Whether the Ninth Circuit erred in disregarding the prejudice resulting from Stromberg error and instead applying a per se harmless error test based on the object of the robbery conspiracy being drugs

Question Presented for Review The Ninth Circuit Court of Appeals held Petitioners’ juries were instructed in violation of Stromberg v. California, 283 U.S. 359 (1931), because one of the two alternative theories supporting their 18 U.S.C. § 924(c) convictions was invalid. But instead of determining the effect of the alternative-theory error on the actual jury’s verdict, see Brecht v. Abrahamson, 507 U.S. 619, 627 (1993), the Ninth Circuit ignored the error and adopted an Eleventh Circuit test that holds § 924(c) instructional errors are per se harmless because a robbery conspiracy is “inextricably intertwined” with a drug trafficking conspiracy when the object of the robbery is drugs from a fake stash house. The question presented is: In applying harmless error review under Brecht, may a federal court disregard the prejudice resulting from Stromberg error, i.e., the jury’s consideration of an invalid theory of liability, and instead ask only whether the object of a robbery conspiracy was drugs? i