I. On the important question of how courts are to decide whether constitutional error is harmless, this Court has, since 1967, given inconsistent and contradictory guidance. As one commentator has summarized:

[S]cholars tend to agree that there are two very different approaches that judges use in determining harmless error. Under the error-based approach, the focus of the court is on the likely impact of the error on the jury in the actual trial that took place. Under the guilt-based approach, the court considers a hypothetical trial conducted without the constitutional error, and asks whether the defendant would have nonetheless been convicted. The Supreme Court has used both approaches while rarely discussing the distinctions between them.

The court of appeals suggested that there may have been a violation of petitioner's Sixth Amendment right to confrontation, but ultimately declined to decide that question, holding instead that any error was harmless. In so doing, the court of appeals clearly used the guilt-based approach to harmless error, rather than the error-based approach, and found that the error was harmless based solely upon the other evidence of petitioner's guilt.

In light of the foregoing, the first question presented is:

Did the court of appeals err in applying the guilt-based approach, rather than the error-based approach, to assess the harmlessness of the confrontation error in petitioner's case; and should the Court grant certiorari in this case both to clarify that the error-based approach is the correct approach and to elucidate how that sort of harmlessness review should proceed?

II. Under the doctrine of Apprendi v. New Jersey, 530 U.S. 466 (2000), must the facts underlying a restitution award be proved to, and found by, a jury beyond a reasonable doubt (and, in federal cases, charged in a grand jury indictment)?

Did the court of appeals err in applying the guilt-based approach, rather than the error-based approach, to assess the harmlessness of the confrontation error in petitioner's case; and should the Court grant certiorari in this case both to clarify that the error-based approach is the correct approach and to elucidate how that sort of harmlessness review should proceed?