In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1838

KEVIN CZECH,

Petitioner-Appellant,

v.

MICHAEL MELVIN, WARDEN

PONTIAC CORRECTIONAL CENTER,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14-cv-02012 — Robert W. Gettleman, Judge.

____________________

ARGUED FEBRUARY 14, 2018 — DECIDED SEPTEMBER 21, 2018

____________________

Before EASTERBROOK and ROVNER, Circuit Judges, and 

GRIESBACH, District Judge.*

GRIESBACH, District Judge. An Illinois jury convicted Kevin 

Czech of first-degree murder and aggravated discharge of a 

 * Of the Eastern District of Wisconsin, sitting by designation.
2 No. 17-1838

firearm for his role in a drive-by shooting that resulted in the 

death of a fourteen-year-old bystander. Czech argued on direct appeal that his trial counsel was ineffective for failing to 

challenge the felony murder instruction that was submitted to 

the jury in conjunction with a general verdict. The Illinois Appellate Court determined that the felony murder instruction 

violated Illinois law, but concluded the error was harmless.

The Supreme Court of Illinois declined further review. After 

an unsuccessful motion for post-conviction relief on other 

grounds, Czech sought federal collateral relief under 28 

U.S.C. § 2254. The district court denied relief, reasoning that,

although the conviction violated clearly established federal 

law, the error did not have a substantial and injurious effect 

on the jury’s verdict. We affirm.

I. Background

On September 24, 1999, fourteen-year-old Alonzo Zuniga

was shot and killed in a drive-by shooting in Chicago by 

members of the Maniac Latin Disciples (MLD) directed at the 

Latin Kings, a rival gang. By all accounts, Zuniga was an innocent bystander not affiliated with either gang. In the course 

of their investigation, Chicago police quickly learned that the 

shooter was thirteen-year-old Marquis Falls. Though too 

young to be a full member of the MLD, Falls was considered 

a “pee-wee” member and had been assigned the task of holding a .357 revolver for the gang. The driver of the car was 

eighteen-year-old MLD member Roberto Mejia. Other occupants included Mejia’s girlfriend, fifteen-year-old Nancy Malaves, and Czech, who was then twenty years old and also a 

member of the MLD.

Based on evidence that he had planned the “drive-by” and 

directed Falls to shoot at the rival gang members, Czech was 
No. 17-1838 3

charged with first-degree murder and aggravated discharge 

of a firearm on the theory that he was legally responsible for 

Falls’ actions. At trial, the court instructed the jury on four 

ways in which it could find Czech guilty of first-degree murder. One of the options, felony murder, required that the victim be killed during the commission of another felony, in this 

case, the crime of aggravated discharge of a firearm. The jury 

returned a general verdict, finding Czech guilty of first-degree murder and aggravated discharge of a firearm.

In the meantime, after Czech was convicted but before his 

appeal, the Illinois Supreme Court held in People v. Morgan

that aggravated discharge of a firearm could not serve as the 

predicate felony of a felony murder conviction. 758 N.E.2d 

813 (Ill. 2001). The Court noted that if every death caused by 

the aggravated discharge of a firearm could be charged as felony murder, “[t]he result could be to effectively eliminate the 

second degree murder statute and also to eliminate the need 

for the State to prove an intentional or knowing killing in most 

murder cases.” Id. at 838 (internal quotations omitted). To 

avoid this result, the Court concluded that “where the acts 

constituting [the underlying felony] arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder.” Id. In other 

words, the aggravated discharge of a firearm could not serve 

as the underlying felony in a felony murder conviction if it 

did not have an independent felonious purpose.

On direct appeal, Czech argued that his trial counsel provided ineffective assistance of counsel in failing to object to 

the jury instruction on felony murder. Czech claimed that the 

trial court erred in instructing the jury that it could find him 

guilty of first-degree murder based on a felony murder theory 
4 No. 17-1838

in light of Morgan. The Illinois Court of Appeals agreed that 

the instruction was improper under Illinois law because the 

acts establishing the crime of aggravated discharge of a firearm arose from and are inherent in the act of murder. It nevertheless found the error to be harmless, explaining that under Illinois law the court must presume that the jury convicted Czech of the most serious crime charged, intentional or 

knowing murder. The court also concluded that “[b]ased on 

the overwhelming evidence of defendant’s guilt in the record, 

it is not reasonably likely that, but for this error, the decision 

reached would have been different.” Supplemental Appendix 

(SA) 19–20. Because the error was harmless, the court concluded Czech’s ineffective assistance of counsel claim failed.

Czech then filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, challenging his murder conviction. As 

relevant here, Czech argued that the inclusion of the felony 

murder instruction violated his due process rights. The district court appointed counsel and found that the general verdict conviction violated clearly established federal law because it contained an improper method of conviction. The 

court nevertheless concluded that Czech was not entitled to 

relief. It reasoned that the error did not have a substantial and 

injurious effect on the jury because the evidence of his guilt 

was overwhelming. The district court thereupon denied 

Czech’s petition in its entirety but granted Czech a certificate 

of appealability on the issue of whether the inclusion of the 

improper felony murder instruction resulted in harmless error.

II. Analysis

We review the district court’s denial of a petition for writ 

of habeas corpus de novo. Carter v. Thompson, 690 F.3d 837, 843 
No. 17-1838 5

(7th Cir. 2012). In considering habeas petitions that challenge 

state court convictions, “[o]ur review is governed (and greatly 

limited) by the Anti-terrorism and Effective Death Penalty Act 

of 1996 (‘AEDPA’).” Hicks v. Hepp, 871 F.3d 513, 524 (7th Cir. 

2017) (citation omitted). Pursuant to the statute, habeas relief 

cannot be granted for persons in custody pursuant to a judgment of a state court unless the adjudication of the claim: “(1) 

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or (2) 

resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in 

the State court proceeding.” 28 U.S.C. § 2254(d).

A. Due Process

In this case, Czech contends that, because the felony murder instruction was invalid as a matter of state law, its inclusion in the general verdict returned by the jury violated his 

right to due process. The issue, then, is whether a jury instruction that departs from state law necessarily violates the Constitution. We have been down this road before.

In Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), the petitioner argued that the trial court violated her constitutional 

rights by giving the same combination of murder and voluntary manslaughter instructions that was found to violate Illinois state law in People v. Reddick, 526 N.E.2d 141 (Ill. 1988). In 

Reddick, the Illinois Supreme Court held that, under Illinois 

law, it was “grave error” for a court to give murder and voluntary manslaughter instructions without warning the jury 

that to return a verdict of murder, the state must prove beyond a reasonable doubt that the “manslaughter defenses” 

are without merit. In considering Falconer’s petition for 
6 No. 17-1838

federal habeas relief, this court found the jury instruction error redressable under the Constitution as a violation of the 

defendant’s due process right. We explained that when the Illinois Pattern Jury Instructions for murder and voluntary 

manslaughter were given together, the jury may have been 

left with the false impression that it could convict the petitioner of murder even if she possessed a mitigating mental 

state described in the voluntary manslaughter instruction. 905 

F.2d at 1136. “Explicit misdirection on this scale,” we held, 

“violates the constitutional guarantee of due process.” Id. at 

1137.

In Gilmore v. Taylor, the Supreme Court held that the

“new” rule this court announced in Falconer could not provide 

the basis for retroactive federal habeas corpus relief. 508 U.S. 

333 (1993). Applying Teague v. Lane, 489 U.S. 288 (1989), the 

Court found that the Falconer rule was not compelled by 

“precedent existing at the time the defendant’s conviction became final.” 508 U.S. at 340 (citation omitted). Notably, Gilmore did not say whether Falconer was correctly decided; nor 

did it expressly overrule Falconer. But in reversing this court’s 

retroactive application of Falconer, the Court expressed its disagreement with this court “that our precedent foreordained 

the result in Falconer ... .” Id. at 344. Gilmore also noted that

“[o]utside of the capital context, we have never said that the 

possibility of a jury misapplying state law gives rise to a federal constitutional error. To the contrary, we have held that 

instructions that contain errors of state law may not form the 

basis for federal habeas relief.” Id. at 342 (citing Estelle v. 

McGuire, 502 U.S. 62 (1991)). 

From this pre-AEDPA line of cases, the “clearly established federal law”—that is, law “determined by the Supreme 
No. 17-1838 7

Court of the United States,” 28 U.S.C. § 2254(d)(1)—appears 

to be that “instructions that [only] contain errors of state law 

may not form the basis for federal habeas relief.” Gilmore, 508 

U.S. at 342 (citation omitted); see also Pulley v. Harris, 465 U.S. 

37, 41 (1984) (“A federal court may not issue the writ on the 

basis of a perceived error of state law.”). But in this case Czech

contends, and the district court found, that the state court rendered decisions contrary to the clearly established federal law 

set forth in Stromberg v. California, 283 U.S. 359 (1931), and 

Yates v. United States, 354 U.S. 298 (1957). He relies on Stromberg and Yates for the proposition that a general verdict returned by a jury that has been instructed on alternative 

grounds for finding the defendant guilty, one of which is improper under state law, violates his federal right to due process. The respondent, on the other hand, contends that neither 

Stromberg nor Yates clearly established the constitutional claim 

on which Czech relies.

In Stromberg, the defendant was charged with violating 

California Penal Code 403a for displaying a red flag or banner 

in a public place as a sign, symbol, or emblem used to oppose 

organized government, to invite anarchistic action, or to aid 

seditious propaganda. 283 U.S. at 361. The court instructed 

the jury that the defendant could be convicted if the flag was 

displayed for any of these three purposes. The jury convicted 

the defendant for violating the statute in a general verdict that 

did not indicate which part of the statute the defendant had 

violated. The Supreme Court found that a conviction based 

on the first clause—displaying a flag that was a symbol of opposition to organized government—violated the defendant’s 

First Amendment right to free speech. The Court then considered whether the jury’s general verdict should be set aside, 

noting that if “any of the clauses in question is invalid under 
8 No. 17-1838

the Federal Constitution, the conviction cannot be upheld.” 

Id. at 368. The Court reversed the defendant’s conviction because it was impossible to determine whether the conviction 

rested upon the invalid criminal charge. Id. at 370. Stromberg

thus stands for the principle that “where a provision of the 

Constitution forbids conviction on a particular ground, the 

constitutional guarantee is violated by a general verdict that 

may have rested on that ground.” Griffin v. United States, 502 

U.S. 46, 53 (1991). It clearly does not apply here. 

The Supreme Court extended Stromberg’s holding twentysix years later to a federal prosecution in Yates. There, the defendants were charged in a single count with a Smith Act conspiracy advocating the overthrow of government and organizing, as the Communist Party, a society of citizens to overthrow the government. 354 U.S. at 300. The defendants were 

convicted, but the jury’s general verdict did not indicate 

whether it found the defendants guilty of the “advocating” 

charge or the “organizing” charge. The Court concluded that 

the “organizing” charge was barred by the Smith Act’s threeyear statute of limitations. Without referring to the Due Process Clause, the Court cited Stromberg and held that a general 

verdict must be set aside where it “is supportable on one 

ground, but not on the other, and it is impossible to tell which 

ground the jury selected.” Id. at 312. The Court therefore reversed the conviction because it was unclear whether the conviction rested on the time-barred “organizing” charge.

The Court questioned the extension of its holding in 

Stromberg to Yates in Griffin, describing it as “an unexplained 

extension, explicitly invoking neither the Due Process Clause 

(which is an unlikely basis) nor our supervisory powers over 

the procedures employed in a federal prosecution.” 502 U.S. 
No. 17-1838 9

at 55–56. In Griffin, also a federal prosecution, the Court was 

confronted with the question of whether the Due Process 

Clause of the Fifth Amendment required that a general verdict of guilty on a multiple-object conspiracy charge in a federal prosecution be set aside if the evidence is inadequate to 

support conviction as to one of the objects submitted to the 

jury. In holding that it did not, the Court rejected the argument that Yates had overturned the long-standing common 

law rule that “a general jury verdict was valid so long as it 

was legally supportable on one of the submitted groundseven though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury’s 

action.” Id. at 49. Though Griffin did not overrule Yates, the 

Court declined to extend its holding to cases in which “one of 

the possible bases of conviction was neither unconstitutional 

as in Stromberg nor even illegal as in Yates, but merely unsupported by sufficient evidence.” Id. at 56.

This appeared to be the law in 2004 when the Illinois Appellate Court rejected Czech’s claim of error and affirmed his 

conviction. No Supreme Court precedent clearly established 

that a conviction entered on a general verdict was unconstitutional merely because the jury instructions included a legal 

theory that was invalid under state law. Indeed, Gilmore at 

least suggested that it did not. Stromberg stood only for the 

narrow proposition that a general verdict must be set aside 

when one of the possible bases for conviction was unconstitutional. And while Yates had applied that rule to federal prosecutions in which a possible basis of conviction was legally improper, it was unclear whether its holding was grounded in 

the Due Process Clause. Normally, that absence of clearly established federal law at the time the state court decided the 

case would be dispositive. But further delay in the exhaustion 
10 No. 17-1838

of Czech’s state court remedies and a more recent decision by 

the Supreme Court added an additional wrinkle to his case.

As noted above, the Illinois Appellate Court issued its decision rejecting Czech’s claim of instructional error and affirming his conviction in 2004. After the Illinois Supreme 

Court denied Czech’s petition for leave to appeal, Czech returned to the trial court with a motion for post-conviction relief on grounds not relevant here. The trial court’s order denying that motion was finally affirmed by the Appellate Court 

on March 26, 2013, and again the Illinois Supreme Court denied review. It was at that point that Czech filed his petition 

for federal relief under § 2254.

In the meantime, while Czech’s motion for post-conviction 

relief on other grounds was pending in the state courts, the 

Supreme Court decided Hedgpeth v. Pulido, 555 U.S. 57 (2008). 

In Hedgpeth, the Court vacated the Ninth Circuit’s decision affirming the district court’s grant of § 2254 relief on the ground 

that the state court’s felony murder jury instructions on multiple theories of guilt, one of which was invalid under state 

law, violated the petitioner’s constitutional rights. The lower 

courts had granted the petition without considering whether 

the petitioner suffered any prejudice, holding that the instruction constituted structural error that requires that the conviction based on a general verdict be set aside regardless of 

whether the error resulted in prejudice. In vacating the Ninth 

Circuit’s decision, the Court held that such an error was not 

structural and relief was not warranted unless a reviewing 

court found that “the flaw in the instructions ‘had substantial 

and injurious effect or influence in determining the jury’s verdict.’” Id. at 58 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 

(1993)). The Court then remanded the case back to the lower 
No. 17-1838 11

court to determine in the first instance whether the error was 

harmless.

In light of Hedgpeth, the district court’s conclusion that 

Yates constitutes clearly established federal law was understandable. At first glance, it appears that the Court implicitly 

accepted the lower courts’ conclusion that Yates was based on 

constitutional error, id. at 60, a conclusion it had found “unlikely” in Griffin. 502 U.S. at 56. After all, if there was no violation of federal law, then there was no need to reach the issue 

of whether the violation was structural and remand the case 

for a determination of whether the error was harmless. Instead of overturning the lower court’s ruling that constitutional error had been shown, Hedgpeth let stand the lower 

courts’ ruling that Yates constituted clearly established federal 

law that jury instructions on multiple theories of guilt, one of 

which is invalid under state law, is a violation of due process. 

See also Sorich v. United States, 709 F.3d 670, 673 (7th Cir. 2013) 

(“The Supreme Court ruled in Yates v. United States, 354 U.S. 

298 (1957), that constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general 

verdict that may have relied on a legally invalid one.”). And 

since Yates preceded Czech’s conviction by more than forty 

years, the district court understandably concluded that the 

jury instructions in his case likewise violated clearly established federal law and proceeded to determine whether the 

error was harmless under Brecht.

It is important to note, however, that the Court in Hedgpeth

did not expressly hold that instructing a jury on multiple theories of guilt, one of which is legally improper, is a constitutional error. Instead, the Court addressed only the narrow issue of whether such an error is subject to harmless-error 
12 No. 17-1838

review. We question whether “clearly established federal 

law” can be established by implication. But even assuming it 

can be established in this manner, we are satisfied that Czech 

is not entitled to relief here. This follows because, even if constitutional error was shown, the district court correctly found 

it to be harmless.

B. Harmless Error

On habeas review, a constitutional error is considered 

harmless unless it can be shown to have “had substantial and 

injurious effect or influence in determining the jury’s verdict.” 

Jones v. Basinger, 635 F.3d 1030, 1052 (7th Cir. 2011) (quoting 

Brecht, 507 U.S. at 622). That is, petitioners “are not entitled to 

habeas relief based on trial error unless they can establish that 

it resulted in ‘actual prejudice.’” Brecht, 507 U.S. at 637. “We 

apply this ‘actual prejudice’ standard regardless of whether 

the state appellate court determined that the error was harmless beyond a reasonable doubt under Chapman v. California, 

386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967).” Jones, 635 F.3d 

at 1052; see also Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015) 

(“[T]he Brecht standard ‘subsumes’ the requirements that § 

2254(d) imposes when a federal habeas petitioner contests a 

state court’s determination that a constitutional error was 

harmless under Chapman.” (citing Fry v. Pliler, 551 U.S. 112, 

120 (2007))). When making a determination under Brecht, the 

reviewing court must make a “de novo examination of the record as a whole” to decide whether a properly instructed jury 

would have arrived at the same verdict, absent the error. Jenkins v. Nelson, 157 F.3d 485, 495 (7th Cir. 1998). If a habeas 

court “has so much as a ‘grave doubt as to the harmlessness 

of [a constitutional error], it should grant relief.’” Jones, 635 
No. 17-1838 13

F.3d at 1052 (quoting O’Neal v. McAninch, 513 U.S. 432, 439 

(1995)).

In this case, the jury was instructed that a person commits 

the offense of first-degree murder when he kills an individual 

if in performing the act which caused the death he (1) intends 

to kill; (2) intends to do great bodily harm to that individual 

or another; (3) knows that his acts will create a strong probability of death or great bodily harm to the individual or another; or (4) is committing the act of aggravated discharge of 

a firearm. SA 354. Only the fourth basis for a finding of guilt 

on the crime of aggravated discharge of a firearm was improper. A finding of guilt on any of the three remaining bases 

offered by the court would have been proper. To decide

whether the error was harmless, then, we must examine the 

record as a whole to determine whether one or more of the 

lawful bases for a finding of guilt “was overwhelmingly established by the evidence, such that a rational jury, absent the 

error, would have arrived at the same verdict.” Jenkins, 157 

F.3d at 495. From our review of the entire record, we agree 

with the district court that the evidence against Czech was 

overwhelming and that a reasonable jury would have reached 

the same verdict on at least two of the remaining bases.

There was no dispute that Czech was in the car with Mejia, 

Malaves, and Falls when Mejia drove past the gathering of 

Latin Kings and Falls opened fire on them. Czech admitted as 

much and more in his own statements to police. SA 225–30, 

241–42. The only real question was whether it was Czech who 

directed Mejia to drive by the Kings’ location and ordered 

thirteen-year-old Falls to shoot at them.

Falls, who had pled guilty to the murder of Zuniga in juvenile court, testified that it was Czech who originally gave 
14 No. 17-1838

him the .357 revolver to hold and who told him to retrieve it 

from the alley where he had hidden it on the night of the 

shooting. SA 108–16. According to Falls, Czech told him “he 

needed a gun to go and shoot at the Kings.” SA 116, 118. As 

they approached the street where the Kings were gathered, 

Czech, who was seated in the back seat on the driver’s side of 

the car, instructed Falls that if the Kings were on his side of 

the car he would shoot, and if they were on the passenger 

side, Falls would shoot. SA 119. When it turned out they were 

on the passenger side, Czech handed the gun to Falls. As 

Mejia drove around the block, Falls switched seats with Malaves, who was seated in the front passenger seat, because the 

rear window would not roll down completely. SA 122. Then, 

as they drove by the Kings again, Czech pointed out a gang 

member named Chino and told Falls to shoot. Falls estimated 

that he fired five shots, and as they sped away, Czech was 

shouting “D love, King Killer, stuff like that.” SA 123.

Malaves, who was fifteen-years-old at the time of the 

shooting, corroborated much of Falls’ account. Malaves testified that Mejia, who was her boyfriend at the time, planned to 

take her to a movie that evening with Czech and his girlfriend. 

The plan changed, however, when they picked up Czech in 

Mejia’s car. Upon entering the car, Czech told Mejia they were 

going to “cruise by the Kings.” SA 70. But first, Czech told 

Mejia they had to pick up Falls. After they picked up Falls, 

Mejia was directed to the alley where Falls retrieved the gun. 

When Falls got back into the car, Czech directed Mejia to drive 

to Monticello and Drake, where the Kings were gathered. Malaves testified that as they drove by the Kings, Czech rolled 

down his window, made King gang signs and yelled “King 

love,” in an apparent attempt to lull them into a false sense of 

security. SA 73–77. They then went around the block and 
No. 17-1838 15

Malaves climbed into the back seat and changed places with 

Falls. As they approached the gathering of Kings again, Czech 

told Malaves to cover her ears because she was about to hear 

a loud noise. Malaves testified that she ducked down on the 

floor and heard gunshots and Czech screaming “King Killer” 

and “Maniac love.” SA 79–80.

Although Czech argues that Malaves’ testimony does not 

fully support Falls’ account, we find no significant inconsistencies from our review of the transcript. Malaves was unable 

to recount all of what Czech said to Falls while they drove to 

where the shooting occurred, but she explained that this was 

in part because she was not paying attention and also because 

Czech and Falls were in the back seat and the car radio was 

playing loudly. SA 105–06. What she did recount supports the 

conclusion that it was Czech’s idea to drive by where the 

Kings were gathered, Czech knew Falls was going to shoot 

before the shots were fired, and Czech approved of Falls’ actions. Further support was provided by the Chicago Police detective who interviewed Czech and testified that Czech admitted that he told Mejia to drive to the Kings’ territory but 

first had him pick up Falls who retrieved the gun. SA 225–27. 

According to the detective, Czech also admitted that he 

shouted “D Killer” and “King Love” when they drove past 

the Kings gathering the first time, and then told Falls to switch 

seats with Malaves before they drove past the Kings the second time because the rear windows did not roll down all the 

way. He also admitted he told Malaves to cover her ears and 

keep her head down before Falls fired the gun out the window. Although Czech was less forthcoming in his videotaped 

interview, the earlier version recounted by the detective provided strong support for Falls’ and Malaves’ testimony. Viewing the record as a whole, there was ample evidence that 
16 No. 17-1838

Czech directed Falls to shoot at the Kings and intended or, at 

a minimum, knew there was a strong probability of death or 

great bodily harm.

Czech nevertheless argues that the inclusion of the felony 

murder instruction had a substantial and injurious effect on 

the jury’s verdict because the prosecution emphasized the instruction as part of its theory of the case. Relying on Jensen v. 

Clements, 800 F.3d 892 (7th Cir. 2015), Czech argues that the 

fact that the prosecution emphasized the felony murder instruction in its closing requires the conclusion that the error 

was prejudicial. Jensen involved a letter written by the defendant’s wife before her death accusing him of her murder. There 

was no dispute that the admission of the letter at trial violated 

the defendant’s confrontation rights under the Sixth Amendment. The sole issue before us was whether the admission of 

the letter was prejudicial. In holding that it was, we noted that 

the “letter from the grave” had played a key role in the case 

from the outset, the prosecution had emphasized in its closing, and the evidence was “all circumstantial and subject to 

more than one interpretation.” Id. at 905–06. We thus concluded that the admission of the letter had a substantial and 

injurious effect on the verdict.

Here, we are not dealing with a powerful piece of incriminating evidence that formed the centerpiece of the prosecution’s case, but one of four separate theories of liability. We do 

not agree that the prosecution’s primary theory at trial was 

that Czech was guilty of first-degree murder under the felony 

murder instruction or that the instruction was the center of 

the prosecution’s case as the letter was in Jensen. The prosecution predominately urged the jury to convict on a theory of 

knowing or intentional murder. After analyzing how the State 
No. 17-1838 17

had met the elements of this theory, the prosecution explained that felony murder was a final option the jury could 

consider if the jury was “inclined to give [Czech] the benefit 

of any conceivable doubt.” SA 317. The mere fact that the 

prosecution offered felony murder as a fallback argument 

does not mean the evidence establishing guilt under the alternative theories was lacking. In any event, under Brecht, it is 

the strength of the evidence as a whole, and not the closing 

argument of the prosecution, that determines whether the error was harmless.

From our review of the evidence as a whole, we conclude 

that a properly instructed jury would have arrived at the same 

verdict. We cannot say that the inclusion of the felony murder 

theory in the general verdict “had substantial and injurious 

effect or influence in determining the jury’s verdict” or resulted in actual prejudice to Czech. Brecht, 507 U.S. at 622. We 

thus conclude that the error, assuming it was of constitutional 

magnitude, was harmless. The judgment of the district court 

is therefore affirmed.