{\rtf1\ansi \deff4\deflang1033{\fonttbl{\f4\froman\fcharset0\fprq2 Times New Roman;}{\f7\fswiss\fcharset0\fprq2 MS Sans Serif;}}{\colortbl;\red0\green0\blue0;\red0\green0\blue255;\red0\green255\blue255;\red0\green255\blue0; \red255\green0\blue255;\red255\green0\blue0;\red255\green255\blue0;\red255\green255\blue255;\red0\green0\blue128;\red0\green128\blue128;\red0\green128\blue0;\red128\green0\blue128;\red128\green0\blue0;\red128\green128\blue0;\red128\green128\blue128; \red192\green192\blue192;}{\stylesheet{\f4\fs20 \snext0 Normal;}{\*\cs10 \additive Default Paragraph Font;}}{\info{\author n}{\creatim\yr1997\mo6\dy23\hr15\min54}{\version1}{\edmins2}{\nofpages0}{\nofwords0}{\nofchars0}{\vern49213}} \ftnbj\aenddoc\hyphcaps0 \fet0\sectd \linex0\headery709\footery709\colsx709 {\*\pnseclvl1\pnucrm\pnstart1\pnindent720\pnhang{\pntxta .}}{\*\pnseclvl2\pnucltr\pnstart1\pnindent720\pnhang{\pntxta .}}{\*\pnseclvl3\pndec\pnstart1\pnindent720\pnhang {\pntxta .}}{\*\pnseclvl4\pnlcltr\pnstart1\pnindent720\pnhang{\pntxta )}}{\*\pnseclvl5\pndec\pnstart1\pnindent720\pnhang{\pntxtb (}{\pntxta )}}{\*\pnseclvl6\pnlcltr\pnstart1\pnindent720\pnhang{\pntxtb (}{\pntxta )}}{\*\pnseclvl7 \pnlcrm\pnstart1\pnindent720\pnhang{\pntxtb (}{\pntxta )}}{\*\pnseclvl8\pnlcltr\pnstart1\pnindent720\pnhang{\pntxtb (}{\pntxta )}}{\*\pnseclvl9\pnlcrm\pnstart1\pnindent720\pnhang{\pntxtb (}{\pntxta )}}\pard\plain \f4\fs20 {\f7\fs17 \par }Nos. 94-1933 and 94-9078 \par \par In The Supreme Court of The United States \par \par OCTOBER TERM, 1995 \par \par TADEUSZ SOBIECKI, PETITIONER \par \par v. \par \par UNITED STATES OF AMERICA \par \par EWA BROZEK-LUKASZUK AND LESTER LUKASZUK, \par PETITIONERS \par \par v. \par \par UNITED STATES OF AMERICA \par \par ON PETITION FOR A WRIT OF CERTIORARI \par TO THE UNITED STATES COURT OF APPEALS \par FOR THE SEVENTH CIRCUIT \par \par BRIEF FOR THE UNITED STATES IN OPPOSITION \par \par DREW S. DAYS, III \par Solicitor General \par \par JO ANN HARRIS \par Assistant Attorney General \par \par J. DOUGLAS WILSON \par Attorney \par \par Department of Justice \par Washington, D.C. 20530 \par (202)514-2217 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par QUESTIONS PRESENTED \par \par 1. Whether any error in the jury instructions on \par the elements of a violation of 8 U.S.C. 1324(a) (1) \par (B) was harmless. \par 2. Whether the indictment adequately charged \par petitioner Sobiecki with a violation of 8 U.S.C. 1324 \par (a) (1) (B). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par TABLE OF CONTENTS \par \par Page \par \par Opinion below . . . . 1 \par Jurisdiction . . . . 2 \par Statement . . . . 2 \par Argument . . . . 6 \par Conclusion . . . . 16 \par \par TABLE OF AUTHORITIES \par \par Cases: \par \par Arizona v. Fulminante, 499 U.S .279 (1991) . . . . 12 \par Capella v. California, 491 U.S. 263 (1989) . . . . 5, 8, 9 \par Hamling v. United States, 418 U.S. 87 (1974 ) . . . . 15-16 \par Harmon v. Marshall, No. 94-55733 (9th Cir. June \par 9, 1995) . . . . 13 \par Ianniello v. United States, 10 F.3d 59 (2d Cir. \par 1993) . . . . 12 \par Pope v. Illinois, 481 U.S. 497 (1987) . . . . 8 \par Rose v. Clark, 478 U.S. 570 (1986) . . . . 8, 9 \par Sanstrom v. Montana, 442 U.S. 510 (1979) . . . . 8 \par Stirone v. United States, 361 U.S. 212 (1960) . . . . 16 \par Sullivan v. Louisiana, 113 S. Ct. 2078 (1993) . . . . 5, 9, 10 \par Teel v. Tennessee, 498 U.S. 1007 (1990) . . . . 11,12 \par United States v. Chavez-Palacios, 30 F.3d 1290 \par (10th Cir. 1994) . . . . 6 \par United States v. Diaz, 936 F.2d 786 (5th Cir. \par 1991) . . . . 6 \par United States v. Dotson, 895 F.2d 263 (6th Cir.), \par cert. denied, 498 U.S. 831 (1990) . . . . 12 \par United States v. Gaudin: \par 997 F.2d 1267 (1993), aff'd in part, rev'd in \par part and remanded, 28 F.3d 943 (9th Cir. \par 1994) (en banc), aff'd, No. 94-514 (June \par 19, 1995) . . . . 13 \par 28 F.3d 943 (9th Cir. 1994) (en banc), aff'd, \par No. 94-514 (June 19, 1995) . . . . 12-13 \par \par (III) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par IV \par \par Cases-Continued: \par \par Page \par \par United States v. Hove, 52 F.3d 233 (9th Cir. \par 1995) . . . . 12 \par United States v. Medina-Garcia, 918 F.2d 4 (1st \par Cir. 1990) . . . . 6 \par United States v. Moreno, 561 F.2d 1321 (9th Cir. \par 1977) . . . . 6 \par United States v. 1982 Ford Pick-Up, 873 F.2d 947 \par (6th Cir. 1989) 6, 7 \par United States v. North, 910 F.2d 843, opinion with- \par drawn and superseded in part on rehearing, 920 \par F.2d 940 (D.C. Cir. 1990), cert. denied, 500 U.S. \par 941 (1991) . . . . 12 \par United States v. Stein, 37 F.3d 1407 (9th Cir. \par 1994) . . . . 12 \par United States v. Velasquez-Cruz, 929 F.2d 420 \par (8th Cir. 1991) . . . . 6 \par United States v. Whitmore, 24 F.3d 32 (9th Cir. \par 1994) . . . . 13 \par Yates v. Evatt, 500 U.S. 391 (1991) . . . . 9 \par \par Statutes: \par \par 8 U.S.C. 1324 (a) . . . . 3 \par 8 U.S.C. 1324 (a) (1) (B) . . . . 3, 5, 6, 15 \par 18 U.S.C. 371 . . . . 2 \par 18 U.S.C. 1505 . . . . 12 \par 21 U.S.C. 843 (b) . . . . 13 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par In the Supreme Court of the United States \par \par OCTOBER TERM, 1995 \par \par No. 94-1933 \par \par TADEUSZ SOBIECKI, PETITIONER \par \par v. \par \par UNITED STATES OF AMERICA \par \par No. 94-9078 \par \par EWA BROZEK-LUKASZUK AND LESTER LUKASZUK, \par PETITIONERS \par \par v. \par \par UNITED STATES OF AMERICA \par \par ON PETITIONS FOR A WRIT OF CERTIORARI \par TO THE UNITED STATES COURT OF APPEALS \par FOR THE SEVENTH CIRCUIT \par \par BRIEF FOR THE UNITED STATES IN OPPOSITION \par \par OPINION BELOW \par \par The opinion of the court of appeals (94-9078 Pet, \par App. 1(1)-1(16); 94-1933 Pet. App. D1-D33) is \par reported at 42 F.3d 387. 1. \par \par ___________________(footnotes) \par \par 1 The appendix to the petition in No. 94-1933 consists of four \par separately paginated items, which we have assigned the letters \par A through D. When citing the court of appeals' opinion here- \par after, we refer exclusively to the appendix in No. 94-9078. \par \par (1) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 2 \par \par JURISDICTION \par \par The judgment of the court of appeals was entered \par on December 9, 1994. 94-1933 Pet. App. A. A peti- \par tion for rehearing was denied on January 27, 1995. \par 94-9078 Pet. App. 2(1)-2(2); 94-1933 Pet. App. \par B1-B2. The petitions for a writ of certiorari were \par filed on April 27, 1995. Although petitioner in No. \par 94-1933 cites 28 U.S.C. 2101 as the basis for this \par Court's jurisdiction, the Court's jurisdiction is prop- \par erly invoked under 28 U.S.C. 1254(1). \par \par STATEMENT \par \par After a jury trial in the United States District \par Court for the Northern District of Illinois, petition- \par ers were convicted on multiple counts of transporting \par illegal aliens within the United States, in violation \par of 8 U.S.C. 1324(a) (1) (B), and one count of con- \par spiring to commit that offense, in violation of 18 \par U.S.C. 371. Petitioner Sobiecki was sentenced to 36 \par months' imprisonment, to be followed by three years' \par supervised release, and fined $50,000. 94-1933 Pet. \par App. C2-C4. Petitioner Brozek-Lukaszuk was sen- \par tenced to six months' imprisonment, to be followed \par by three years' supervised release, and fined $5,000. \par Brozek-Lukaszuk C.A. Br. App. 1(2)-1(3). Peti- \par tioner Lukaszuk was sentenced to 36 months' proba- \par tion, to be followed by three years' supervised re- \par lease, and fined $5,000. Lukaszuk C.A. Br. App. \par 2(2) -2(3). The court of appeals affirmed. 94-9078 \par Pet. App. 1(1)-1(16). \par 1. Eight times between February 12 and April \par 21, 1991, petitioners' co-defendant Allan Parmelee, \par a pilot, flew illegal Polish immigrants from Grimsby \par Airpark near Toronto, Canada, to DuPage County \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 3 \par \par Airport in West Chicago, Illinois. 2. Each time, the \par illegal aliens were carrying luggage and the flight \par took place late at night. From DuPage County \par Airport, Parmelee drove the illegal aliens to pre- \par arranged locations in Chicago, where they were met \par by petitioner Sobiecki. 94-9078 Pet. App. 1(2)-1(3). \par Sobiecki drove them to their final destinations in \par Chicago or to other locations where they were met \par by petitioners Brozek-Lukaszuk and her husband, \par Lester Lukaszuk, among others, for further trans- \par portation. Id. at 1(3). Petitioners were charged \par with substantive violations of 8 U.S.C. 1324(a) \par (1) (B) and a conspiracy to violate that statute. 3. \par 2. At trial, the district court quoted the text of \par 8 U.S.C. 1324 (a) (1) (B), and instructed the jury \par that, to find petitioners guilty of that offense, it had \par to find the following elements beyond a reasonable \par doubt : \par \par ___________________(footnotes) \par \par 2 Parmelee pleaded guilty during trial to all 17 counts of \par the indictment. He was sentenced to 21 months' imprison- \par ment. 94-9078 Pet. App. 1 (3). The court of appeals vacated \par his sentence and remanded for resentencing. Id. at 1 (9). \par \par 3 Section 1324 (a) prescribes a fine or imprisonment, or \par both, for: \par \par (1) Any person who- \par \par * * * * * \par \par (B) knowing or in reckless disregard of the fact that \par an alien has come to, entered, or remains in the United \par States in violation of law, transports, or moves or at- \par tempts to transport or move such alien within the United \par States by means of transportation or otherwise, in fur- \par therance of such violation of law[.] \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 4 \par \par First, that the alien had entered or remained \par in the United States in violation of law; \par Second, that the defendant knew or recklessly \par disregarded the fact that the alien had entered \par or remained in the United States in violation of \par law; and \par Third, that the defendant transported the alien \par in furtherance of the alien's unlawful entry to \par or presence in the United States. \par \par 94-9078 Pet. App. 1 (4). The court elaborated upon \par the third element as follows: \par \par In order for transportation to be in further- \par ance of an alien's unlawful entry or presence, \par there must be a direct or substantial relationship \par between the defendant's act of transportation \par and the alien's unlawful entry to or presence in \par the United States. In other words, the act of \par transportation must not be merely in[cid]ental \par to a furtherance of the alien's violation of the \par law. \par An act of transportation is in furtherance of \par the alien's unlawful entry [or] presence if such \par transportation brings the alien to his or her des- \par tination or place of refuge, or helps the alien re- \par main in the country unlawfully, undetected by \par those responsible for enforcing the immigration \par laws. A surreptitious or furtive transportation of \par an alien which inhibits the enforcement of immi- \par gration laws may be in furtherance of the alien's \par unlawful entry [or] presence. \par \par Ibid. Petitioners objected to these instructions on \par the ground that they allowed the jury to find them \par guilty even if they did not know they were furthering \par the aliens' violation of law. Ibid. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 5 \par \par 3. The court of appeals affirmed petitioners' con- \par victions. 94-9078 Pet. App. 1(1) -1(16). 4. Initially, \par the court accepted petitioners' contention that, to \par establish a violation of Section 1324(a) (1) (B), the \par government had to prove "not only that the defend- \par ant knew the alien he transported had entered this \par country in violation of immigration law, but also \par that the defendant knowingly transported the alien \par to further that violation." 94-9078 Pet. App. 1(4); \par see also id. at 1(5) ("[W]e hold that a defendant's \par guilty knowledge that his transportation activity fur- \par thers an alien's illegal presence in the United States \par is an essential element of the crime stated in section \par 1324 (a) (1) (B)."). The court further held that "the \par instructions as a whole did not clearly place this \par element before the jury," 94-9078 Pet. App. 1 (5). \par The court of appeals also held, however, that the \par instructional error was harmless beyond a reasonable \par doubt. Relying on Justice Scalia's concurring opinion \par in Carella v. California, 491 U.S. 263, 271 (1989), \par and on Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), \par the court stated that "the instructional error here is \par harmless if, given the facts of this case, no rational \par jury could have found [petitioners] guilty of violat- \par ing section 1324 (a) (1) (B) without also making \par the proper factual finding as to the missing ele- \par ment of willfulness." 94-9078 Pet. App. 1 (7). Ap- \par plying that test, the court determined that, "under \par the factual circumstances of this case, * * * a rational \par jury, which found that [petitioners] knew the aliens \par were illegal, also would have necessarily found that \par \par ___________________(footnotes) \par \par 4 In a ruling that is not at issue here, the court of appeals \par also vacated Parmelee's sentence and remanded the case for \par resentencing. 94-9078 Pet. App. 1 (3), 1 (9). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 6 \par \par [petitioners] knew their activity furthered the aliens' \par violation of the law." Ibid. The court based that \par determination on "the unrebutted evidence that [pe- \par titioners] furtively transported the aliens late at \par night; drove evasively to elude police surveillance, at \par times at high rates of speed; and received compensa- \par tion by the carload for the delivery of luggage-laden \par and foreign-speaking aliens who were strangers to \par [petitioners] ." Ibid. \par \par ARGUMENT \par \par 1. Petitioners contend (94-1933 Pet. 4-24; 94-9078 \par Pet. 7-12 ) that the court of appeals erred in holding \par that the trial court's failure to instruct the jury \par on one of the elements of a violation of 8 U.S.C. \par 1324 (a) (1) (B) was harmless. They argue that a \par failure to instruct the jury on an element of an \par offense can never be harmless error. They also claim \par that the circuits are in conflict over whether such \par instructional errors are subject to harmless-error \par analysis. 94-1933 Pet. 3-4; 94-9078 Pet. 11-12. \par a. We agree with the court of appeals' holding \par that, in a prosecution under 8 U.S.C. 1324(a) (1) (B), \par the government must prove that "the defendant \par knowingly transported the alien to further that viola- \par tion." 94-9078 Pet. App. 1(4). Every court of ap- \par peals to consider the issue has so held. 5. We disagree, \par \par ___________________(footnotes) \par \par 5 See United States v. Chavez-Palacios, 30 F.3d 1290, 1294 \par (10th Cir. 1994); United States v. Diaz, 936 F.2d 786, 788 \par (5th Cir. 1991); United States v. Velasquez-Cruz, 929 F.2d \par 420, 422 (8th Cir. 1991); United States v. Medina-Garcia, \par 918 F.2d 4, 7-8 (1st Cir. 1990); United States v. 1982 Ford \par Pick-Up, 873 F.2d 947, 950-951 (6th Cir. 1989); United \par States v. Moreno, 561 F.2d 1321, 1322 (9th Cir. 1977). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 7 \par \par however, with the court of appeals' conclusion that \par the jury instructions did not require the jury to find \par that knowledge. Taken as a whole, the instructions \par placed that issue before the jury. \par The jury was instructed that the government had \par to prove that petitioners "transported the alien in \par furtherance of the alien's unlawful entry." 94-9078 \par Pet. App. 1 (4). That instruction included the stat- \par utory language, "in furtherance of ," that the courts \par of appeals have uniformly interpreted to require \par proof that the defendant knew his transportation as- \par sisted the alien's illegal action, See, e.g., United \par States v. 1982 Font Pick-Up, 873 F.2d 947, 950-951 \par (6th Cir. 1989). That connotation was specifically \par suggested by the instruction's later explanation that \par the "in furtherance of" requirement may be satisfied \par by "[a] surreptitious or furtive transportation" that \par eludes immigration officials-conduct that implies a \par knowingly improper purpose on the defendant's part. \par The jury was also instructed that, "[i]n order \par for transportation to be in furtherance of an alien's \par unlawful entry or presence, there must be a direct \par or substantial relationship," as opposed to an "in- \par [cid]ental" one, "between the defendant's act of trans- \par portation and the alien's unlawful entry * * * or \par presence." 94-9078 Pet. App. 1(4). But the instruc- \par tion did not state or imply that such a "direct or \par substantial" connection is sufficient to satisfy the ele- \par ment. Nor did the following instruction so state or \par imply. It merely gave the jury two examples of a \par sufficiently "direct or substantial" connection: acts \par of transportation that "bring[] the alien to his or \par her destination or place of refuge, or [that] help[] \par the alien remain in the country unlawfully, unde- \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 8 \par \par tected by those responsible for enforcing the immi- \par gration laws." Ibid. In sum, while the court's listing \par of the elements did not expressly refer to petitioners' \par knowledge that their transportation was in further- \par ance of the alien's unlawful entry or presence, the \par court's elaboration of the concept of "in furtherance \par of" required a finding of such knowledge. \par b. Even if the jury instructions did not place the \par knowledge element before the jury, the court of ap- \par peals correctly held that that instructional error was \par subject to harmless-error analysis and was harmless \par in this case. \par i. This Court has made clear that instructional \par error, like other trial errors, is subject to harmless- \par error analysis. In Rose v. Clark, 478 U.S. 570 (1986), \par the Court held that harmless-error analysis was ap- \par plicable to a jury instruction that, in violation of \par Sandstrom v. Montana, 442 U.S. 510 (1979), al- \par lowed the jury to presume the element of malice in \par a murder prosecution "in the absence of evidence \par which would rebut the implied presumption." Rose \par v. Clark, 478 U.S. at 574. In Pope v. Illinois, 481 \par U.S. 497 (1987), the Court held that a jury instruc- \par tion misdefining an essential element of the crime \par was subject to harmless-error analysis, See id. at \par 500-501 (jury was erroneously instructed to deter- \par mine whether allegedly obscene material had "value" \par under a community standard, rather than a reason- \par able person standard ). In Carella v. California, 491 \par U.S. 263 (1989) (per curiam), the Court invalidated \par an instruction requiring the jury, if it found certain \par facts, conclusively to presume that the defendant had \par the "[i]ntent to commit theft by fraud" or "em- \par bezzled" a vehicle, but the Court remanded the case \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 9 \par \par for the state courts to determine whether the error \par was harmless. Id. at 264, 267. \par The Court in Carella indicated that the instruc- \par tional error involved there would be harmless if "no \par rational jury could find the predicate acts but fail to \par find the fact presumed." 491 U.S. at 267. The Court \par explained that, "[i]n many cases, the predicate facts \par conclusively establish intent, so that no rational jury \par could find that the defendant committed the relevant \par criminal act but did not intend to cause injury." Id. \par at 266 (quoting Rose v. Clark, 478 U.S. at 580-581) ; \par see also Sullivan v. Louisiana, 113 S. Ct. 2078, 2082 \par (1993). The concurring opinion in Carella also ex- \par plained that, when the factual findings required to \par trigger a presumption "are so closely related to the \par ultimate fact to be presumed that no rational jury \par could find those facts without also finding that ulti- \par mate fact, making those findings is functionally equiv- \par alent to finding the element required to be presumed. " \par Carella 491 U.S. at 271 (Scalia, J., concurring in the \par judgment). In later decisions, the Court has empha- \par sized that, once a court determines that an instruc- \par tional error is subject to harmless-error analysis, the \par court must analyze the effect of the error by reference \par to the jury's actual verdict under the instructions \par given. Sullivan, 113 S. Ct. at 2081-2082; Yates v. \par Evatt, 500 U.S. 391,404 (1991). \par The instructional error that the court of appeals \par found in this case was similar to that involved in \par Carella. In each case, the court determined that the \par instruction failed to require the jury to find an essen- \par tial element of the crime. See Carella, 491 U.S. at \par 266 (instruction directing jury to apply conclusive \par presumption "relieved the State of its burden of \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 10 \par \par * * * proving by evidence every essential element of \par Carella's crime beyond a reasonable doubt"). Ac- \par cordingly, the court of appeals in this case properly \par undertook an analysis similar to that described in \par Carella. It considered whether, under the instruc- \par tions that were actually given and the evidence pre- \par sented, a rational jury that found the facts that the \par jury in this case must have found in returning a \par guilty verdict could have failed to find that petition- \par ers acted with the requisite knowledge, 94-9078 Pet. \par App. 1(7). \par Contrary to petitioners' contention (94-9078 Pet. \par 10-11; 94-1933 Pet. 6-8), the court of appeals' ap- \par proach is consistent with Sullivan v. Louisiana, supra. \par The Court in Sullivan held that harmless-error anal- \par ysis did not apply to a constitutionally deficient jury \par instruction on reasonable doubt. 113 S. Ct. at 2080- \par 2083. The Court explained that such an error \par "vitiates all the jury's findings." Id. at 2082. The \par Court accordingly concluded that, because of the \par error, there were no valid jury findings to which a \par court could apply harmless-error analysis. That is \par not the case here. Any failure by the district court \par to instruct the jury on the knowledge element could \par not have affected the findings that the jury made \par under the instructions that were given. It therefore \par did not disable the court of appeals from conducting \par harmless-error analysis. \par ii. Petitioner Sobiecki contends (94-1933 Pet, 17- \par 24) that, even if the district court's failure to in- \par struct the jury on the knowledge element was subject \par to harmless-error analysis, the failure was not harm- \par less under the circumstances of this case. That fact- \par bound contention does not warrant further review. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 11 \par \par In any event, the court of appeals correctly held \par that the error was harmless. As the court of appeals \par explained, the jury's guilty verdict reflected a find- \par ing that petitioners knew that the aliens that they \par had transported were present in or had entered the \par United States illegally. See 94-9078 Pet. App. 1 (7). \par Underlying that finding was "unrebutted evidence \par that [petitioners] furtively transported the aliens \par late at night; drove evasively to elude police surveil- \par lance, at times at high rates of speed; and received \par compensation by the carload for the delivery of \par luggage-laden and foreign-speaking aliens who were \par strangers to [petitioners] ." Ibid. In light of that \par evidence, the court of appeals correctly determined \par that no rational jury could have found that petition- \par ers knew of the aliens' illegal presence in or entry \par into the United States without also finding that peti- \par tioners knew, as well, that their transportation of \par the aliens furthered the aliens' illegal acts. Ibid. 6. \par c. Petitioners contend (94-9078 Pet. 11-12; 94- \par 1933 Pet. 3-4) that there is a conflict in the courts \par of appeals on the question whether a failure to in- \par struct the jury on an essential element of an offense \par is subject to harmless-error analysis. That conten- \par tion does not warrant further review. \par Petitioners base their claim of a conflict on Justice \par White's statement dissenting from the denial of cer- \par tiorari in Teel v. Tennessee, 498 U.S. 1007 (1990). \par \par ___________________(footnotes) \par \par 6 Petitioners Brozek-Lukaszuk and Lukaszuk assert (94- \par 9078 Pet. 10) that not all of the evidence cited by the court \par of appeals indicated knowledge on the part of each defendant. \par They do not contend, however, that any of the evidence was \par inapplicable to them. In any event, their fact-bound asser- \par tion, which is not supported by any argument or record cita- \par tions, does not warrant further review. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 12 \par \par Justice White cited decisions from the Second, Sixth, \par and District of Columbia Circuits that he described \par as holding that "error resulting from a failure to \par give proper instructions on the essential elements of \par an offense cannot be harmless." Id. at 1008. Later \par decisions in those circuits, however, indicate that \par none of them currently subscribes to that holding. 7. \par Moreover, since the denial of certiorari in Teel, this \par Court has made clear in Arizona v. Fulminante, 499 \par U.S. 279 (1991), that "most constitutional errors \par can be harmless." Id, at 306. Furthermore, the \par Court in Sullivan and Yates has clarified the appli- \par cation of harmless-error analysis to instructional \par error. \par The Ninth Circuit has stated in several decisions \par that the failure to instruct on an essential element \par can never be harmless error. See United States v. \par Hove, 52 F.3d 233, 235-236 (1995) ; United States v. \par Stein, 37 F.3d 1407, 1410 (1994); United States v. \par \par ___________________(footnotes) \par \par 7 See Ianniello v. United States, 10 F.3d 59, 64 (2d Cir. \par 1993) (harmless-error analysis applied to erroneous failure \par to instruct jury that government had to prove that predicate \par acts alleged in RICO charge were related); United States v. \par North, 910 F.2d 843, 892-893 (harmless-error analysis ap- \par plied to erroneous instruction to jury that congressional in- \par quiry was "pending" as a matter of law for purposes of deter- \par mining whether defendant violated 18 U.S.C. 1505), opinion \par withdrawn and superseded in part on rehearing on other \par grounds, 920 F.2d 940 (D.C. Cir. 1990), cert. denied, 500 \par U.S. 941 (1991); see also United States v. Dotson, 895 F.2d \par 263, 264-265 (6th Cir.) (jury instruction quoting statute did \par not adequately explain one element of offense, but that error \par was subject to harmless-error analysis; prior Sixth Circuit \par decisions stating that such errors cannot be harmless "may \par not be long for this world" in light of later decisions of this \par Court), cert. denied, 498 U.S. 831 (1990). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 13 \par \par Gaudin, 28 F.3d 943, 951 (1994) (en banc), aff'd \par on other grounds, No. 94-514 (June 19, 1995) ; see \par also Harmon v. Marshall, No. 94-55733 (9th Cir. \par June 9, 1995). Notwithstanding those statements, \par the Ninth Circuit's decision in United States v. \par Whitmore, 24 F.3d 32, 36 (1994) (per curiam), \par strongly suggests that the Ninth Circuit would have \par agreed with the Seventh Circuit's holding that the \par instructional error in this case was harmless. \par Whitmore was charged with using a telephone to \par further a drug trafficking crime, in violation of 21 \par U.S.C. 843 (b). 24 F.3d at 33. The Ninth Circuit \par held that the district court erred in failing to instruct \par the jury that the government was required to prove \par that Whitmore knowingly used the telephone to fur- \par ther the drug transaction. Id. at 35. The Ninth Cir- \par cuit further held, however, that "the error was harm- \par less beyond a reasonable doubt." Ibid. The court rec- \par ognized that in a prior decision it had stated that, \par "when an element of the crime that must be found \par by the jury is removed from jury consideration that \par error cannot be harmless." Id. at 36 (quoting United \par States v. Gaudin, 997 F.2d 1267, 1272 (1993), aff'd \par in part, rev'd in part and remanded, 28 F.3d 943 \par (9th Cir. 1994) (en banc), aff'd on other grounds, \par No. 94-514 (June 19, 1995)). The court determined, \par however, that under the circumstances of that case \par it was clear that the error did not affect the verdict \par (Whitmore, 24 F.3d at 36): \par \par Unlike Gaudin, * * * the district court did not \par "completely remove from the consideration of \par the jury" the issue of Whitmore's knowledge. \par The jury was properly instructed that Whitmore \par had to act knowingly in connection with the drug \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par \par 14 \par \par transaction that underlies the 843 (b) viola- \par tion. The jury was also instructed that Whit- \par more had to use a telephone to bring about the \par conspiracy to distribute cocaine or to bring about \par the distribution of or the possession with the in- \par tent to distribute a controlled substance. In \par these circumstances, we can be certain that the \par evidence the jury actually considered in accord- \par ance with the instructions the district court actu- \par ally gave is so overwhelming as to leave it be- \par yond reasonable doubt that the jury would have \par convicted Whitmore on the 843(b) counts even \par if the district court had given a knowledge in- \par struction on those counts. \par \par The issue in Whitmore closely parallels the issue in \par this case. In Whitmore, the district court failed to \par instruct the jury that the government was required \par to prove that the defendant knowingly used the tele- \par phone to bring about an illegal drug transaction; \par here (the court of appeals determined), the district \par court failed to instruct the jury that the government \par was required to prove that petitioners knowingly \par transported aliens in furtherance of their illegal \par entry or presence in the United States. In both cases, \par however, the district court gave the jury a knowledge \par instruction in connection with a closely related act: \par In Whitmore, the jury was required to find that \par Whitmore knew that a controlled substance was in- \par volved in the transaction that the use of the telephone \par facilitated; here, the jury was required to find that \par petitioners knew that the aliens that they trans- \par ported were illegally in the country. Furthermore, in \par both cases, the jury was instructed to find that the \par defendant did the act (used the telephone; trans- \par ported the aliens) "to help bring about" or "in \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 15 \par \par furtherance of" the act as to which they had \par knowledge. \par Moreover, the Ninth Circuit's analysis in Whit- \par more paralleled that of the Seventh Circuit here. \par Both courts examined the evidence that the jury \par considered in making findings under the instructions \par that were actually given. Both courts concluded, in \par light of those findings, that no rational jury could \par have failed to find the element that, because of in- \par structional error, it was not expressly instructed to \par find. It is therefore doubtful that the Ninth Circuit \par would have reached a different result on the facts of \par this case. \par 2. Petitioner Sobiecki contends (94-1933 Pet. 24- \par 30) that the counts in the indictment charging him \par with violations of Section 1324(a) (1) (B) were de- \par ficient because they did not allege that he acted know- \par ingly with respect to the "in furtherance of" element. \par That is incorrect. The counts based on Section \par 1324 (a) (1) (B) adequately alleged the mental ele- \par ment by tracking the language of that provision, \par including the language that courts have construed \par to require proof of such knowledge. Thus, each such \par count charged that he transported aliens "who had \par not lawfully come to and entered the United States \par and were not lawfully entitled to remain in the \par United States, in furtherance of such aliens' violation \par of law, * * * knowing and acting in reckless disre- \par gard of the fact that such aliens had not lawfully \par come to and entered the United States and were not \par lawfully entitled to remain in the United States, \par [i]n violation of Title 8, United States Code, Section \par 1324(a) (1) (B)." As this Court has stated, "[i]t is \par generally sufficient that an indictment set forth the \par offense in the words of the statute itself." Hamling \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 16 \par \par v. United States, 418 U.S. 87, 117 (1974). Peti- \par tioner cites no case law to suggest that that principle \par is inapplicable here. 8. Moreover, he does not claim \par that he lacked notice of the offenses with which he \par was charged or that the indictment was insufficiently \par detailed to allow him to raise it as a double jeopardy \par bar in subsequent proceedings. See ibid. \par \par CONCLUSION \par \par The petition for a writ of certiorari should be \par denied. \par \par Respectfully submitted. \par \par DREW S. DAYS, III \par Solicitor General \par \par JO ANN HARRIS \par Assistant Attorney General \par \par J. DOUGLAS WILSON \par Attorney \par \par JULY 1995 \par \par ___________________(footnotes) \par \par 8 Petitioners reliance (94-1933 Pet. 26) on Stirone v. \par United States, 361 U.S. .212, 215-218 (1960), is misplaced; \par it involved a variance between the indictment and the proof \par at trial that the Court found prejudicial. The lower court \par decisions cited by petitioner (94-1933 Pet. 26-27) merely hold \par that an indictment must allege the essential elements of the \par offense with which the defendant is charged. \par \par \par \par }