrest

and the statements made subsequent thereto, to be broken,

Wong Sun requires not merely that the statement meet the

Fifth Amendment standard of voluntariness but that it be

‘sufficiently an act of free will to purge the primary taint.’ ”

(quoting Wong Sun, 371 U.S. at 486)).

To determine whether the chain of causation from a

constitutional violation has been broken, this Court has ap-

plied a multifactor attenuation test. Courts must consider,

in addition to the presence of any Miranda warnings, the

temporal proximity between the constitutional violation and

the defendant’s incriminating statement, the presence or

absence of intervening circumstances, and, particularly, the

purpose and flagrancy of the violation. See Kaupp, 538 U.S.

at 633; Taylor, 457 U.S. at 690; Dunaway v. New York, 442

U.S. 200, 218 (1979); Brown, 422 U.S. at 603-604. Given the

clear force of the evidence in petitioner’s case, the govern-

ment cannot satisfy its burden to prove taint attenuation.

First, only a half-hour passed between the deliberate

elicitation of the first statement from petitioner at his home

and his subsequent confession at the jail. During this entire

period, petitioner remained in the custody of the police offi-

cers. The exceedingly brief time period in petitioner’s case

is shorter than cases where the Court has found the tempo-

ral factor to favor exclusion of a subsequent confession. See,

e.g., Taylor, 457 U.S. at 691 (1982) (six hours); Brown, 422

U.S. at 604 (under two hours).

Second, no meaningful intervening event took place be-

tween the officers’ confrontation of petitioner at his home

and the subsequent interrogation at the jailhouse. Of par-

ticular importance here, given the Sixth Amendment con-

text, is the fact that petitioner never consulted with counsel

between the making of the two statements. Petitioner thus

remained ignorant of his legal rights (including his right to

suppress the first confession). There also was no other in-

tervening circumstance (e.g., an arraignment before a judge

at which counsel was appointed) that “could possibly have

contributed to [petitioner’s] ability to consider carefully and

objectively his options and to exercise his free will.” Taylor,

457 U.S. at 691; cf Brown, 422 U.S. at 611 (Powell, J., con-

curring in part) (“some demonstrably effective break ...,

such as actual consultation with counsel or ... presentation

before a magistrate,” should be required to attenuate taint

of official conduct that is flagrantly abusive of constitutional

rights).

Third, the flagrancy of the official misconduct is impor-

tant. In Massiah and subsequent cases, this Court has set

forth a clear and easily understood Sixth Amendment stan-

dard. As this Court earlier held in a unanimous decision,

Deputy Bliemeister plainly violated that Sixth Amendment

standard, telling petitioner that he and his partner wanted

to discuss with petitioner the controlled substances charges

on which he had been indicted the previous day. See App.

21a.

The only factor supporting the government here is the

police officers’ administration of Miranda warnings prior to

the jailhouse interrogation. In this respect, the case is simi-

lar to the Court’s per curiam decision in Kaupp, where the

Court explained: “The record before us shows that only one

of these considerations, the giving of Miranda warnings,

supports the state, and we held in Brown that ‘Miranda

warnings, alone and per se, cannot always ... break, for

Fourth Amendment purposes, the causal connection be-

tween the illegality and the confession.’” 5388 U.S. at 633

(quoting Brown, 422 U.S. at 603). Indeed, in Brown,

Dunaway, and Taylor too, the Court held that confessions

were inadmissible despite the administration of Miranda

warnings. There is no reason that the provision of the warn-

ings here, especially considering the ineffectiveness of such

warnings in addressing the central concerns of the Sixth

Amendment, should take petitioner’s case outside the ra-

tionale of these decisions.

4. As the above analysis shows, application of the tradi-

tional derivative-evidence rule would require the suppres-

sion of petitioner’s second statement. The court of appeals’

error in departing from that traditional rule in favor of reli-

ance on the inapposite decision in Elstad is a serious one

that warrants review by this Court. If provision of Miranda

warnings following a clear Sixth Amendment violation, such

as occurred in this case, will be sufficient to eliminate any

taint from that violation, then engaging in such violations

will essentially become cost-free to the police.

As the Court has recognized in the Fourth Amendment

context, a blanket rule that Miranda warnings are sufficient

to break the link between unconstitutional conduct and a

subsequent confession “eviscerate[s]” any incentive for gov-

ernment officers to avoid the improper conduct in the first

instance, “making the warnings, in effect, a ‘cure-all.’”

Brown, 422 U.S. at 602. That conclusion is even more apt

with respect to the Sixth Amendment. To admit a deliber-

ately elicited, uncounseled, post-indictment statement

against the defendant at trial in cases involving no preceding

Sixth Amendment violation, the prosecution already must

show that a defendant waived his right to counsel and made

his statement voluntarily. See, e.g., Patterson, 487 U.S. at

292 (waiver); Dickerson, 530 U.S. at 434 (voluntariness).

Under the court of appeals’ ruling, however, the very same

showing would be sufficient to establish the admissibility of

a confession derived from an earlier Sixth Amendment viola-

tion. In the court of appeals’ view, therefore, nothing at all

is changed by the fact that the government has violated the

Constitution. That approach is insufficient to protect the

important interests safeguarded by the Sixth Amendment.

Il. THE Court OF APPEALS’ HARMLESS-ERROR HOLDING WAR-

RANTS REVIEW BECAUSE IT CONTRAVENES'’ WELL-

ESTABLISHED PRECEDENT OF THIS COURT

The court of appeals held in the alternative that any er-

ror in petitioner’s case was harmless. That ruling also war-

rants review by this Court. This Court’s cases make clear

the proper standard for harmless-error review. More than

35 years ago, this Court held in Chapman v. California, 386

U.S. 18, 24 (1967), that a constitutional error in a criminal

case may be treated as harmless only where it can be said

“beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.” The Court continues

to apply the same Chapman standard today for direct re-

view of constitutional errors. See, e.g., Neder v. United

States, 527 U.S. 1, 15 (1999) (“In Chapman v. California, we

set forth the test for determining whether a constitutional

error is harmless. That test, we said, is whether it appears

‘beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.’ ” (citation omitted)).

The court of appeals did not apply the Chapman stan-

dard. On appeal, petitioner argued that the admission of his

jailhouse confession could not have been harmless given the

substantial reliance the government placed on petitioner’s

statement to corroborate and support the testimony of its

severely credibility-challenged witnesses. See Supp. Br. of

Def.-Appellant at 21-24. The court of appeals did not dis-

agree that petitioner’s statement had such a corroborative

effect. indeed, the court described the same effect itself.

See App. 13a. Nevertheless, the court did not once conduct

the inquiry prescribed by Chapman and make a determina-

tion whether the admission of petitioner’s jailhouse confes-

sion (and the particular manner in which the government

put it to use) contributed to the jury verdict by providing

important corroborative support to the government’s oth-

erwise weak case.

Rather, relying on prior cases adjudicating defendants’

challenges to the sufficiency of the evidence supporting their

convictions, the court of appeals replaced the Chapman

standard with the different and more government-favorable

evidence-sufficiency standard:

Although “a reasonable mind could entertain con-

cerns about the ‘reliability and consistency of [the

government witnesses’] accounts’” given the wit-

nesses’ plea bargains, criminal histories, and past

drug use, the evidence presented by the government

in this case is sufficient to prove that [petitioner]

conspired to possess methamphetamine with intent

to distribute. Accordingly, any error in admitting

[petitioner's] jailhouse statements was harmless.

App. 18a-14a (emphasis added) (quoting United States v.

Aguilar-Portillo, 334 F.3d 744, 747 (8th Cir. 2003)).

This analysis was legally erroneous. Long ago, in Kot-

teakos v. United States, this Court explained that the harm-

less-error “inquiry cannot be merely whether there was

enough to support the result, apart from the phase affected

by the error. It is rather, even so, whether the error itself

had substantial influence.” 328 U.S. 750, 765 (1946); see also

id. at 767 (“The Government’s theory seems to be ... that

the error ... is insubstantial and harmless, if the evidence

offered specifically and properly to convict each defendant

would be sufficient to sustain his conviction, if submitted in a

separate trial. For reasons we have stated and in view of

the authorities cited, this is not and cannot be the test under

[the federal harmless error statute].”). More recently, in

Satterwhite v. Texas, 486 U.S. 249, 258-259 (1988), the Court

distinguished constitutional harmless-error review from suf-

ficiency-of-the-evidence review in clear and certain terms:

“The question, however, is not whether the legally admitted

evidence was sufficient to support the death sentence, which

we assume it was, but rather, whether the State has proved

‘beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.’ ” (quoting Chapman,

386 U.S. at 24).

In contrast to the decision below, other courts of ap-

peals have followed this Court’s clear instructions that

harmless-error review is not equivalent to sufficiency-of-the

evidence review. See, e.g., United States v. Hands, 184 F.3d

1322, 1329 (“An error may substantially influence an out-

come and thus warrant reversal even if the evidence, had no

error occurred, would have been sufficient to support the

conviction.”), corrected in other respects by 194 F.3d 1186

(11th Cir. 1999); United States v. Cunningham, 145 F.3d

1385, 1394 (D.C. Cir. 1998) (“[H]armless error review calls

for an inquiry as to whether the Government has shown be-

yond a reasonable doubt that the error at issue did not have

an effect on the verdict, not merely whether, absent the er-

ror, a reasonable jury could nevertheless have reached a

guilty verdict.”); United States v. Tome, 61 F.3d 1446, 1455

(10th Cir. 1995) (“The question is not whether, omitting the

inadmissible statements, the record contains sufficient evi-

dence for a jury to convict the defendant.”).

Had the court of appeals applied the correct Chapman

standard, it could not have found the admission of peti-

tioner’s jailhouse confession to be harmless. As noted (sw-

pra, at pp. 5-7), the government’s witnesses had severe

credibility problems. Contrary to the court of appeals’ erro-

neous observation that the government witnesses’ testimony

“went largely unchallenged” (App. 13a), petitioner’s counsel

seized on the witnesses’ lack of credibility in cross-

examining each witness. Petitioner’s counsel also focused

his closing argument on the credibility issue, contending that

the government witnesses’ testimony should be disbelieved

in its entirety. See TT 711-727. In response, in its closing

argument, the government specifically relied on petitioner’s

jailhouse confession to support its witnesses, describing how

“[petitioner’s] own statements corroborate the testimony

that has been presented by the other witnesses who have

been brought in for you.” TT 734; see also TT 704, 732-734.

Yet, even with the erroneous admission of petitioner’s jail-

house confession and the government’s corroboration argu-

ment, petitioner’s credibility argument clearly had an effect

on the jury, which chose not to fully credit the government’s

witnesses. Although the government argued that the testi-

mony of its witnesses made petitioner responsible for be-

tween 691 to 815 grams of methamphetamine (see TT 710),

the jury found only between 50 and 500 grams involved in

petitioner’s offense (see TT 739).

In these circumstances, it is impossible to say that the

admission of petitioner’s jailhouse confession was harmless.

As this Court has noted, “[a] confession is like no other evi-

dence. The defendant’s own confession is probably the most

probative and damaging evidence that can be admitted

against him.” Arizona v. Fulminante, 499 U.S. 279, 296

(1991) (internal quotation marks omitted). Absent peti-

tioner’s confession and its corroborative effect on the gov-

ernment witnesses’ testimony, the jury might have discred-

ited the government witnesses entirely. In similar circum-

stances in Fulminante, this Court found that the erroneous

admission of the respondent’s coerced confession could not

have been harmless when the jury might have credited

other evidence due to the improperly admitted confession.

See id. au 1258-1259; see also United States v. Noti, 731 F.2d

610, 615-616 (9th Cir. 1984) (holding error not harmless

where credibility of government witness was in dispute, yet

jury likely credited witness in part due to corroboration by

defendant’s erroneously admitted statements). Moreover,

petitioner’s jailhouse statement was particularly damaging,

given that the government had charged him with conspiracy

to possess with intent to distribute and petitioner admitted

both his association with the alleged co-conspirators and

having purchased methamphetamine from them.

The decision below reflects a basic misunderstanding

about the nature of harmless-error review. That misunder-

standing had a direct real impact on the outcome of the case.

Accordingly, this Court should grant review to make clear

that harmless-error review and sufficiency-of-the-evidence

review are distinct and must remain so.

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted.

NOAH A. LEVINE ‘SETH P. WAXMAN