Whether the district court and Fourth Circuit erred in applying the harmless error review under Brecht v. Abrahamson

QUESTIONS PRESENTED FOR REVIEW The U.S. Constitution demands that a conviction may stand only on evidence of each element of the offense proved beyond a reasonable doubt. When an element is not proved, or when jury instructions are incorrect such as to lead to a finding of guilt that is not lawful, the Sixth Amendment is violated. To convict Petitioner of racketeering, the government was required to prove the existence of the criminal enterprise and, separately, at least two predicate acts. With all the prior bad act evidence the government presented, and with Petitioner’s reasons for believing some of this conduct were not qualifying predicates or were based on evidence that would be ruled inadmissible, Petitioner asked for a special verdict so that the record would reflect what the jury had concluded were the predicate acts. The district court denied him the request, and the Fourth Circuit rejected Petitioner’s argument on direct appeal that the district court erred in denying his request for a special verdict. One of the charged predicate acts was attempted second-degree murder under North Carolina law. The jury instructions went into that allegation in detail, affirmatively stating that it qualified as a predicate act. But this affirmative statement was false, as the offense did not even exist under North Carolina law. But Petitioner’s counsel had not objected to that jury instruction. When Petitioner complained that counsel was ineffective for failing to object, the district court’s response was that Petitioner could not show prejudice because of the amount of prior bad acts. Of course, Petitioner could not show prejudice because he had been denied the special verdict he had requested. More importantly, however, the district court defied this Court’s case law by applying plain error by reviewing for whether the evidence was sufficient to sustain the verdict but for the error, rather than by reviewing for whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The jury instructions also failed to list “interdependence” as an element of the racketeering conspiracy. A circuit conflict exists as to whether interdependence is an element of the offense that needed to be proved to the jury beyond a reasonable doubt. Cf. 4" and 10" Circuit cases. To reject Petitioner’s argument that his counsel was ineffective for failing to object to the lack of this element, the district court relied on a Fourth Circuit case that passively did not list the element, ignoring another Fourth Circuit case that listed it and case law from the Tenth Circuit that lists it as an element. Accordingly, the first question for the Court is whether the district court and Fourth Circuit have ignored the Court’s decisions in Brecht and Kotteakos stating that the harmless error review of incorrect jury instructions is not whether the evidence would be sufficient to find guilt without the error but whether the error had substantial and injurious effect or influence in determining the jury’s verdict. The second question for the Court is whether “interdependence” is an element of conspiracy and therefore an element of racketeering conspiracy. i