 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 24, 2009         Decided January 26, 2010

                       No. 08-3012

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

     RICARDO PALMERA PINEDA, ALSO KNOWN AS SIMON
                      TRINIDAD,
                     APPELLANT


                 On Petition for Rehearing



   Before: GINSBURG and HENDERSON, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge GINSBURG.

    Circuit Judge HENDERSON concurs in the judgment.

     GINSBURG, Circuit Judge: Ricardo Pineda, a member of
the Colombian guerilla group Fuerzas Armadas
Revolucionarias de Colombia (FARC), was convicted of
violating 18 U.S.C. § 1203 (penalizing whomever “seizes or
detains and threatens to … continue to detain another person
in order to compel a ... governmental organization to do ...
any act as [a] … condition for the release of the person
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detained, or … conspires to do so”) based upon evidence he
conspired with other members of the FARC to detain several
American citizens to be used as bargaining chips in
negotiations with the government of Colombia. During his
trial the prosecution presented strong evidence of Pineda’s
guilt: Pineda was a member of the FARC; the FARC had
designated Pineda to be one of its negotiators for the release
of the Americans; Pineda admitted he went to Quito on behalf
of the FARC to contact a U.N. representative and to deliver a
message that the FARC wanted to negotiate prisoner
exchanges; and Pineda acknowledged that, when he went to
Quito, he agreed with the FARC’s policy that prisoners would
not be released unless the FARC got something in exchange
from the government of Colombia. It was also undisputed
that the FARC captured the Americans in order to compel the
Colombian government to take certain acts. The prosecution
also presented — and the district court admitted over
objection — evidence of crimes committed by the FARC in
which Pineda played no role.

     When we affirmed Pineda’s conviction we explained
that, although the district court erred by admitting evidence of
crimes in which Pineda was not involved, the error was
harmless. Specifically, we wrote: “The Government’s case
was strong enough that we cannot say it is ‘highly probable’
the error had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’ Kotteakos v. United States,
328 U.S. 750, 776 (1946).” United States v. Pineda, No. 08-
3012, 2009 WL 3416344, at *1 (Oct. 5, 2009).

     In petitioning for rehearing, Pineda calls our attention to
an inconsistency in the way this circuit has restated the
standard established in Kotteakos v. United States, 328 U.S.
750 (1946), for our review of non-constitutional harmless
error. In some cases, including this one, we have seemingly
                               3
asked whether it is “highly probable” an error had a
“substantial and injurious effect or influence in determining
the jury’s verdict.” See, e.g., United States v. Harris, 491
F.3d 440, 452 (2007). In other cases we have articulated a
less demanding standard for deeming an error harmless. See,
e.g., United States v. Bailey, 319 F.3d 514, 519 (2003) (“fair
assurance ... that the judgment was not substantially swayed
by the error”); United States v. Lampkin, 159 F.3d 607, 613
(1998) (no “real possibility that the [error] had a substantial
effect on the jury’s verdict”). In still other cases we have
seemingly dispensed with the concept of probability, asking
only whether an error had “a substantial and injurious effect
or influence in determining the jury’s verdict.” See, e.g.,
United States v. Bentley, 489 F.3d 360, 363 (2007).

     The “highly probable” version of the standard for
harmless error, to which Pineda objects, is indeed less faithful
to the text and to the reasoning of Kotteakos than are the other
above-quoted versions of the standard. Although the Court in
Kotteakos did ultimately determine in that case it was “highly
probable that the error had substantial and injurious effect or
influence in determining the jury’s verdict,” 328 U.S. at 776,
it does not follow that a lower probability of injurious effect
would have made the error harmless. Earlier in its opinion the
Court discussed more directly how we are to determine
whether an error is harmless:

       [I]f one cannot say, with fair assurance, after
       pondering all that happened without stripping
       the erroneous action from the whole, that the
       judgment was not substantially swayed by the
       error, it is impossible to conclude that
       substantial rights were not affected. The
       inquiry cannot be merely whether there was
       enough to support the result, apart from the
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       phase affected by the error. It is rather, even
       so, whether the error itself had substantial
       influence. If so, or if one is left in grave doubt,
       the conviction cannot stand.

328 U.S. at 765 (emphases added).

     We need not determine today which of this court’s
versions of the standard for harmless error is most faithful to
Kotteakos; in this case the admission of evidence about the
FARC was harmless under any version of that standard.
Suffice it to say that, after “pondering all that happened
without stripping the erroneous action from the whole,” we
are satisfied that “the judgment was not substantially swayed
by the error.” Kotteakos, 328 U.S. at 765. Accordingly, our
original judgment is amended by deleting the phrase “it is
‘highly probable,’” but our conclusion remains the same.

     Pineda also suggests, based upon the same phrase in our
judgment, that we placed the burden of proving harmlessness
upon the defendant rather than upon the Government. It is
clear the Government bears the burden of proving
harmlessness, e.g., United States v. Simpson, 430 F.3d 1177,
1184 (D.C. Cir. 2005), and nothing in the judgment indicates
otherwise.

     In sum, the judgment is amended as indicated above and
the petition is

                                                         Denied.
