No cert 2nd time up to the Supremes; on remand 8th Circuit found even if the intitial police questioning post indictment violated Miranda's 6th Amendment prong,the violation had no effect on trial; As a consolation prize though, Defendant wins a Booker resentencing. Supreme Court refuses to hear drug conviction of Lincoln man The Associated Press The U.S. Supreme Court has refused to hear the appeal of a Nebraska man convicted on drug charges, although last year it ruled unanimously for him, saying police should have informed him of his rights before questioning him. The high court on Tuesday refused without comment to hear the appeal of John Fellers, who was sentenced to more than 12 years in prison but sought to have his conviction overturned after the Supreme Court’s ruling last year. In 2000, Fellers, of Lincoln, freely spoke of his drug problem to police when they arrived at his home to tell him he had been indicted by a grand jury for conspiracy to distribute methamphetamine. He was informed of his so-called Miranda rights, which include the right to remain silent and seek counsel, only after he was taken to jail. With Fellers arguing his case to the Supreme Court, the panel ruled last year that the statements he made violated his Sixth Amendment right to counsel. The panel sent his case to a federal appeals court to determine whether to suppress statements he later made in jail. In May, the 8th U.S. Circuit Court of Appeals upheld his conviction, saying there was no indication the incriminating statements he later made were prompted by what he said at his home. "We conclude that the exclusionary rule is inapplicable in Fellers’s case because, as with the Fifth Amendment in Elstad, the use of the exclusionary rule in this case would serve neither deterrence nor any other goal of the Sixth Amendment.there is no indication that the interrogating officers made any reference to Fellers’s prior uncounseled statementsin order to prompt him into making new incriminating statements. In addition,because Fellers’s initial statements related to persons already named in the indictment and to his own personal use of methamphetamine (the drug he was accused ofconspiring to distribute and to possess with intent to distribute), the officers would have had a basis for the questions asked during the jailhouse interrogation even if Fellers had said nothing at all at his home." "Even if Fellers’s jailhouse statements should have been suppressed, any error in admitting those statements at trial was harmless beyond a reasonable doubt. Although a defendant’s own confession is “a particularly potent piece of evidence,” its erroneous introduction is harmless where the other evidence against him is so substantial that it “assured beyond a reasonable doubt that the jury would have returned a conviction even absent the confession.” But the panel did order that Fellers be resentenced because of a recent decision by the Supreme Court on sentencing guidelines, which said juries, not judges, should determine whether to dole out punishments stronger than ones in sentencing guidelines. "The jury in Fellers’s case specifically found that Fellers was responsible for between 50 and 500 grams ofmethamphetamine and specifically rejected an alternative verdict stating that Fellerswas responsible for more than 500 grams of methamphetamine, the district court’sdecision to enhance Fellers’s sentence based upon the latter figure was in error.Because Fellers raised this issue at sentencing, he is entitled to a new sentencinghearing.Fellers’s conviction is affirmed, but his case is remanded for resentencing in accordance with Booker. Fellers was sentenced to more than 12 years in prison for conspiring to distribute and possess with intent to distribute between 50 and 500 grams of methamphetamine. The case is Fellers v. United States, 04-1552.