concurring:

I join in the opinion of the court, but I add these comments concerning the majority’s discussion of the discovery order involved in this case.

Rule 16 of the Federal Rules of Criminal Procedure provides for certain pretrial discovery by the government and the defendant. Rule 12 of the Federal Rules of Criminal Procedure also provides for discovery and disclosure of certain information in the event the defendant intends to offer the defense of alibi. The discovery order here involved required the defendant to supply information beyond the provisions of Rules 16 and 12.1.

The prosecution complied with the order for discovery; but, as the majority points out, the defendant, for all practical purposes, ignored it. Furthermore, the defendant did not object to the order, nor has he shown any prejudice suffered because of his minimal compliance with the order. I also agree that the mere entry of the order, together with the defendant’s minimal compliance, was harmless error beyond a reasonable doubt.

However, I am concerned about the statement of the majority that the evidence against the defendant was so overwhelming that any constitutional error would be harmless beyond a reasonable doubt. Assuming, arguendo, that there was a constitutional violation, the mere fact that the evidence was overwhelming is not a justification for classifying the error as harmless, under the Chapman standard. The proper inquiry is whether the prosecution has been able to demonstrate, beyond a reasonable doubt, that the constitutional error involved did not contribute to the defendant’s conviction, Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

Compliance with a discovery order which violated the constitutional rights of the defendant could well produce overwhelming *1350 evidence, yet this would not justify the application of the harmless error doctrine, since the constitutional error would have contributed to that overwhelming evidence and thus to the defendant’s conviction. In this case, the prosecution has been able to demonstrate that the minimal compliance with the order by the defendant could have had no effect on the verdict, not because the evidence was overwhelming, but because of the insignificance of the material produced in response to the order.