VASQUEZ v. UNITED STATES

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–199

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ALEXANDER VASQUEZ, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the seventh circuit

[April 2, 2012]

Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

Print this transcript Transcript: 

ORAL ARGUMENT OF BEAU B. BRINDLEY ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-199, Vasquez v. United States.

Mr. Brindley.

Mr. Brindley: Mr. Chief Justice, and may it please the Court:

When determining whether an error affects substantial rights pursuant to the harmless-error statute, courts should first begin the analysis with the error itself, consider it in the context of the entire record, determine what potential impact it may have, and then ask the question: Can the government prove to the requisite degree of certitude -- in this case, fair assurance -- that the error did not substantially impact the verdict of the jury that heard the case?

It is impermissible for the reviewing court to merely ask the question of whether some other jury, a reasonable jury that didn't hear the error that this jury heard, would convict him and determine harmlessness on that basis.

Kotteakos--

Justice Anthony Kennedy: My -- my problem is I -- I can accept that formulation certainly for purposes of this case.

I just don't see where in the opinion -- I have the opinion of the court of appeals.

It focused on the wrong test.

It didn't use the magic words -- and it started out with, let's look at the big picture, and it said: Well, here's the defense he elected to put on, and this is a tough sell because.

But then it quotes what happens with the jury.

It -- and it -- it ends its analysis for saying we -- this evidence would have moved the jury to convict Vasquez without a nudge from anything it heard in the government's case.

I just -- I just don't see that you've supported your theory by what the -- by what the Court says.

Mr. Brindley: --Before the harmless-error analysis, the question the Court asks is, what we have to decide is whether a reasonable jury would convict him absent the error.

And so the question that they ask doesn't require any consideration of the error.

And the conclusion they reach that he would be convicted without any consideration of the error also doesn't consider the error.

They do not address the error or its impact at all, despite a robust dissent which set forth the extraordinary prejudicial possible impact of this error.

They don't disagree with the dissent; they simply don't address it at all.

Justice Sonia Sotomayor: Could you tell me what the error actually was?

I see -- and you can add another -- three potential things about these calls or three potential errors: One, that they proved as a matter of fact that she was biased.

But, as the majority points out, she already said she was before the tapes were played.

So whatever error may have been occasioned by the jury using the tapes as for the truth, it really was cumulative to an already admitted bias.

The second is some sort of ambiguous statement by her that all of them were in trouble, meaning all the defendants, and a similar statement by the Petitioner's lawyer.

So what was it that was error that affected or influenced the jury among these three choices?

Mr. Brindley: The -- the statements from counsel, two statements: One, that everyone was going to lose the case, which was repeated several times by government counsel during the cross-examination.

Justice Sonia Sotomayor: It was never referenced in the summations, however, or in the reply.

Mr. Brindley: They were not specific -- the recordings were referenced, and they told them to look at the recordings.

They didn't reference that specific statement.

It was referenced three times in the cross-examination.

When the witness suggested that it -- who was going to lose the case only referred to her husband, the government corrected her and said, no, it was everyone, and then they played the tape to make that clear.

They also played a portion of a recording where it said that counsel was talking to Mr. Vasquez about pleading guilty.

Now, if you take those two statements together for their truth, what they mean is that counsel believes he's guilty and was telling him he should plead that way.

Justice Sonia Sotomayor: So that's the error that you think--

Mr. Brindley: I think that's--

Justice Sonia Sotomayor: --influenced this trial?

Mr. Brindley: --I think that's the most substantial one.

Justice Sonia Sotomayor: All right.

Now, tell me what in this record reflects that influence.

Mr. Brindley: Well--

Justice Sonia Sotomayor: The fact that they asked for her testimony, well, she was your client's entire defense.

So what does the asking for her testimony show that they were interested in that particular part of the transcript?

Mr. Brindley: --Well, asking for her testimony shows that they were focused on the -- they were asking for a transcript that would have contained that part of the record.

We don't -- we can't prove, and we don't have the burden -- I think that's important -- to prove that she -- they were focused on that specific statement.

However, they did ask for that transcript.

I also think they rendered the split verdict in the case, which is--

Justice Sonia Sotomayor: Which transcript?

The transcript of her testimony?

Mr. Brindley: --Her testimonies, both on direct -- and then they asked for both, plural, indicating they wanted the rebuttal testimony, which would have included these statements.

And I don't think there's any way for the government to prove on this record to any degree of assurance that they weren't concerned about that error, an error that I think if they took these things for their truth then they could have thought he essentially confessed to his lawyer.

His lawyer knew he was guilty.

Those are fair inferences if taken for their truth.

And then they could have disregarded all arguments that were made on his behalf.

That's a sort of error that could infect the entire proceeding.

And when you ask--

Justice Samuel Alito: Is it correct that the difference between your position and the government's position is that the government says the focus should be on a rational jury, and you say the focus should be on this particular jury?

Mr. Brindley: --That is one of the important differences.

I think--

Justice Samuel Alito: That I understand.

But beyond that I really don't understand the difference between the two positions.

Mr. Brindley: --I -- well, in the government's brief, at some times, as we indicate in our reply, it seems that they support a very similar test to ours, and in others it seems like they want to say that you can just look at a reasonable jury and how they would view the evidence.

Justice Samuel Alito: Well, let me -- let me read you two sentences and tell me whether you think there is a difference between them.

First one:

"Is there a fair possibility that this particular evidence caused the jury to convict? "

Second statement:

"Is there a fair possibility that this jury would have -- this jury would have convicted without the evidence? "

Do you see a difference between those two?

Mr. Brindley: I do.

The--

Justice Samuel Alito: What is the difference?

Mr. Brindley: --The difference is one of them was going to focus on the entire record, which includes the error.

The other is going to focus on the evidence in the record without the error, and that's important, particularly with an error like this, an error that could have a pernicious effect that could affect a large, substantial part of this evidence, everything the defendant presented.

It clearly--

Chief Justice John G. Roberts: Can I--

Mr. Brindley: --Yes.

Chief Justice John G. Roberts: --stop you there?

I -- where in the government's brief do you see the statement that the analysis should not look to the error, should not include the error?

Mr. Brindley: Part of the government's brief asserts that you can look at whether a reasonable jury would convict him absent the error.

That assessment doesn't require consideration of the error.

Chief Justice John G. Roberts: Where -- where exactly is that in their brief?

That the -- the question is whether a jury would convict him without considering the error?

Because I look at the government's brief and they have fairly extensive analysis of -- of the error, why they think it's not important, why they -- you know.

But I don't see them saying you don't look at the error at all.

Mr. Brindley: I think there is a significant -- I don't have the exact citation.

On page 29, Your Honor, it indicates:

"Although the court's analysis often has not focused exclusively on the overall strength of the government's proof, its decisions demonstrate that a court's determination of harmlessness can properly rest on the conclusion that the admissible evidence of guilt is sufficiently strong such that the prejudicial effect of erroneously admitted evidence can be deemed not to have altered the outcome. "

Chief Justice John G. Roberts: Yes, exactly.

In other words you look at the prejudicial effect of the erroneous admitted evidence and see if that altered the outcome.

Mr. Brindley: If that's the -- and there's parts of -- the government's brief, I think, agrees with us in large part on what this test should be.

And as far as that goes, I think the problem is the majority below asked a different question and appeared to do a different analysis.

Justice Elena Kagan: What would you point out in the majority opinion below that suggests that they did an analysis that didn't look at the error and its possible prejudicial effect?

Mr. Brindley: Two things.

First, the question that they asked.

The question that they asked was whether a reasonable jury would convict him absent the error.

There is no focus on this jury that heard the case or this verdict.

Justice Anthony Kennedy: Where -- where is that?

Where is that statement?

Mr. Brindley: In the -- you mean in the majority opinion?

Justice Anthony Kennedy: Yes.

Mr. Brindley: It's immediately prior to the harmless error analysis.

If we go to page 16A of the appendix to our cert petition, it states at the bottom of that first paragraph:

"On appeal, the burden lies on the government to prove that a reasonable jury would have reached the same verdict without the challenged evidence. "

That's the question they are asking.

That question doesn't--

Justice Anthony Kennedy: But -- but in -- in the context of the opinion, and this was my first question, they then proceed to -- to analyze it and that's toward the very end of this discussion, what happened in this particular case.

And it concludes

"From this evidence we believe -- This evidence we believe would have moved the jury to convict. "

Mr. Brindley: --I think the problem is they asked that question, which I think is the wrong question.

Kotteakos says you can't ask that question because you can't strip the error from the whole.

That's the question they ask.

And to answer that question you don't have to consider the error.

Then I think it's important they didn't address the error at all; they didn't address its potential impact.

Despite that dissent which laid out that this is one of the most prejudicial errors you could have in a trial, they ignored it.

Chief Justice John G. Roberts: They say, immediately after the sentence you gave us, they say

"looking at the evidence as a whole. "

Mr. Brindley: They do say that.

But then later on in that same paragraph they indicate that: Here's what the evidence was.

And I think it's important that the only evidence they talk about is the government's evidence, and they talk about it in a way that views the evidence in the light most favorable to the government.

In their harmless-error analysis they don't address Mrs. Perez's testimony, and they -- the more important thing is they don't address the error at all.

They don't even disagree with the dissent's contention that it's this terribly prejudicial error.

Instead, they do what many of the courts below have been doing when they do this guilt-based approach to ask this question.

They focus on the government's evidence viewed in the light most favorable to the government and then find, well, he could be convicted on that basis by a reasonable jury.

Justice Stephen G. Breyer: You didn't -- you didn't read the whole thing.

I -- it's a little hard to understand.

And looking at the transcript on page 769, am I right?

I want to get my own understanding right.

At that moment your client's lawyer, who they call "Beau" -- is that right?

Mr. Brindley: Yes, that was me, Judge -- Your Honor, yes, it was me.

Justice Stephen G. Breyer: Okay.

All right.

Your client's lawyer, namely you--

[Laughter]

Mr. Brindley: Yes.

Justice Stephen G. Breyer: --has not yet seen the client, is that right?

They think he hasn't seen the client yet.

They say somewhere he hasn't even talked to him yet or something; he hasn't even talked to Beau.

He hasn't seen his lawyer yet.

They say that two paragraphs earlier.

So is that right, basically, that they think that, anyway?

You see at the top of the page, about six lines down, he hasn't even talked to the lawyer yet, he hasn't even talked to Beau.

Mr. Brindley: I think that actually what they are talking about was whether Mr. Perez's lawyer had talked to me, Mr. Vasquez's lawyer.

Justice Stephen G. Breyer: Oh, they're talking about the lawyer.

All right.

And what you are trying to do, as far as I can read this, is they think what you are trying to do is you want Perez to plead guilty.

Is that the fair thrust of this?

Mr. Brindley: There is some discussion between--

Justice Stephen G. Breyer: What do you think it means?

Mr. Brindley: --There's -- it's hard for me to tell exactly what--

Justice Stephen G. Breyer: All right.

So it's hard to tell what they are talking about, I grant you that.

I thought they were talking about trying -- that you thought it would be better if everybody got some kind of agreement worked out.

And then she says, Perez's wife: "How can I not worry"?

He says:

"I don't understand what's going on. "

--which is fair comment.

"But it's not the way, Beau. "

"He's putting it two different ways. "

"If he didn't explain to you the way, then, either -- then it's a different story. "

"If you don't ask him-- "

Then she says:

"Yes, he's saying that everybody's going to lose. "

"He's saying that, whatever he wants to say. "

"I don't believe it. "

By the time I got through reading that, I wasn't certain what they were talking about, and I thought it sounded like they were talking about: Let's all make an agreement or everybody's going to lose.

And -- that -- I could see that you could say that's prejudicial.

I could also see that the government could say it isn't prejudicial.

And it's -- it's pretty hard for me to read their opinion as thinking they were really not thinking about that error.

I mean that was -- or not an error.

I mean, of course they would be thinking about that; that was the issue.

And it says -- I read the opinion, they said, well, there's so much other evidence in the case, and in our opinion this is weak enough that it didn't -- wouldn't have made a difference.

And -- and if you didn't, say, take it for the truth.

And the other, dissenting judge, common, thinking: No, I don't know; you know, it's pretty hard to understand what it means, but there is an implication there the lawyer thinks he's guilty of some kind, and in context that might have made a difference.

So he comes to a different conclusion.

That's what I saw going on.

And I didn't see some big war of standards.

I just saw judges disagreeing about a fairly tough question in an individual case.

So what can you say to make me change my mind and think this is a war of standards that we ought to--

Mr. Brindley: --Well, because -- I think -- I think the most important thing is what I have already said, is the question they ask isn't about the error, and they don't address it at all.

And when you consider a dissent with that robust of language, the idea that they wouldn't address it at all is problematic.

Justice Stephen G. Breyer: --Okay.

So would it satisfy you in your opinion if we said we aren't finding your opinion totally clear?

And luckily people don't have the right to send cases back to us on that basis, but we have the right to send cases back to you on that basis.

And therefore we would like you to clarify whether you do or did or did not take in the actual transcript page there, when you reached your conclusion?

Mr. Brindley: I don't think that would be sufficient, because I think the important thing here is that they be required to ask the right question, to focus on this jury that heard the case.

Justice Elena Kagan: Well, Mr. Brindley, I think one difficulty -- and this is really repeating Justice Alito's question, but it seems that you are parsing things pretty closely.

If I ask the question whether an error altered the verdict, it seems to me I am asking pretty much the same question as whether without that verdict the -- whether without that error, the verdict would be the same.

That seems like just two ways of saying the same thing.

Now, if what you're saying is put aside that formulation, there are lots of courts that are doing something wrong, which is that they are not looking at the error and its possible prejudicial effect at all, then I understand the argument; but then I ask the question, well, is that what this court did?

Mr. Brindley: And I think that the -- by asking the question in that way and talking only about a reasonable jury absent the error, when you start saying absent the error and you start looking at the evidence without the error, you are looking at a case the jury didn't hear.

And I think that's the biggest problem.

If you are looking at a case the jury didn't hear, then the reviewing court sort of makes its own guilt judgment about a case they didn't hear.

Justice Samuel Alito: Look.

If you win your client will get a new trial.

Let's suppose that the new trial is exactly like the trial that took place.

Every single thing is the same except the error is corrected.

All right.

Isn't that essentially the harmless-error analysis?

Mr. Brindley: No, I don't think so.

Justice Samuel Alito: No?

Mr. Brindley: I don't think so, because I think if you do the analysis that way and you say the error is corrected, you don't take into account its impact.

The question has been to be whether it contributed to the jury's verdict, not whether the verdict would be the same in another trial.

That's where that Sixth Amendment problem that this Court was worried about all the way back in Kotteakos -- and even in Neder, where this Court said to safeguard the jury's province we have to do an exacting review of the entire record including -- that would include the error, obviously, and its impact.

And here this court didn't address the error or its potential impact, and I think--

Justice Antonin Scalia: Are you -- are you saying that it -- it doesn't matter that the verdict would have been the same by this jury if the error had not been made?

Mr. Brindley: --Yes, I am saying that.

I'm saying that the question--

Justice Antonin Scalia: You're saying that the test is whether it contributed to the verdict, and if it did it doesn't matter whether the same verdict would have been pronounced absent that evidence?

Mr. Brindley: --That is correct, Your Honor, yes.

Justice Antonin Scalia: Well then, what is harmless error?

Every error is harmful.

Every error that is there contributes to the verdict.

There is no such thing as harmless error.

Mr. Brindley: I think -- I don't think that should be the formulation of the test.

I think it has to have a -- what the government has to be able to do is prove to the necessary degree of certitude that the error doesn't substantially impact the verdict.

And the reason I--

Justice Antonin Scalia: What -- what does that mean?

To say that it doesn't substantially impact the verdict means the verdict would have been the same despite this evidence.

But you are saying no, that's not the test; you have to ask whether it contributed to the verdict.

The government says: Well, it did, but the verdict would have been the same anyway.

That's what harmless error is, it seems to me.

Mr. Brindley: --I think what the -- when you ask the question about whether the verdict contributed substantially to -- or, I'm sorry, whether the error contributed substantially to the verdict, what you are doing is you have to then look at the entire record and you have to look at the error's impact.

And when you do that you can make a determination whether there's anything in the record that would allow the government to prove to the right degree of assurance that it didn't.

Now, it could be the case that you look at all of the evidence and you can say: Well, in light of all the other evidence, the error was cumulative or it was essentially uncontested, and then you can find that error is harmless, it couldn't have contributed to the verdict, and we know that to the right degree of certitude.

I think the problem comes in when you are talking about this reasonable jury and whether they would convict without the error, that's some other trial.

Justice Sonia Sotomayor: Can we get a little more practical here?

I think I understood your basic argument, which is: My defense was by this one woman, the wife of one of the codefendants.

She tells a story and if the jury had believed her story they would have acquitted your client.

Mr. Brindley: Yes.

Justice Sonia Sotomayor: All right.

So I am assuming what you're saying -- and you can correct me if I'm wrong -- which is if we believe that the error committed affected her credibility in a meaningful way, that that deprived you of a defense.

Is that what you're saying?

Mr. Brindley: Yes.

Justice Sonia Sotomayor: Of the potential of convincing the jury.

Mr. Brindley: Yes, absolutely, in addition to the fact that the error -- if those things are taken for their truth, they serve as an independent basis for conviction, believing he's essentially confessed.

Justice Sonia Sotomayor: Now, assuming that's your argument, I go back to my question, okay.

Mr. Brindley: Yes.

Justice Sonia Sotomayor: Because what you said to me earlier, it wasn't about believing her or not; it was about believing the defense attorney when -- whether the defense attorney thought the defendant was guilty or not.

Mr. Brindley: I -- I think -- I think the two go hand in hand.

I think that if they take these statements for their truth, they could disbelieve her and the defense attorney who called her because the defense attorney knew he was guilty and then called this witness to say otherwise.

I think that would in that situation make it appear as if she wasn't telling the truth.

And I think the important thing about this whole analysis--

Justice Sonia Sotomayor: Let's -- let's--

Mr. Brindley: --Okay.

Justice Sonia Sotomayor: --Are you taking the position in this case that a reviewing court under no circumstance could conclude that this error was harmless?

Or are you taking the position in this case that the court here, the Seventh Circuit, I think, committed review error and we should send it back for them to do it the right way?

Mr. Brindley: I am first saying that the court committed review error.

But I think I'm also saying on top of that if you do the error properly, review properly in this case, as we've asked the test to be formulated, then what this case is going to come down to is really one question.

Justice Ruth Bader Ginsburg: And you are agreeing with the dissenting judge, who I think did say this error is harmful.

Mr. Brindley: Yes, of course.

Justice Ruth Bader Ginsburg: And so you are not saying that it's just that they didn't use the right formula, but you would say, given what occurred here, the importance of this witness, that -- that this was a harmful error?

Mr. Brindley: Yes, absolutely.

I think if you do the test appropriately and do the proper analysis focused on this jury and the potential impact of the error, then this is a harmful error.

Justice Stephen G. Breyer: Back to Justice--

Justice Anthony Kennedy: Because your argument is something like this.

Let's assume there are ten pieces of evidence.

Evidence 1 through 9 is properly admitted.

Evidence item 10 is, A, wrongfully admitted, and, B, so prejudicial that that's all the jury looked at.

There is a substantial likelihood of that.

I think this is your argument: If the jury was so obsessed, focused, transfixed by item 10, which was improperly admitted, what would happen if we concluded that this jury in this case on these facts if they had looked at 1 through 9 would have convicted?

What result?

Mr. Brindley: I think if you did the examination that way and didn't consider 10 at all, what you are saying is it's possible to convict on 1 through 9, but you are not considering the possibility you could convict as an independent basis on 10.

And the government would have to--

Justice Anthony Kennedy: We're not only saying it's possible to convict, but that likely probably would have happened.

Mr. Brindley: --I don't -- well, if the error is the error in this case, that's number 10, then I think when you consider the possible impact, sweeping as it might be, I don't think there is any way on this record that the government can prove with fair assurance that that didn't infect the jury.

Justice Anthony Kennedy: No, my hypothetical is that the court of appeals says that if the jury had looked at 1 through 9, which was properly admitted before them in this trial, they would have convicted, likely.

Then the hypothetical is: We don't think they did because this item was so prejudicial that that's all they looked at.

Is that what your argument is?

It seems to me that is stronger than the argument you are making.

I'm not sure even that works for you.

Mr. Brindley: I -- the formulation you've stated, I agree with that.

If number 10 is such that there is no way that they can prove that it didn't impact the jury verdict substantially -- and I don't think they can in this case -- then yes, that's our argument.

And the one reason I think it's most important in this case is because this case comes down to at the end -- we have -- you know, essentially it's a circumstantial case.

This isn't like Harrington or Schneble or the cases with direct evidence where this Court has found harmless error.

This is a case where the ultimate question is, if you believe Mrs. Perez is credible he is not guilty; and if don't he is.

And in order to find harmlessness you have to have a reviewing court on a cold record making that credibility determination, something that this Court has continually said a reviewing court is not in a position to do.

And when a case can be ground down to the point where it's going to come to a credibility determination about a witness the reviewing court did not see--

Justice Samuel Alito: Well, maybe the majority in the court of appeals was wrong in its application of the harmless-error test.

I don't think that's the reason why we took this, why we took this case.

What I'm concerned about is the test.

Now, the only aspect of -- the only thing that I understand that really differentiates your position from the government with respect to the test is whether the focus is on a rational jury or on this particular jury.

And when you say the focus should be on this particular jury, aren't you calling for a speculation by the -- by an appellate court?

How is an appellate court supposed to tell whether this particular jury was different from a hypothetical rational jury?

Mr. Brindley: --Because this -- the reviewing court has to look at everything in the entire record.

That includes in this case the jury note.

It includes in this case the split verdict, all of those things.

And when you look at all of those things you can get insight into the jury that heard the case and how they viewed it.

You can also look at how a reasonable jury would view the case as heuristic device to get back to what this jury thought.

But--

Justice Ruth Bader Ginsburg: I thought -- I thought your main point, as you said "this jury" rather than a hypothetical jury, I thought your main point is that what's wrong is to say, strip out the infected testimony, take that out, look at the rest of the record and if the rest of the record warrants conviction no harmless error.

I thought that what you were saying is that the basic mistake is what are they looking to, are they looking to all of the evidence, or are they just asking the question, let's take out the tainted evidence and see if there's enough to convict?

Mr. Brindley: --Yes.

Yes, Your Honor.

I agree with that.

The problem is the question asked by the majority strips out the error and it also focuses on the reasonable jury rather than this jury.

And with that, if there aren't any further questions, I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you,--

Mr. Brindley.

Mr. Yang.

ORAL ARGUMENT OF ANTHONY A. YANG ON BEHALF OF THE RESPONDENT

Mr. Yang: Mr. Chief Justice, and may it please the Court:

The harmless error inquiry, as this Court explained in Neder and prior decisions, turns ultimately on one question: Whether a rational jury -- and this is a quote -- whether a rational jury would have found the defendant guilty absent the error.

Now--

Justice Elena Kagan: Mr. Yang, that does raise the question that I think most separates you and Mr. Brindley, and it's the question that Justice Alito suggested.

So let me give you a hypothetical.

Let's say that this jury was not out for eight hours, but was out for eight days.

And on the seventh day a note came from the jury, and the note said: We really think that these tape recordings are extremely important, but we're -- we're having a dispute about how important they are, and we would like to listen to them again.

And they do that, and then they come back with this compromise verdict.

Now, what you're suggesting is that we cannot look at any of that.

Essentially, the best proof that's available to us about whether the error in fact affected this jury's decision, you would have a court close its eyes to.

And I guess -- why would that be?

Mr. Yang: --Well, I don't believe our view is quite so firm.

I think as a general matter our view is that indications mid-deliberation of what a jury might or some subset of the jury might be considering is generally very unreliable.

And that in your case, the Court shouldn't shut its eyes to that question, but what it should do is redirect the court back to the evidence that was before the jury.

Because if we are assuming a rational jury, there often is some correspondence; it should be an indication to go back and look again.

If the Court were to conclude, wow, the evidence was so overwhelming, so overwhelming that no rational jury would have, you know, had a problem with convicting absent the error, it's very unlikely that the situation that your hypothetical poses would result.

Justice Elena Kagan: So let me make sure I understand what you are saying to me.

You are saying to me: No, we didn't mean to say that that was irrelevant; we just mean to say that an appellate court should be cautious about it and look at that kind of evidence in the -- in light of everything else that happened at the trial.

Mr. Yang: Ultimately the appellate court should look back at what the jury was supposed to consider, the evidence in light of the instructions.

It should be a cautionary note, but ultimately should redirect the court back to the evidence.

And I think that focuses on again one of the two related legal points that Petitioner made in argument that I think there's real disagreement between the government and Petitioner on: One, the inquiry of a reasonable jury or a rational jury, which is the government's view, versus this particular jury; and the related claim that the inquiry is how this influenced the deliberative process, if it was like a factor that this jury might have considered in reaching its verdict--

Justice Sonia Sotomayor: I don't know how to separate out an admitted error situation.

And let me explain why, okay?

Let's assume the facts of this case, but instead of this tape recording the improperly admitted evidence was a confession by the defendant.

Would you be prepared to say that in a circumstantial case of guilt -- now, we've already said that confessions are one of the most powerful pieces of harmful error -- that in this, in a confession, that somehow this was still harmful -- harmless?

Mr. Yang: --Are we taking Marina's testimony out now?

Justice Sonia Sotomayor: Yes.

Yes.

Mr. Yang: Okay.

If Marina's testimony was not in and you had the evidence here -- now, an unconstitutional confession, of course, would raise the bar, right?

We're going to--

Justice Sonia Sotomayor: That's a different standard.

Let's, let's talk about it under the Kehoda standard.

Let's talk about the standard we are assessing.

Mr. Yang: --If all you are asking is fair assurance, then I think you could get to the same result here, because when you take Marina's testimony out of the picture, there was really no defense at all.

What the government had was a strong case--

Justice Sonia Sotomayor: No, no, no.

He testifies, but he testifies to everything Marina said.

Meaning, he -- when I used the word "confession", I'm sorry, I misspoke.

He takes the stand.

He -- or doesn't take the stand.

He says everything he said to the police.

And that confession that he was there--

Mr. Yang: --So he testified to the substance of Marina's testimony, that he happened to just drive there?

Justice Sonia Sotomayor: --She called him, etcetera.

Mr. Yang: Right.

And then the error is the same error?

Justice Sonia Sotomayor: It was improperly admitted, without Miranda warning.

Mr. Yang: The tapes?

Justice Sonia Sotomayor: Not the tapes, just the story.

Mr. Yang: I'm a little confused.

Justice Sonia Sotomayor: All right.

Mr. Yang: Because if he's testifying in court, the government is not putting him on.

He's going on as -- there is no Miranda question or anything.

Justice Sonia Sotomayor: My hypothetical is not working for this reason, and I understand what you are saying.

It's hard to identify a comparable mistake.

But my point is that -- doesn't the harmfulness of the error sort of vary with the strength of the government's case.

Mr. Yang: Undoubtedly.

I think that's right.

Now, let--

Justice Sonia Sotomayor: If he had not run away, and the tapes were admitted--

Mr. Yang: --We would have a weaker case, and it would be -- ultimately these lines that the Court has to draw between a fair assurance or harmless beyond a reasonable doubt are guides to reasoned judgment by the court of appeals.

The Court has repeatedly recognized that this is a reviewing court's judgment based on the record.

Justice Sonia Sotomayor: --Exactly.

And what the defense said was -- there is only one defense here, and it's the wife's defense that he was there by accident, not intentionally.

There was a lot of countervailing evidence to disprove that, but the question is could a reasonable jury have -- might have or could have credited that defense?

Mr. Yang: Well, I'm not sure that that's Petitioner's view.

I mean, there's two aspects to this case.

We can talk about the fact-findings and the ins and outs of that, which is interesting in its own right.

But I think one of the key legal questions for the Court is what's the standard that the Court must apply.

And there is a real difference between the Petitioners and the government here.

And that standard the Petitioner has advocated is that this jury, as opposed to the reasonable jury, and that looking at this jury you must look at the thought process of this jury to decide whether the error might have had some influence.

Justice Sonia Sotomayor: Sure.

You look at how the case was tried.

Mr. Yang: Well, no, but I think the position about this jury versus a rational jury in looking at the deliberative process is entirely foreclosed by this Court's decision in--

Justice Ruth Bader Ginsburg: But, Mr. Yang--

Justice Elena Kagan: Well, you just told me it wasn't, Mr. Yang.

Because -- because I think that the reason why this jury versus a reasonable jury is important is whether you are going to take into account what you know about what this jury did: How long it stayed out, what notes it wrote to the court, what eventual verdict it reached.

And you just suggested to me that that was fair game to consider in this analysis, although one should be cautious about doing it.

Mr. Yang: --I should qualify that.

I didn't intend to give the Court the misconception that we are looking at this jury.

The ultimate question is whether a rational jury would have convicted absent the error.

Justice Elena Kagan: Well, a rational jury is not the jury that I said stayed out for 8 days and sent back a note on the seventh day.

That's this jury.

Mr. Yang: And -- And the reason that I believe that the Court can use that as a benchmark to look back at the evidence is it is some indication of perhaps what the evidence should be saying to a rational jury.

But the ultimate question is the rational jury.

And let me give you a few examples from the Court's case law, because I think this really puts it beyond dispute that the real question is the question of a rational jury, what they would do absent the error.

First, in Neder the Court explained that erroneous admissions of evidence or exclusions of evidence, just like an erroneous instruction on an element of the offense, or failure to instruct on a necessary element of the offense, as was the case in Neder, will infringe on the jury's fact-finding role and will affect the deliberative process in ways that are not readily calculable.

The error in Neder was that the jury was instructed not to consider the question of materiality, which was an essential element of the defense.

And the Court specifically rejected that the question -- that the fact that this jury didn't actually make a finding based on the evidence was not -- did not foreclose harmless-error analysis.

Justice Ruth Bader Ginsburg: --Going back then to your position in your brief where you said that you would not include in the harmless error calculus that the jury requested to hear Marina's testimony again, the length of their deliberations, the divided verdict.

You said in your brief at pages 32 to 35 that you would not include those.

Mr. Yang: That's right.

Those types of indications are entirely unreliable.

Justice Ruth Bader Ginsburg: But I think you answered Justice Kagan that you could take them into account, the Court could take them into account but cautiously, not give them -- not give them undue weight.

Mr. Yang: What I think the Court should do is when you have a -- what is a much better indication, or at least a -- of what this jury might have been doing, you use that as a reason to go back and look again at the evidence.

It's also--

Justice Anthony Kennedy: Suppose you have a case in which after the verdict of guilty there's a motion for a new trial, and it's being heard by the trial judge, and the trial judge said: I now acknowledge that this court committed error in introducing item 10 in evidence.

And the court remembers that when this came into evidence, the courtroom was quiet, the jury was transfixed, jurors were weeping.

This was the high point of the trial.

That's wrong for the judge to say.

All he has to say is: Well, I have to ask whether items 9 -- 1 through 9 would have been in some other jury, the rational jury, so that's the end of it.

Judges do the -- do what I suggested all the time.

Mr. Yang: --Well, we think that, again, the inquiry that needs to be focused on is what a rational jury would do.

And let me give you an example--

Justice Elena Kagan: That's starting to look, Mr. Yang, very much like a directed verdict for the government on the part of the judge.

Because you are so abstracting it from this case and this jury and what this jury's reactions to everything that happened was that, you know, why not just go to the directed verdict?

Mr. Yang: --This Court has repeatedly rejected that.

The reason it's not a directed verdict is because you have a jury verdict.

You have a jury verdict that beyond a reasonable doubt, that the jury has factually determined that this defendant is guilty of the offense charged, on proper instruction.

Then the question is: What remedy do you have?

Justice Elena Kagan: You do have a jury -- Excuse me.

You do have a jury verdict, but you are giving us a formulation of the test that essentially pretends that the jury is not there, and that we know nothing about how it reacted to various things.

Mr. Yang: The reason -- This I think can be answered if I could just get out a few of the Court's cases, because I think this shows the Court's rationale here and shows that our view has to be the right view.

For instance, in a series of cases this Court has concluded that the unconstitutional admission of a confession, either of the defendant or the co-defendant, can be harmless when there is overwhelming evidence such that a rational jury would convict without the evidence.

Now, if we are looking at what a jury would have considered, whether they were brought to tears or whatever, when you are talking about a confession there is no doubt that a rational jury or any jury is going to have that far in the forefront of their minds when they are deciding guilt or innocence.

But the question--

Justice Sonia Sotomayor: Counsel, I just don't see how you can do it without the error.

I keep going back to this point.

How about if the prosecutor had done in summation the following: Ladies and Gentlemen, whatever the wife told you disbelieve because the lawyer said he was guilty.

Mr. Yang: --I'm sorry, I just--

Justice Sonia Sotomayor: The lawyer -- the prosecutor got up at the end of trial and said: Disbelieve everything the wife told you, because the lawyer said the defendant was guilty.

All right?

I'll go through all the other evidence I have that might prove that she was not telling the truth, but the central, most important piece of evidence in this case about his guilt is that the lawyer said he's guilty.

Can you say that this jury was uninfluenced by that error?

Mr. Yang: --No.

Justice Sonia Sotomayor: Because under your formulation--

Mr. Yang: No.

You can't--

Justice Sonia Sotomayor: --A rational jury would have convicted absent the lawyer saying that.

Mr. Yang: --That's right.

But this Court has repeatedly said, for instance in Rose, where the question was the jury was told to presume certain malice in a homicide: The fact that the error may have altered the basis on which the jury decided the case is not the question; you look to the reasonable juror.

Similarly in Pope, the Court said: The question does not turn on whether the jury did not, in fact, have this error in mind when it found the defendant guilty beyond a reasonable doubt, because--

Justice Ruth Bader Ginsburg: You would -- you would take into account that the prosecution apparently thought this was important, so important.

The trial was over.

The prosecutor said: Judge, I'd like to come back so these tapes can be introduced.

The -- we have the witness testifying that defendant was there by chance; he was not part of the scheme.

We have no direct evidence, because Cruz never spoke to this defendant, to Vasquez.

He's at the scene, we know that.

And an explanation, an innocent explanation, is given why he's at the scene.

And then the government comes back after everything is done, and says: We want the jury -- we want these tapes to be before the jury.

Isn't that -- don't we take into account that the government itself thought this was very important?

Mr. Yang: --I -- I think it's a factor that you consider again in directing the Court's look at really what the trial evidence was.

I mean it I think, belies the facts of this case.

Obviously that's a hypothetical.

But when you look at how cases really develop, prosecutors don't focus on a fleeting, you know, sentence in a series of -- series of long tapes that weren't transcribed--

Justice Ruth Bader Ginsburg: But my point to you is it wasn't fleeting.

If the government says: We want to extend the trial so that we can play these tapes, all of them, and they contain not just the one statement, there's the one statement that the trial will be bad, a trial will be bad for all of them, and they ought to -- so they should take a--

Mr. Yang: --I think when you look at what happened at trial, you see that the tapes were played for two reasons: One, to show that Marina had bias because she was told by Petitioner's counsel, the Petitioner's counsel who she thought this, Petitioner's counsel would be able to make motions and arguments on behalf of her husband at sentencing.

Justice Sonia Sotomayor: The dissent pointed out that she admitted that before the tapes were played.

Mr. Yang: Correct.

Justice Sonia Sotomayor: That she was testifying in the hopes of getting a lesser sentence for her husband.

So she -- the tapes weren't necessary for that.

Mr. Yang: Corr -- Well, the tapes certainly were reinforcing of that.

And in fact when the government's closing argument -- it did not reference anything about this -- what I think you and Justice Breyer correctly identified as a very ambiguous sentence in a series of long tapes.

Remember, these transcripts that are in the record are only one portion of the tapes.

Justice Sonia Sotomayor: What was your second--

Justice Ruth Bader Ginsburg: --What was the line that the government, the prosecutor, repeated three times while she was on of the stand, the exact lines.

Mr. Yang: The exact lines?

Justice Ruth Bader Ginsburg: Yes.

The government thought it was important for the jury to hear it, because they said it three times.

Mr. Yang: Well, to be fair I think you need to look at what is before and after it.

The government is focusing on three different statements that are at issue in the case.

The first one is that, with some profanity, suggesting that her husband is not likely to succeed at trial.

The second one is that defense counsel suggested -- that she said that defense counsel suggested that everybody was going to lose.

And then third, she thought everybody was in, again with profanity, I'm going to paraphrase, a bad situation.

Justice Antonin Scalia: Why does any of this have to deal with her credibility?

Did the dissent say that the way this affected the jury was that it rendered her less credible?

I thought that--

Mr. Yang: The--

Justice Antonin Scalia: --the dissent just said: It's bad to tell the jury that even the defendant thought he was guilty, or even the defendant's lawyer thought he was going to lose.

Mr. Yang: --The reason that this was in -- and I don't -- it's not contested here -- is because the argument was made that these statements equating Petitioner and Perez in terms of their level of guilt or their likelihood of being convicted is inconsistent with Marina's subsequent testimony that all of us, you know, Vasquez just -- or Petitioner just showed up unknowingly because she asked him.

That was the theory.

It's not contested, and in fact nothing that the jury heard in this case under Petitioner's theory would be different.

The only difference would be a limiting instruction that would simply say you can't take these statements for the truth of the matter.

So nothing that the jury heard would have been different.

When you read the short passage in the context of these tapes -- and the tapes again are not fully transcribed.

Petitioner asked for the entire tapes to come in.

At the tail end of the trial, which -- which was based on the government's showing that was uncontested that Petitioner was at the scene, he drove the $23,000 there, he waited with Perez and Cruz while the informant was coming back, he was there when the call was made to the informant that said they had the money.

Now, there is some dispute of whether he said that, but certainly he was there when that call was made because that is what triggered the raid.

All of that was basically undisputed.

You have got all these calls that tie Petitioner to Perez -- to Perez, 27 calls--

Chief Justice John G. Roberts: You are going over the evidence.

And I may simply be asking the same question Justice Kennedy asked earlier.

But let's say you have a situation where it's the same thing, and at the -- you, know, and improperly admitted evidence has the defendant saying:

"I'm guilty. "

"I'm guilty. "

And the evidence is the same as all you've set forth at pages 2 through 9, very complicated, who's driving what, you know, kind of car and where they are meeting.

And the jury goes out and comes back in two minutes: You know, the guy said he was guilty.

Is that a situation in which we are supposed to then go back, look at all the complicated evidence and see if a jury would have convicted?

Or can we with a fair degree of confidence say that the error is what led the jury to convict?

Mr. Yang: --Well, I think the former, but let me explain.

And again, I'm going to go back to Neder, if I may, for a second.

In Neder, the jury never found an element of the offense.

Never did.

There's no question that the jury's verdict was affected by the failure to instruct.

In fact, it was not just a failure to instruct.

The district court told the jury this is not for them to consider.

And--

Justice Elena Kagan: But critical to the Court's view in that case was that the -- the defendant could not have contested that element.

Mr. Yang: --Well, but if we're -- again, if we're focusing on the legal dispute between us and the other side about whether we're looking at this jury or what a rational jury would do when you excise--

Justice Stephen G. Breyer: Well, I would like very much to know what your answer is to Justice Kennedy's hypothetical and the Chief Justice's.

As I understand those hypotheticals, they're trying to imagine a case--

Mr. Yang: --Right.

Justice Stephen G. Breyer: --where a particular piece of improperly admitted evidence -- we know from how the jury reacted, or the kind of evidence -- it's the kind of thing that could really make a difference.

I mean, they were in tears, et cetera.

Mr. Yang: And--

Justice Stephen G. Breyer: All right.

Now, in my reading of this, which I once had to read about 100 harmless error cases, and it seemed to me -- and you can confirm or deny this -- that in cases like that, the judge who knows this is a tough case when the jury's feeling this way, asks himself or herself the question,

"could this illegally admitted evidence make a difference? "

"Could it have made a difference in this case? "

"Could it have? "

And the answer is going to be no where that judge thinks a reasonable jury would not have thought it made a critical difference.

And that's just putting the same thing I think slightly differently.

But the answer in Justice Kennedy's case would be a judge just isn't going to think it has nothing to do with rationality.

If the jury's in tears, they're going to think it's a close case.

And therefore, if in fact this could have made a difference, the judge says, yes, it's not harmless.

And if the judge thinks no, it couldn't have made a difference to any rational person, he's going to say harmless.

Period.

Now, that was my impression reading those cases.

And I felt that those hypotheticals were getting at that.

And -- use them.

Answer them rather than me, because that's what I'm interested in.

[Laughter]

Mr. Yang: --The answer is that in a case where the jury, where you have some very provocative evidence, but there's also a very strong case that exists -- it may defend -- depend on the level of certainty that you need to get to, whether it's fair assurance or harmless beyond a reasonable doubt.

But even in those cases, you can -- the Court looks at the evidence as a whole and says that -- there was so much evidence before this stuff came in, this bad -- this error came in, that a rational jury would have gotten to the same result and it would have convicted.

Then--

Justice Anthony Kennedy: Suppose -- suppose the judge concludes that both this jury that I had, and some hypothetical rational jury would have been so focused on this evidence that that's all they would have looked at, but if they had looked at 1 through 9, the admissible evidence, they would still have found guilt.

Is that -- is that what you're -- is that a -- a proper application of the -- of the framework?

Mr. Yang: --I think so.

But let me give you an example.

It's not, again, what a -- what this particular jury was doing.

Because we know, for instance, for Neder or in the confession cases, the jury hears a confession, an unconstitutionally obtained confession -- unconstitutionally admitted, from the defendant.

That is going to be -- right there.

You know?

A jury -- a juror could say, let's go home, we have a confession.

It's out of his own mouth.

There's very little else to debate.

But when the evidence is beyond that confession, so overwhelming that no rational jury would have gotten to a different result and you can say that with a fair assurance, or if there's a constitutional error that would be with a confession beyond a reasonable doubt, the Court says that this is harmless.

And the reason that the Court's taking that inquiry is because it recognized -- the Court's long recognized that no trial is perfect, that there are very significant costs of retrial.

And so the--

Justice Ruth Bader Ginsburg: So you -- you are essentially saying, as I understand you, that -- if there was such a thing as a directed verdict in a criminal case, if the judge would say, you know, I will direct a verdict here because there's only one way a rational -- rational jury could come out.

Mr. Yang: --This -- this -- that argument was specifically rejected by this Court in Neder.

The same question came up, and in fact, Neder is a much -- more difficult case for the government than this, because at least in Neder, the defendant had the argument that this jury could -- did not find guilt beyond reasonable doubt because it was never instructed to find an element of the offense.

Justice Samuel Alito: Mr. Yang, you may be taking a harder position than you really need to.

Why shouldn't the rule be that the -- the appellate court should look at what would be done by a rational jury, except in the kind of extraordinary circumstances that have been posited by Justice Kagan's hypothetical and a few of the other questions, simply because it's so difficult to determine what a -- what the jury was actually doing.

We have a rule that prohibits consideration of what goes on in the jury room.

But suppose we didn't have that.

Suppose that it was all videotaped, and the jury didn't know what was going on, so you could -- you could watch it and see.

If that were the case, then surely the rule would be what would this jury have done?

But most of the time, it's just speculation to tell what a jury -- what they did -- did they come back quickly?

Well, that shows that this evidence was so bad that it caused them to render a quick verdict in what otherwise would have been a difficult case.

Did they take a long time?

Well, it shows it was a close case, and therefore, any error might have tipped them one way or the other.

You just can't tell.

Mr. Yang: I'm -- I don't want to resist this too much, because I think we're fighting about things at the very extreme.

Most of the times that we're talking about these purported indications from the jury, it's entirely ambiguous.

And the -- so there may be well be extreme examples.

And I think those would rightfully influence a court's consideration in a case.

But again, when you have harmless error cases in which we know for a certainty, as in Neder, that the jury did not find an element of the offense, the inquiry has to be -- it has to be on what the Court has repeatedly said in -- this is I believe on pages 19 of our brief -- that the focus of the harmless-error inquiry is bringing the Court's attention to the fact that the primary purpose of a trial is the factual question of guilt or innocence.

Justice Elena Kagan: And you would need--

Chief Justice John G. Roberts: Counsel, when you began, if I'm remembering correctly, you said there were two ways in which your position was different from Mr. Brindley's.

Mr. Yang: Right.

Chief Justice John G. Roberts: One I understand is that you look at a rational jury--

Mr. Yang: That's right.

Chief Justice John G. Roberts: --and not the particular jury.

What's the second?

Mr. Yang: Well, it's related.

His focus on the particular -- this jury I believe is seeing whether there's some influence on the process -- deliberative process even if the outcome would have been the same absent the error.

So he's kind of trying to get into the minds of the jury.

And this Court has repeatedly rejected that.

Justice Elena Kagan: --Can I ask you a different question, Mr. Yang, which is, you know, this difference in the formulation of the test -- which I find it hard to wrap my mind around, but and -- it strikes me that there's two different ways of saying the same thing.

But I'm told that there's a fair bit of scholarship out there which suggests that courts that use one formulation tend to come out one way, and courts that use the other formulation tend to come out the other way.

And I'm just wondering what your view of that is, that somehow, one formulation seems to put the emphasis on the entire case.

Whereas the other formulation seems to put the emphasis on only the government's evidence, and that that makes a difference in the end.

Mr. Yang: We don't think that there is this deep -- there are some disagreements or some things we disagree about what did a court of appeals do in particular cases.

But with respect to this formulation of the -- I think Petitioner calls it the "guilt-focused versus effect-of-the-error-focused approaches", the scholarship, I think he relies principally on Judge Edwards' opinion about harmless error.

That came out in 1995, when it was already swimming against -- upstream against this Court's harmless-error decisions.

But he had in his pocket the Sullivan decision, which was admittedly a structural-error case, but there was language in Sullivan which suggested that you need to look at what this particular jury was going to do.

Then you have Neder and -- I can't pronounce this very well -- but Recueno.

It's the -- the Apprendi application of Neder, which specifically reject this kind of broad approach -- logic in Sullivan as being inconsistent with the Court's harmless error cases.

Now--

Justice Ruth Bader Ginsburg: You do agree -- you do agree that the government has the burden of showing that the error is harmless?

Mr. Yang: --Yes.

Justice Ruth Bader Ginsburg: The government's burden.

And you also agree that we -- we should look at the evidence in the light most favorable to the defendant in making--

Mr. Yang: No.

The Court, even in -- I think most recently, the Court explained in Shinseki, talking about Kotteakos, that you don't use these kind of presumptions or rigid rules.

And the reason that you do this -- you're kind of looking from the perspective of a reasonable jury.

The jury has in fact found the defendant guilty beyond a reasonable doubt, and then the question is, are you setting aside that verdict because -- do you think that this error was the thing that tipped the scales from not guilty to guilty?

And so taking a look at the evidence, kind of all presumptions favoring one side or the other, is not how this Court has conducted--

Justice Ruth Bader Ginsburg: --So what does it mean that the government has the burden?

What does the government have to do.

Mr. Yang: --The government has to show, as -- this is the formulation in Neder, and which the Court has said in Neder is the same thing that applied in erroneous admissions or exclusions of evidence; that a rational jury would have found the defendant guilty absent the error, and that involves the three core elements we explained in our brief.

And then the Court takes into--

Justice Ruth Bader Ginsburg: The absent error.

So that means -- wait.

You look at just the evidence that's not tainted?

Mr. Yang: --In some cases you can do that, where the evidence is so overwhelming -- if I -- if I may finish.

Chief Justice John G. Roberts: Briefly.

Mr. Yang: Briefly.

In some cases, you might do that.

In other cases where it's closer, the evidence is not so strong, you look to -- look at the error to see if that error was going to be a dispositive think in getting to guilt.

Justice Anthony Kennedy: The Chief Justice allowed me to ask one question.

Can I amend your statement so that you would say a rational jury in all the circumstances of this case given what this jury heard, would have?

Mr. Yang: Yes.

It's -- in the position of this jury, based on the evidence presented to the jury, correct.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Brindley, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF BEAU R. BRINDLEY ON BEHALF OF THE PETITIONER

Mr. Brindley: I first want to address Neder, which the government counsel continually referenced.

Neder talks about the reasonable jury, but Neder also limits itself to situations where the evidence is uncontroverted and inconvertible.

I think because in those situations the difference between the reasonable jury and this jury would be deemed to be nonexistent, because it would be impossible for the error to have an impact.

Secondly, I think it's important to note from Justice Sotomayor's hypothetical, if you don't consider the error, then even that extreme case, that would have to be ignored.

And so I think the government's formulation, and the formulation used by the appellate court below, would justify -- would lead to that bad conclusion.

I also think that when you do that formulation, where you are talking about the reasonable jury and absence of error, the reason those cases come out different is because those courts think they don't have to address the error, which is I think what happened in the majority below, why they didn't address it despite the dissent.

The other thing I think is important to note is, the reason you have to look at the error and its possible impact and not just whether you could be convicted on the other evidence is because you say, well, he could be convicted on the other evidence; if that's all that you are saying and -- and it's not -- on the -- evidence which could independently in this case could be a reason to convict, then I think you are making that guilt determination that this Court says is not supposed to happen.

And I think the majority's opinion below is consistent with that approach and there's nothing in it to suggest that's not exactly what they did.

I also think that in the end, there was a mention of a limiting instruction; a limiting instruction would have cured this problem.

We assume juries would follow it.

That means they wouldn't concluded that his lawyer thought him guilty and then put Mrs. Perez on the stand and concluded she wasn't telling the truth.

What this error allows, what if taken for its truth a jury could believe that he confessed to his lawyer, they could disregard everything that was said on his behalf.

They could say we know that he is guilty; his lawyers knew he was guilty; we can convict him on that basis.

That's an error that can infect the entirety of the proceedings.

And if you look at this jury and what they heard, and the question comes down to whether Mrs. Perez is credible or not, there is nothing in this record the government can point to that would allow a reviewing court to make that determination.

A reviewing court that didn't see--

Justice Samuel Alito: Did the panel majority in -- did the panel majority in this case say anything that differs from what this Court has said about harmless error?

If -- if we were to reverse, what would we point to in the panel majority's opinion that was erroneous?

Mr. Brindley: --I think you would point to that first statement of the test where they say whether the reasonable jury would convict him absent the error, because Kotteakos says you can't strip the error out.

This Court has never overruled Kotteakos.

The other thing--

Justice Samuel Alito: Hasn't -- hasn't this Court said exactly what Seventh Circuit said there?

In other cases?

Mr. Brindley: --This Court has used, I think, dicta that has language of that sort.

But in those cases, what the Court does, like in Harrington they look at what the error was; they put it in the context of the whole case, and they can say the government could prove the jury didn't look at this to the right degree of assurance, because it was cumulative, because -- there's no -- there's nothing--

Justice Samuel Alito: You want us to say -- you want us to say we're reversing you, Seventh Circuit panel, because you said what we have said in prior cases, but we were wrong?

Mr. Brindley: --I think the reason to reverse them is because that formulation has proven to lead to the wrong analysis, in all of these lower courts, this guilt-based approach; and it is not the law of Kotteakos.

This Court has never overruled Kotteakos, and to focus on it allows a guilt determination by a reviewing court that would be violative of the Sixth Amendment that this Court was concerned about in Kotteakos, that this Court was concerned about in Sullivan, that this Court was even concerned about in Neder, outside the scope of cases where the evidence is uncontestable.

Because if you took these statements as true, and then you came down to a question well, is Marina credible or not, Mrs. Perez, there is nothing the government could do on this record to prove that the jury would have found her credibility differently because this Court can't figure it out on a cold record.

It said so many times.

It's not possible to do, especially in a case that is based on circumstantial evidence like this one.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

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Justice Elena Kagan: In Case Number 11-199, Vazquez versus United States.

We have issued a unanimous per curiam order dismissing the writ of certiorari as improvidently granted.