*1 25.18 We Bank directors’ Br. at case. See holding with court’s affirm the district
will duty good faith
regard to the breach Thus, we will affirm
claim on this basis. denying entirety court’s order the district
its for leave to Bathgate defendants’ motion against Bank di complaint
amend their
rectors.
III. CONCLUSION result, reaching- have not over-
In our Duhme doctrine and
looked that the D’Oench 1823(e) might can lead to
section what Nevertheless, it result.
considered a harsh precedents and to us that the federal
seems Jersey law have com- applicable New Consequently, the or-
pelled our outcome. 18, 1993, March of the district court of
ders 19, 1993, affirmed. July will be ROBINSON, Appellant,
Maurice ARVONIO, Superintendent, East
Patrick Tufo,
Jersey Prison; Del State Robert J.
Attorney of the of New General State
Jersey.
No. 92-5667. Appeals, Court of
United States
Third Circuit.
Argued Nov. 1993.
Decided June 1994. Rehearing July Petition for
Sur disposition February light allege letter. of our also that the Bath- in the 18. The Bank Directors gate Bathgate Bathgate against than have no defendants other claims defendants' third-party standing directors, to sue the Bank directors as this issue. Bank we need not reach allegedly beneficiaries of the reflected *2 (argued), L. of Public Robert Sloan Office Defender, Section, Newark, NJ, Appellate appellant. (argued), A. Catherine Foddai Office Jersey, Atty. Dept, of New of Law & Gen. Justice, Trenton, Safety, Public Div. of Cr. NJ, appellees. ALITO,
Before: SCIRICA and Circuit POLLAK, Judge Judges District *. THE OPINION OF COURT SCIRICA, Judge. Circuit Robinson, currently Petitioner Maurice J. Jersey prison, ap- confined a New state applica- peals the district court’s denial corpus a writ of under 28 tion for habeas (1988). § 2254 Robinson asserts the U.S.C. Poliak, vania, sitting by designation. *The Honorable Louis H. United States Pennsyl- for the Eastern District of District granted no should have been because the reasonable likelihood that writ the error had Jersey prosecutor judgment jury. failed to correct a affected the New perjured denial that his witness’s prosecutor’s prom-
had been secured A. *3 sentencing judge cooper- tell of his ise to the trial, In his statement at pros- ation.1 The district court found failure of jury ecutor informed that prosecution per- to correct the witness’s Melvin Shark previously guilty had been found and that an jured testimony was harmless error because agreement had been made with Shark in per- there was no reasonable likelihood the testimony return for his at jured testimony judgment Robinson’s trial. had affected the stated: jury. finding This rested the court’s jury judgment that had evi- sufficient going Mr. Shark to be a in witness this it dence before to assess the of the going and the State is to call him as a follow, witness. For reasons that we will you I witness. would like to understand at affirm the denial writ. point this day Mr. Shark has had his
in already adjudicated. court and has been why coming And terms of he would be BACKGROUND time, at you here this I’d like to know (1) guilty A of: found Robinson mur- guilt beforehand that Mr. Shark denied his (West der, § under N.J.Stat.Ann. 2C:ll-3 when subsequently he was on trial and (2) Supp.); robbery, 1982 & 1993 armed un- guilty. agreed was testify found He has (West 1982); State, § der N.J.StatAnn. 2C:15-lb promised what was for (3) possession handgun permit, of a without a merely him was kept away he would be (West 1982); § Robinson, under N.J.Stat.Ann. 2C:39-5b Mr. that is it. He will— (4) told, possession handgun of a for He any prom- unlawful was and the extent of came, purposes, § under N.J.Stat.Ann. 2C:39-4a ise made to him when his sentence (West 1982). Melvin Co-defendant Shark would be made known to granted sentencing judge, was a severance and a found but no deal in terms time, years, guilty charges. anything him like that. of the same On Febru- 24, 1984, ary Maurice J. Robinson was sen- thirty-year imprisonment tenced to a term of you I’d murder, also like to note to that Mr. years
for with a minimum of fifteen testifying Shark will be under what’s parole. without He also received a concur- immunity, known as because he has been fifteen-year robbery, rent term for armed recently yet convicted and he has not been years a pa- with minimum of seven without sentenced, as I said earlier. role. added.) (Emphasis remedies,2 exhausting After state Robin- petitioned son corpus trial, however, for habeas relief in initially At Shark denied United States District Court. The district promised anything that he had all agreed court failed to return for his On direct examina- tion, testimony, correct the witness’s but it found Shark testified: prosecutor’s unreported per opinion, August 1. Robinson contends the conduct filed curiam deprived process of due law him and a fair Appellate hearing found Division Fifth, trial under Sixth and Fourteenth should not have been conducted in Robinson's Amendments of the United States Constitution. hearing. absence and remanded for another Af- hearing, ter the second at which Robinson was appealed Superior 2. Robinson Court of counsel, present represented by the trial Division, Jersey, Appellate New which affirmed again petition. ap- court denied his Robinson unreported per opin- his conviction in an curiam 1, 1990, pealed, unreported on October in an February Jersey ion filed on 1986. The New per opinion, Appellate curiam Division af- Supreme request Court denied Robinson's post-conviction firmed the denial of relief. The pro petition certification. He then filed a se relief, Supreme Jersey post-conviction New Court denied Robinson's which was denied after a hearing appealed, petition in his absence. He and in an for certification on December promised to Only thing was me Shark, your A. Yes. testi- Q. reference Mr. I’d be taken care of. today, there a was mony in this courtroom testify? you you would so deal made prosecutor, em- On redirect A. No. protective promised phasized he had been testimony: custody exchange for his why understanding of Q. your isWhat gain you expect to you were —what Shark, during your Q. cross- Mr. earlier testifying result of here? examination, response to one of [defense attorney’s] you were time, questions about what you repeat one more A. Can something along the promised, you said please? you be taken care of. line that testify Q. prompted you to at this What *4 does that mean? What your trial after own trial? particular custody. Protective A. hoping I that— A. was Shark, you be Q. do know what will Mr. your trial and you as a result done you? Q. does that mean to And what your conviction? to A. Means a lot me. going long I’ll for a time.
A. I know Q. Why? your you law- Q. Did discuss that with here, going on A. Behind the fact what’s yer? know, jail, you get word can back Yes, A. I did. know, that, something you I that did anything in you promised Q. And were jail against regulations rules and inside the testifying exchange for here as a result of seriously doing I hurt some- and can be your trial? thing like this. No, I
A. wasn’t. acknowledged prosecutor Shark never today? Q. you telling the truth sentencing judge Are agreed to inform the prosecutor failed to cooperation, his and the Yes, A. I am. perjured correct his The defense cross-examination, Shark acknowl- On attorney closing revived the issue his immunity edged promised that he was for his by referring prosecutor’s statement to testimony: promise speak judge. to to Shark, you Q. is it not a fact that Mr. He stated: . immunity Prose- promised from have saying You recall this wit- [Shark] anything you said in court cution based on stand, just get “I to the truth ness want today? here say? did he Uncon- out”? What else Yes, A. it is. said, help myself.” sciously he “I want to I the man who included Then asked him—this is But he still denied the said, “Did sen- now wants to tell the truth —I making cooperation known to the you anything?” judge: promise the Prosecutor tencing recall, you gentle- I’m sure mil ladies and fact, sir, Q. Is it not a that the men, made his that when the Prosecutor you get promised you that if on that remarks, indicated, and he stated testify today stand and for the State truthfully you, to that he had made cer- Robinson, they against would tell the Mr. promises On this tain to this defendant. your cooperation? Judge of witness stand —a man who’s worried about Well, to promise A. he didn’t me he’d talk going forget his survival is not to some- Judge about that. that, thing any promises if were made like say Q. He didn’t that? him, stand, help but on this witness to go promise A. He didn’t me he’d back Bible, taking that I asked after the oath on Judge coop- and tell him I and talk to the him, you?” any promises made to “Were nothing to me. promised erated. Was promise that “No.” “Did the Prosecutor your Q. Judge on that’s the truth? he’d talk to the And behalf?” Judge and, (cid:127)promises up you made.” That’s what makes his own “No. No mind know, said. Sentencing that’s true. is for the recall, Judge. The Prosecutor can’t tell you’ll gentle- if And ladies recess, say. to men, what took a and when we came said, back, him, I I “Did the asked Prose- But, gentlemen, you ladies and don’t immunity?” promise you did cutor What think some little trying weasel who’s say “Oh, yes, promise he did me im- he — and, save himself will take those words munity.” desperate, he is so because make those say things they
words
really
that
did not
say,
maybe, maybe,
this is a
yesterday say
him
chance
You heard
re-
this,
get
that,
me to
out of
my
sponse
question
“I was men-
myself,”
tioning
years
ladies
added.)
(Emphasis
closing statement,
In his
gentlemen,
you
if
face
kind
time
referred to Shark’s sentenc-
out,
you
buy your way
can
do it. He
protective custody:
got up
did it. He
on that witness stand
Yes, the
him
State called
as a witness but
perjured
“I
you,
myself,
and said to all of
expect?
what did Melvin
opened
I
liar,”
help
I’m a
Fine. To
Do
himself.
*5
you
you
to
and told
things
certain
were
man, streetwise,
young
you think that that
him,
promised
yes.
to
What
his
[was]
wouldn’t have certain ideas about what it
big
deal?
lawyer
His
deal? His
was
said,
speak
a Prosecutor
“I will
means if
present when we discussed it. And he
Judge
you?
gentle-
to the
Ladies and
explained his answers....
“I know that
men,
sinking.
up
he was
And it was
to
Judge
can sentence me and I know the
he
his nose and he reached out and
any power
Prosecutor doesn’t have
over
grabbed
immunity
try
that
to
to
straw of
Judge
because the
me
found
what he
I
save
That’s
did. And
himself.
guilty.
plea bargaining.
Jury
No
ver-
suggest
you
you
to
that
cannot believe
dict, guilty. So the Prosecutor does not
anything
him. You can’t believe
that he
power
anything
have the
to recommend
to
said.
Judge anymore
years,
in terms of
”
months, days.
testify
So what did he
for?
He said on that
that the
witness stand
coming
And this is where it’s
out now:
very
day
first
when he was arrested he Well,
say
facing
what did he
was
him over
getting
was concerned about
out
himself
code,
code,
there in the
a different
not the
yester-
this. He said on the witness stand
here,
by
jail
code we live
but in the
here:
himself,
day
trying
help
that
to
he was
Subjected
physical beatings
to some
if the
said,
job,
in order to do his
he even
“Noth-
gets
word
out. So what did he want from
me,”
ing
promised
was
to
and either he
protective custody.
“I
State?
want
thought better
it or
that he would be
felt
subject
being severely
I’m
to
beaten if I
entrapped
suddenly
and then
he admitted
testify against another defendant.”
promised
what was
him.
to
And the Pros-
added.)3
(Emphasis
“Yes,
say
you,
prom-
I
ecutor would
did
” but,
speak
Judge,
jury,
him I’d
ise
to the
ladies
his final instructions to the
gentlemen,
only
immunity
independent,
referred
to the
sentencing hearing,
operation
testifying against
3. At Shark's
his codefendant
leniency
and codefendants.
asked for
for Shark and stressed the
importance
testimony
critical
of Shark's
in ob-
testimony, proving
the case
taining
[W]ithout
conviction:
Robinson’s
against
[Robinson]
his codefendant
would have
Mr. Shark was told me in all candor that I
difficult,
impossible
if
speak
respect
for him in this
at his
sentence,
your
that
Honor would note his co-
punished
pun-
He should be
and he will be
...,
ished
but his
in both the trials
be noted because we
[of co-defendants] has to
opportunity
would have not had the
to convict
Floyd had been shot. Sanders
jury K.O.
and reminded the
part of
men,
sitting
elderly
had been
Floyd,
were not
both
closing statements
opening
noted, however, the
bar.
a
club next door
As we have
outside
social
evidence.
statement,
young
past
ac-
men walk
in his
noticed three
prosecutor,
Sanders
speak
knowledged
promised
at him as
he
saw the first one look
them and
behalf,
(He
and the
judge on
Shark’s
they
by.
later identified Shark as
went
closing argument,
attorney,
in his
man.)
defense
people
no other
He saw
Therefore,
acknowledgement.
built on
young
stopped a short
The three
men
area.
of the terms
was made aware
elderly
had a
past
men and
distance
attorney made a
agreement and the defense
frightened of the
Sanders was
conversation.
lack of
strong
for Shark’s
case
men;
Floyd they
young
he told
should leave
conflict-
agreement and Shark’s
based on the
Floyd’s car. The
and started to walk toward
and surrounded the
young men came back
elderly
saw the
two
men. When Sanders
B.
young
pull gun
out
of the three
men
second
testimony
important for Rob-
Shark’s
Ridgewood
pocket,
ran to the New
of his
only
other wit-
because
one
inson’s conviction
time,
At that
pounded
Bar and
on the door.
place Robinson near the scene
ness could
Floyd
help and heard a
he heard
call for
testify
could
the crime and no other witness
door,
Conaway opened the
shot. Just before
part in it.
will recite
Robinson had taken
We
Floyd lying
around and saw
Sanders turned
the relevant facts.
running
and the
men
the street
three
away. Floyd died of his wounds.
May
between 1:30 a.m. and
On
a.m.,
night manager of the New
1:45
years
shooting,
two
after the
Sand-
Some
Newark, N.J., Robert
Ridgewood Bar in
*6
talking
in front of the
ers was
to a friend
Conaway,
doors and admitted
unlocked the
he noticed someone
same social club when
Shark,
by
he knew
a customer whom
Melvin
staring
seeing
at him. After
the same man
companion.
male
A third man
sight, and his
occasions,
recognized him
other
he
several
Conaway,
In
bar-
outside.
addition to
waited
Floyd’s
three men involved
as one
Evans, her friend Constance
maid Barbara
police
murder. He contacted the
and Shark
Brooks,
two others were
the bar.
being present
was arrested. Shark admitted
purchased
and asked
Shark
beer
Evans
murder,
firing
gun.
but
He
denied
change
cigarette machine.
her for
for the
him as
identified the other two men with
companion at
conferring with his
After
and Robinson’s brother
Maurice Robinson
machine,
change,
asked her for more
Shark
(a
murder).
minor at the time of the
Charles
Conaway asked
which she refused.
Shark
companion
it was
and his
to leave because
trial,
At
Robinson’s
neither Sand-
Maurice
opened
closing time. When he
almost
manager, Conaway, could
ers nor the bar
door,
they
appeared, asking if
the third man
identify
as someone he
Maurice Robinson
Conaway
gotten the
saw the three
beer.
night
But
had seen on the
of the murder.
away.
young men walk
Brooks,
patron,
Constance
the bar
testified
later, Conaway
recognized
one of
Approximately five minutes
she
Maurice Robinson as
Benjamin
purchased
before
pounding on the
the two men who had
beer
heard
Sanders
shouting
shooting.4
in. He said that
bar door
to be let
actually pulled
trigger
year
year mandatory
person
a 20
term with a 10
who
ceived
Robinson;
help
term
without the
of Melvin
minimum. Robinson's concurrent
for
Maurice
Shark,
himself,
longer
help
exchange
robbery
but in
armed
was also
than Shark's.
albeit to
concrete,
really
nothing
did
Mr. Shark
tes-
Conaway
tify,
identified Shark whom he knew
and I think that should be noted to the
bar,
sight
patron
a
of the
but he could not
court.
noted,
identify
and Shark were
Robinson. Constance Brooks identified
As we have
Robinson
offenses; however,
Robinson, although
guilty
she had not
of the same
Rob-
both Shark
found
before;
memory
given
longer
a
sentence. For the
known either of them
her visual
inson was
murder,
Conaway's
year
may
with a 15
have been better than
because
he received a 30
term
Evans,
barmaid,
minimum,
year mandatory
an
whereas Shark re-
she was
artist. Barbara
ments,
following:
night,
prosecutors
testified to the
and the
Shark
failed to correct
perjured testimony.
near his resi-
their
he met the Robinson brothers
bar;
and went with them to the
he and
dence
Napue,
In
the Court
a
held
conviction is
buy
Robinson went in to
while
Maurice
beer
through
evidence,
obtained
the use of false
outside;
Charles Robinson waited
when leav-
and therefore
violates
the Fourteenth
bar,
they
saw two men outside a Amendment,
state, “although
when the
not
club;
men,
they
past
social
walked
evidence,
soliciting
go
false
it
allows
uncor-
lead,
down;
in the
and slowed
Shark
Shark
269,
appears.”
rected when it
360 U.S. at
him,
shout,
scuffling,
heard sounds behind
a
S.Ct. at 1177. The Court elaborated:
shot;
gun
he turned and
one of
and a
saw
principle
may
that a State
not
down;
the men fall
Maurice Robinson was
evidence,
knowingly
including
use false
standing
away
gun
few feet
with a
testimony,
false
to obtain a tainted convic-
hand;
up
money lying
picked
some
tion, implicit
any
concept of ordered
next
to the fallen man and fled with his
liberty,
apply merely
does
cease to
money
companions;
gave
half the
to Mau-
testimony goes only
because the false
rice Robinson and went home.
of the witness. The
reliability
estimate of the truthfulness and
DISCUSSION
given
may
of a
witness
well be determina-
innocence,
guilt
tive of
upon
or
and it is
A.
such
possible
subtle factors as the
interest
of the
corpus petition,
testifying falsely
In
witness
a habeas
if the
that a
evidentiary hearing,
liberty may depend.
defendant’s life or
district court held an
error,
findings
review its
of fact
clear
Id.
Cir.1989),
Owens,
(3d
44,
v.
Lesko
881 F.2d
50-51
Giglio,
government’s
ease de
denied,
1036,
rt.
493 U.S.
110 S.Ct.
ce
pended
entirely
testimony
almost
on the
of a
(1990),
154,
766, (quoting Napue,
92
at
S.Ct.
360
B.
1178) (alteration
271,
U.S. at
79 S.Ct. at
in
original).
Giglio
embody
Napue
Both
right
process
A defendant’s
to due
is
knowing
per
the rule that the state’s
use of
implicated when the state obtains a convic
jured testimony to obtain a conviction is con
upon testimony
tion based
the state knows is
error,
stitutional
but that does not automati
Illinois,
264,
perjured. Napue v.
360 U.S.
cally
petitioner
entitle
to relief. The court
269,
1173, 1177,
79 S.Ct.
was not called to she died at about the time were 884 (4th 447, Paderick, 451 541 F.2d v. protection Boone so of a constitutional deprivation denied, 959, Cir.1976), 430 97 S.Ct. cert. U.S. absence, ‘“a criminal trial its
basic
(1977).
1610,
885
review,
retrying
review,
and the social costs
defen
standard for collateral
“[petitioners]
original
years after the
conviction out
dants
are not entitled to habeas relief based on
Chapman
weigh any additional effect the
they
trial error unless
can establish that it
”
—
deterring
would have
state
standard
Id.,
prejudice.’
resulted in ‘actual
U.S.
failing
fully
courts from
enforce constitu
-,
113
at
(citing
S.Ct.
1722
United
—
at -,
rights.
Id.
tional
U.S.
Lane,
438, 449,
States v.
474 U.S.
106 S.Ct.
at 1721-22.
113 S.Ct.
(1986)).6
725
standard,
The new
announced
exception
Robinson
an
*9
difference,
easy
ignore
but one
when the
burden,
saying
in Brecht
the state bears the
but
guilt
strongly
sense of
comes
from the record.
Lowery
explicitly adopt
do not
Collins,
that view.
v.
Brecht,-U.S.
at-,
(Ste-
“[A]
court,
the
fundamentally un-
the
an error which
testimony
attention of
is
perjured
of
any
if there is
at trial
fair,
attorney
aside
could have corrected
and must be set
defense
testimony
the false
integrity
likelihood that
of the
likely
reasonable
“to infect the
is
—
judgment of the
Brecht,
the
have affected
could
at - n.
U.S.
proceeding_”
(footnotes
103,
had lied to it gain about what he stood to (dissenting). First, agreement from the aas whole. all; promised anything
denied he had been then, cross-examination, I. he admitted he promised immunity; finally, had been on re- principal When Melvin Shark —the state’s direct, promised he admitted he had been against witness Maurice Robinson —was sen- protective custody. Significantly, unlike the part killing tenced for his in the of K.O. prosecutors in Napue Giglio, prose- Floyd, told the here, statement, cutor his ac- judge: knowledged promise his to tell the sentenc- fact, bring what, That will us around to ing judge cooperation. of Shark’s The de- Mr. told Shark was me in all candor attorney acknowledgment fense built on that speak that I him in respect this arguing not a credible witness. sentence, at his that Your Honor would unlikely We think it that further evidence against note in testifying his misrepresenting Shark was his codefendant and codefendants. changed jury’s would have evaluation of his whether, Honor, inquiry
The crucial under it is true that without [Y]our Brecht, Robinson has testimony proving against shown the error “had the case his injurious difficult, substantial and effect or influence codefendant would have if determining impossible.... verdict.” As we *11 of, and stand, existence about the denied trials has in both the cooperation [H]is testimony. The no other there was which would not have had we noted because to be the closing, did not tell in his prosecutor, person who to convict the opportunity the bargain had that a denial jury that Shark’s Kayo trigger on Mr. the actually pulled Instead, prose- the perjury. Robinson, struck was that was Maurice Floyd, and reshaped bargain: the cutor, closing, in his Shark, albeit help of Melvin the without help himself.... but Yes, him as a witness called the State Robinson, pros- opened the I expect? of Maurice At the trial did Melvin Shark what things informed you statement certain were you in his and had told ecutor told, the him, “was his yes. [was] Shark What jury promised that Melvin the his lawyer pres- to him when was any promise made His big of His deal? extent deal? came, would be cooperation it. And he ex- his sentence when we discussed ent sentencing judge but the no “I know that to the plained made known his answers.... time, years, anything I the like me and know of Judge deal terms can sentence put prosecutor any power Shark over the have that.” But when Prosecutor doesn’t stand, from his star jury not elicit found me Judge he did the on the because the verdict, bargain he Jury the had bargaining. guilty. plea confirmation No witness when, on cross- And does not have the about. Prosecutor guilty. told So the examination, inquired about anything counsel to the defense power to recommend months, falsely, years, and un- bargain, Judge anymore Shark in terms denied— bargain had been any testify for? And such did he days.” der oath —that what So Well, coming out now: it’s struck: this is where him say facing over there was what did sir, fact, prosecutor that the Q. it not a Is code, code, the code not a different get on that you you if would that promised here, jail here: in the Sub- live but today testify State stand beatings if the physical jected to some Robinson, they tell against Mr. want what did he gets out. So word your cooperation? custody. protective “I want the State? Well, promise me he’d talk to he didn’t A. severely if I being beaten subject to I’m Judge about that. defendant.” testify against another say that? Q. He didn’t go back in promise me he’d A. He didn’t coop- I Judge and tell him II.
and talk nothing promised to me. Was erated. prose acknowledges “[t]he that court truth? Q. that’s the And perjured duty to correct had a cutor thing promised to me Only was A. Yes. prose duty the testimony of his witness” —a of. I’d be taken care con The court not to fulfill. cutor elected of,” testified, meant Being “taken care Shark cludes, nonetheless, that Robinson Maurice Later, also custody.” ac- “protective curative writ of habeas entitled to the not promised immunity knowledged that he was “error was prosecutor’s corpus because the testimony against Robin- respect to his harmless? Why was error harmless.” today in this say anything court- I son—“if prosecutor’s evidence “[t]he Because ” room, against me.... be used it wouldn’t sentencing judge of promise to tell perjured denial never recanted his But Shark only added would have cooperation Shark’s promised that “when that the presented incrementally to evidence came, his sentence [Shark’s] credibility.” Shark’s known to the would be made reasons, can Therefore, the error the court ...” “‘had substantial said to have determining injurious influence counsel, effect or closing, undertook in his Defense ” Abrahamson, v. had, Brecht verdict.’ to remind 1710, 1722, 123 - U.S. -, -, promise made to opening, described (1993) (quoting Kotteakos Shark, L.Ed.2d 353 on the witness promise Shark —a
889
States,
750, 776,
against
being
United
328 U.S.
66 S.Ct.
highway”
drunk on a
him —
(1946)).
1253,
1239,
cutor.
Therefore, I dissent.
Arsdall,
In Delaware v. Van
475 U.S.
SLOVITER,
Judge,
Present:
Chief
(1986),
July by appel- rehearing filed petition *13 having case in the above-entitled
lant judges participated in who
submitted to all the other of this Court
the decision regu- of the circuit judges circuit
available service, con- no who
lar active having for re- asked in the decision
curred judges circuit majority of the
hearing, and a having service regular circuit petition for rehear- rehearing, the
voted banc, panel the Court grant re- Stapleton would
denied.
hearing. America STATES
UNITED HANNIGAN, Appellant.
Eugene 93-1596.
No. Appeals, Court
United States Circuit.
Third
Argued Feb. 23, 1994.
Decided June
notes
to the Brecht
Kotteakos,
Brecht and derived from
does not
rule, set forth in a footnote in that case.
require
showing
a
that “but for” the error Declaring that the Kotteakos harmless-error
would have rendered a verdict
applies
standard
with constitutional error “of
Singletary,
favor of defendant. Duest v.
997
type,”
the trial
the Court noted:
(11th
1336,
Cir.1993) (citing
F.2d
1338
Kot
holding
Our
possi-
does not foreclose the
teakos,
1247).
763,