United States v. Collins

10-1048-cr
United States v. Collins

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2011
(Argued: September 9, 2011 Decided: January 9, 2012)

Docket No. 10-1048-cr

UNITED STATES OF AMERICA,

Appellee,

v.
JOSEPH P. COLLINS,

Defendant-Appellant.

Before:
CALABRESI, CHIN, and CARNEY, Circuit Judges.

Appeal from a March 17, 2010 judgment of the
United States District Court for the Southern District of

New York (Patterson, J.) convicting defendant-appellant of
conspiracy, securities fraud, and wire fraud. Defendant-
appellant contends, inter alia, that the trial court

committed prejudicial error when it failed to disclose the
contents of a jury note and engaged in an ex parte colloquy
with a juror accused of attempting to barter his vote.

VACATED and REMANDED.
 CHRISTOPHER L. GARCIA, Assistant United
States Attorney (Justin S. Weddle,
Assistant United States Attorney, on
the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, New York, for Appellee.
WILLIAM J. SCHWARTZ (Jonathan P. Bach, Jason
M. Koral, Reed A. Smith, Kathleen E.
Cassidy, on the brief), Cooley LLP,
New York, New York, for Defendant-
Appellant.

Barry A. Bohrer, Alexandra A.E. Shapiro,
Marc E. Isserles, for Amicus Curiae
New York Council of Defense Lawyers.

Jack C. Auspitz, LaShann M. DeArcy, Amy
J. Phillips, Martin Sander Kaufman,
for Amicus Curiae Atlantic Legal
Foundation.

CHIN, Circuit Judge:
In this case, defendant-appellant Joseph P.

Collins proceeded to trial on a fourteen-count indictment
charging him with, inter alia, conspiracy, securities fraud,

wire fraud, and bank fraud. After twenty-two days of

testimony, the jury began deliberations. On the fifth day
of deliberations, difficulties arose as two jurors were

involved in a verbal altercation. The next day, the foreman
sent a note to the court asserting that one juror had
attempted to barter his vote and was refusing to deliberate.

The court did not share the contents of the note with the
parties or seek counsel's input before it conducted an ex

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parte interview with the accused juror. During the
interview, the court gave the juror what amounted to a

supplemental instruction, emphasizing the importance of
resolving the case. This sequence of events deprived

Collins of his right to be present at every stage of the
trial. Because the deprivation was not harmless, we vacate
and remand for a new trial.
BACKGROUND

By a superseding indictment dated December 4,

2008, the government charged Collins with conspiracy,

securities fraud, wire fraud, bank fraud, and making false
filings with the SEC.

Trial commenced May 13, 2009. Jury deliberations
began July 1. On July 8, the fifth day of deliberations,

the jury reported difficulty reaching a verdict, requesting

guidance from the court. The court responded by note,

stating, "You, not the judge, are the sole judges of the
facts." (Ct. Ex. 41).
Later that afternoon, a Court Security Officer

(the "CSO") heard a disruption in the jury room. When the
CSO entered, one juror told him that another juror had
physically threatened him. The court brought the jury into

the courtroom and instructed them "to show respect for one

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another" and to "[t]ry not to get heated." (Tr. 5351). The
court dismissed the jury for the day while it decided, with

counsel, on an instruction that would help the jury
deliberate more productively.

The following morning, just before 10AM, the court
received two additional notes from the jury. The first note
was written by Juror 4, and read:

I am writing to express my concern
regarding the conduct of juror number
9 . . . . Although I appreciate your
efforts to control the frequent insults
I've endured, the threat of bodily harm
brings this abuse to a whole new level.
Specifically, in a loud and belligerent
man[ne]r juror [9] threatened to "cut off
your (my) finger." She made that
statement twice. In the same tirade she
stated, "I will have my husband take care
of you." These threats were made
yesterday afternoon July 8, 2009.
Rest assured I will not allow such
threats and intimidation [to] alter my
vote when it comes to determ[in]ing a
verdict in this case. I am concerned,
how[ev]er, [that] hearing these threats
may affect other jurors. Regardless, I
believe this is not the proper way to
deliberate and the Court should be made
aware of this conduct.
Please forward this note to the Court as
soon as possible. Hopefully we can get
some guidance on how to proceed and
complete our assigned task.

(Ct. Ex. 45).

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 The second note was written by the foreman to the
court:

In regards to the earlier note I
forwarded to your attention from Juror
4 . . . , it is my personal opinion that
the altercation yesterday could be traced
to both parties involved. There ha[ve]
also been conversations on numerous
occassions [sic] regarding respectfulness
on the part of Juror 4 . . . .

I do not intend this note to reflect the
opinion of the jurors on a whole, but
thought it important to voice my personal
opinion on yesterday's altercation.
(Ct. Ex. 46).

Both of these notes were disclosed to the parties

and counsel and read into the record.
At 10:15AM the jury received a note that the court

had drafted with counsel the night before. 1
At 2:15PM that afternoon, the court received two

additional notes from the jury. The first requested trial
exhibits and testimony. This first note was read into the
record. The second note stated:

This is sent as a private note from Juror
#1.
There's been some concern amongst some of
the juror's [sic] regarding odd behavior
on the part of Juror #4 . . . . During
deliberations on 7/2, [Juror 4] changed

1
Because of a miscommunication, this note was not
delivered to the jury upon its arrival.
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 his vote on a charge, bringing a
unanimous decision. However, [Juror 4]
then attempted to make his vote
contingent upon the room agreeing blindly
on a charge to be voted on later. He
wanted to barter.

In my opinion, this is at the heart of
yesterday's altercation between juror's
[sic] 4 and [9].
To compound this issue, juror 4 has made
it clear he would prefer to be a hung
jury than do further evidence research.
As foreman, I am struggling to find ways
of dealing with these issues, and will
continue guiding the jury towards a
conclusion using your guidance from court
exhibit #44.

(Ct. Ex. 48) (the "Note").

The district court did not read the Note into the
record, or otherwise inform counsel of its contents.

Instead, it simply stated that it had received the Note and

would be speaking privately with Juror 4. The court did not

explain why it would be holding an ex parte conference with
Juror 4. Defense counsel stated that he was "not

consenting" to the court's chosen course of action. (Tr.
5409).

The court proceeded to hold an ex parte conference
with Juror 4.2 During the conference, the court asked Juror
4 about the accusations leveled against him in the Note.

2
The court reporter transcribed the conference.
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Before giving Juror 4 an opportunity to respond, the court
told him that his alleged behavior was "not conducive to

getting this matter resolved, and it is important to both
parties that the matter be resolved. As you know, we have

taken eight weeks or more, two months to get to this point."
(Tr. 5411).
Juror 4 denied that he was refusing to deliberate,

stating that he was deliberating "more than many others."
(Tr. 5413). He also denied that he had engaged in vote

bartering. He acknowledged that he had used the phrase

"what if we" and "deal" in the same sentence, but maintained
that the other jurors took his words out of context and he

did not intend to barter. (Tr. 5415-16).

Several times in the course of the ex parte
conference with the court, Juror 4 expressed his frustration

at having to endure insults from other jurors during

deliberations. "I don't think I signed up to endure being

called a jerk, having my skin tone made fun of," he said.
(Tr. 5413). The foreman had asked the other jurors to stop
the insults, Juror 4 reported, "[b]ut the next day, instead

of insults, it moved to physical threats." (Tr. 5414).
The court asked Juror 4 to "keep [his] respect for
[the foreman], because . . . he's trying to do a good job."

(Tr. 5415). Juror 4 agreed, but expressed concern that "a

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deliberate attempt is being made to remove me because I
don't vote with him." (Id.). The court responded, "No, you
don't have to vote with anybody." (Id.).
Later in the conference, the court again

encouraged Juror 4 to work with the foreman, stating, "I
don't think you should proceed on the assumption that he

isn't trying to do a good job. He is trying to do a good
job." (Tr. 5416). But Juror 4 continued to express
frustration:

[M]any people don't agree with me.
Because of that, I have been insulted and
threatened.

. . .
I don't mind the insults. I am a little
concerned about when somebody is going to
have their husband take care of me.

. . .
This is not the kind of thing that I
should have to consider when I'm trying
to decide on a vote on a verdict.

Like I said to him, it is not going to
change my vote. If he thinks that's the
way to do it, no, wrong.

(Tr. 5417).
The court told Juror 4 to "[k]eep an open mind"
and then sent him back to the jury room. (Tr. 5418).

After the ex parte conference, the court read the
Note and the transcript of the conference to counsel on the

record. Defense counsel argued that the deliberative

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process had been tainted and moved for a mistrial. The
court denied the motion and decided to let deliberations

proceed without further communication to the jury.
The following day, July 10, defense counsel

requested that the court also interview Juror 9 to
ameliorate any prejudice that may have resulted from
singling out Juror 4. The court denied this request.

That afternoon, at 3:45PM, the jury sent the

following note:
Your Honor—

While deliberations over the past three
days have been productive, and we feel
more comfortable that we each understand
our fellow juror's [sic] reasoning for
their decisions on the charges presented,
we are still unable to come to a
unanimous decision on all counts.

There is a firm feeling among the
majority of the jurors that further
deliberation will not result in a
unanimous decision.
(Ct. Ex. 62).

The court, after consulting with counsel, asked
the jury to list the counts on which it had reached a

verdict. The jury replied that it had reached a verdict on
Counts One (conspiracy), Two (securities fraud), Three

(securities fraud), Six (wire fraud), and Nine (wire fraud).
The court, with consent of counsel, agreed to take a partial

verdict. The court brought in the jury, and the foreman

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reported a verdict of guilty on each of these five counts.
The jury failed to reach a verdict on Counts Four, Five,

Seven, Eight, and Ten through Fourteen.
Judgment was entered against Collins on March 24,

2010, convicting him of (1) conspiracy to commit securities
fraud, wire fraud, bank fraud, and money laundering, to make
false filings with the Securities and Exchange Commission

("SEC"), and to make material misstatements to auditors in
violation of 18 U.S.C. § 371; (2) securities fraud in

violation of 15 U.S.C. §§ 78j(b) & 78ff; and (3) wire fraud

in violation of 18 U.S.C. § 1343. The district court

sentenced Collins principally to seven years' imprisonment.
He is on bail pending this appeal.

Collins argues that (1) he was deprived of his

right to be present when the court initially failed to

disclose the contents of the Note and conducted an ex parte
conference with a single juror in response to the Note,

(2) he was denied his right to counsel at a critical stage
of the trial, (3) the court erred by making inconsistent
rulings with regard to "lay" opinion testimony, and (4) the

court erred when it denied his request to present expert
testimony on the practice of corporate transactional law.
Because we agree with Collins's first argument, we do not

reach his remaining contentions.

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 DISCUSSION
A. Applicable Law

1) The Right To Be Present

A defendant in a criminal case has the right to be
present at "every trial stage." Fed. R. Crim. P. 43(a)(2);

see United States v. Canady, 126 F.3d 352, 360 (2d Cir.
1997) (right to be present rooted in Sixth Amendment
Confrontation Clause and Fifth Amendment Due Process

clause). "The right to be present has been extended to
require that messages from a jury should be disclosed to

counsel and that counsel should be afforded an opportunity

to be heard before the trial judge responds." United States

v. Mejia, 356 F.3d 470, 474 (2d Cir. 2004) (internal

quotation marks omitted); see Rushen v. Spain, 464 U.S. 114,
119 (1983) (when jury note "relates to some aspect of the

trial, the trial judge generally should disclose the
communication to counsel for all parties") (citing Rogers v.

United States, 422 U.S. 35, 38-40 (1975)); United States v.

Schor, 418 F.2d 26, 29-30 (2d Cir. 1969).
We have explained that the "proper practice" for

handling jury inquiries is as follows:
(1) the jury inquiry should be in
writing; (2) the note should be marked as
the court's exhibit and read into the
record with counsel and defendant
present; (3) counsel should have an
opportunity to suggest a response, and

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 the judge should inform counsel of the
response to be given; and (4) on the
recall of the jury, the trial judge
should read the note into the record,
allowing an opportunity to the jury to
correct the inquiry or to elaborate upon
it.

Mejia, 356 F.3d at 475; accord United States v. Ronder, 639
F.2d 931, 934 (2d Cir. 1981). Allowing counsel to be heard
reduces the risk that the trial court will respond in a way

that prejudices one side. See Ronder, 639 F.2d at 934.
In general, the trial court should not respond to

a jury note in an ex parte manner. Ex parte communications

are "pregnant with possibilities for error." United States
v. U.S. Gypsum Co., 438 U.S. 422, 460 (1978). Specifically,

ex parte communication between the judge and a member of the

jury may unintentionally "drift" into a supplemental
instruction, id. at 462, for which the defendant has a well-

established right to be present, Shields v. United States,

273 U.S. 583, 588-89 (1927)("supplementary instructions

. . . ought to be given either in the presence of counsel or
after notice and an opportunity to be present"); accord
Rogers, 422 U.S. at 38-39. Furthermore, "[u]nexpected

questions or comments can generate unintended and misleading
impressions of the judge's subjective personal views."
Gypsum, 438 U.S. at 460.

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 Gypsum provides one example of an ex parte
exchange between judge and juror that inadvertently resulted

in a constitutional violation. In Gypsum, the foreman
requested a meeting with the trial judge to discuss the

"condition" of the jury. Id. at 431. Counsel "reluctantly"
consented to the meeting. Id. at 432. At the end of the
meeting, the foreman said to the judge, "You are after a

verdict one way or the other." Id. The judge responded,
"Which way it goes doesn't make any difference to me." Id.

The Supreme Court held that this exchange "amounted to a

supplemental instruction" regarding "the jury's obligation
to return a verdict." Id. at 462. The Court found the

conversation particularly "troubling" in light of the fact

that counsel was denied the opportunity to correct any
prejudice that might have resulted from the exchange. Id.
2) Harmless Error

Not every violation of a defendant's right to be

present will result in reversal. Such a violation only
requires reversal if it is not harmless. See United States
v. Blackmon, 839 F.2d 900, 915 (2d Cir. 1988); Krische v.

Smith, 662 F.2d 177, 179 (2d Cir. 1981). There is some
conflicting authority regarding the standard of review
applicable to the harmless error analysis. In United States

v. Fontanez, we stated that a violation of a defendant's

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right to be present is not harmless if his "absence created
'any reasonable possibility of prejudice.'" 878 F.2d 33,

37-38 (2d Cir. 1989) (quoting United States v. Toliver, 541
F.2d 958, 965 (2d Cir. 1976)); see Chapman v. California,

386 U.S. 18, 23-24 (1967) ("[B]efore a federal
constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a

reasonable doubt."). In other instances, however, we have
analyzed this type of case under a more deferential

standard: whether the court can say with "'fair assurance

. . . that the judgment was not substantially swayed by the
error.'" See, e.g., Krische, 662 F.2d at 179 (quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946));

Ronder, 639 F.2d at 935 (citing Schor, 418 F.2d at 30). We
need not decide today which is the appropriate standard. As

discussed below, even under the more deferential "fair

assurance" standard, the trial court's errors were not

harmless.
B. Application

Two principal issues are presented: first,

whether Collins's right to be present at every stage of the
trial was violated; and second, if so, whether the error was
prejudicial.

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 1) Was Collins Deprived of His Right To Be Present?

We consider first the district court's failure to

disclose the contents of the Note and second its ex parte
colloquy with Juror 4.
a) Initial Failure To Disclose The Note

Here, Collins was deprived of his right to be
present when the district court initially chose not to
disclose the contents of the Note. The court received the

Note at 2:15PM on July 9. At approximately 2:30PM, it
informed counsel that it had received a note and that it

would be speaking "privately" with Juror 4. The court did

not reveal anything about the Note, or indicate why it was

necessary to conduct a private interview with a single

juror. It did not solicit alternative courses of action,
and proceeded with the ex parte interview over the

protestation of defense counsel.
In the face of accusations of vote bartering and

other misconduct, the trial court understandably felt the

need to deal with the issue expeditiously. And it is true,
as the government points out, that "the emergency nature of

a communication" may require the court to respond to a note
before it has the opportunity to share the note with counsel

and solicit counsel's input. See Ronder, 639 F.2d at 934.
But the circumstances here were not so exigent as to justify

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depriving defense counsel of an opportunity to be heard.
The government maintains that the Note required the court's

immediate attention because there was a risk that the jury
would reach a poisoned verdict if the court did not react

quickly. (Gov't Br. 100, 110). It is unlikely, however,
that a verdict was imminent. Juror 4 was allegedly refusing
to deliberate, and the alleged attempt to barter had taken

place a week earlier. Even if there were cause for concern,
the court could have instructed the jury to stop

deliberating while it read the Note into the record and

consulted counsel on how to proceed.
b) The Ex Parte Conference with Juror 4

Part of the ensuing ex parte exchange between the

court and Juror 4 further deprived Collins of his right to
be present. Before the court allowed Juror 4 to respond to

the allegations against him, the court stated that his

alleged conduct was "not conducive to getting this matter

resolved, and it is important to both parties that the
matter be resolved." (Tr. 5411). This explicit emphasis on
the importance of resolution amounted to a direct

supplemental instruction. Indeed, such language is a staple
of a modified Allen charge, delivered specifically to stress
the importance of reaching a verdict. See Allen v. United

States, 164 U.S. 492, 501 (1896); Smalls v. Batista, 191

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F.3d 272, 275 n.1 (2d Cir. 1999) ("Allen charge reminds the
jurors about the importance of obtaining a verdict"); see

also 1 L. Sand et al., Modern Fed. Jury Instructions-Crim.
Ch. 9-11. When a supplemental instruction is given ex

parte, without first consulting counsel, it violates a
defendant's right to be present. See Rogers, 422 U.S. at
38-39; Shields, 273 U.S. at 588-89.

To be sure, hindsight is 20/20. The difficulty of
the circumstances the district court faced is not lost upon

us. Indeed, this was a situation in which an able and

experienced trial judge was trying in good faith to ease
serious tensions in the jury room and deal with accusations

of misconduct. Nonetheless, we conclude that the district

court erred in not disclosing the contents of the Note to
Collins and counsel before taking action and in engaging in

an ex parte conversation with Juror 4.
2) Did The Deprivation Constitute Harmless Error?

We turn to the issue of prejudice. Because of the
delicate nature of jury deliberations, even seemingly
innocuous ex parte communications between the court and the

jury can amount to reversible error. See, e.g., Mejia, 356
F.3d at 473, 478 (court received note expressing deadlock
and revealing vote count; court responded that jury should

not reveal vote count, but did not provide further

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instruction); Krische, 662 F.2d at 178 (jury reported
deadlock; court dispatched court officer to the jury room,

who advised the jury to continue deliberations because "it's
not soon enough"). Where, as here, the ex parte

communication involves a supplemental instruction to a
single juror in a minority position, the potential for
prejudice is particularly acute. See United States v.

Zabriskie, 415 F.3d 1139, 1148 (10th Cir. 2005) (reversible
error where court delivered private Allen charge to holdout

juror); United States v. Brown, 426 F.3d 32, 39 (1st Cir.

2005) (discussing potential for prejudice if court were to
single out one juror for questioning).

We cannot say, with "fair assurance," that the

district court's errors in this case did not substantially
affect the verdict. The court singled out a dissenting

juror, and emphasized to him the importance of reaching a

verdict. We cannot ignore the possibility that Juror 4

walked out of the ex parte conference with the impression
that he should not stand in the way of a prompt resolution
of the case. Had the court initially shared the Note with

counsel and solicited counsel's input before responding, any
mistaken impressions might have been avoided. See Krische,
662 F.2d at 180 (counsel's input "could have substantially

affected the content of the message to the jurors"); Ronder,

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639 F.2d at 934-35 ("Had the first note been discussed with
counsel, the [unbalanced] phrases in the response . . .

might well have been avoided . . . ."). Defense counsel
might have requested that they be present during the

interview, or at least urged the court to narrowly tailor
its ex parte inquiry into the alleged misconduct and provide
any additional instructions in open court to the entire

jury.
The government implies that any supplemental

instruction given to Juror 4 was balanced and non-

prejudicial. It points out that the court specifically
reminded Juror 4, "you don't have to vote with anybody."

(Tr. 5415). This reminder, however, was an insufficient

substitute for the more comprehensive cautions that usually
accompany supplemental instructions. See Ronder, 639 F.2d

at 933 (telling jury, "You have a right . . . to stand on

your own independent conviction," not sufficient to balance

out supplementary instruction on importance of reaching
verdict); see also United States v. Ruggiero, 928 F.2d 1289,
1299 (2d Cir. 1991). 3

3
The traditional Allen charge emphasizes the
importance of reaching a verdict, and encourages jurors to
"listen, with a disposition to be convinced, to each other's
arguments." 1 L. Sand et al., Modern Fed. Jury
Instructions-Crim. Ch. 9-11. But it also cautions that (1)
"under no circumstances must any juror yield his
conscientious judgment," and (2) no juror should "ever
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 Furthermore, the district court's apparent failure
to acknowledge Juror 4's complaints of harassment

exacerbated the potential for prejudice in this case. In
the course of the ex parte interview, Juror 4 expressed fear

in light of Juror 9's threat to have her husband "take care
of" him, and frustration at the repeated insults he was
enduring from other jurors. He also conveyed to the court

his belief that there was a concerted effort by the other
jurors to remove him because he did not agree with the

foreman's views. In response, the court simply urged Juror

4 to support the foreman who, in the court's words, was
"trying to do a good job." (Tr. 5415-16). After the

interview, the court made no inquiry into the alleged

behavior of the other jurors and specifically refused
defense counsel's request that it also interview Juror 9.

By ignoring Juror 4's complaints and refusing to conduct a

broader inquiry, the court might have given Juror 4 the

impression that it was taking sides against him.
Furthermore, it might have sent a signal to the rest of the
jurors that the court condoned their behavior towards

Juror 4.

change [his or her] mind just because the other jurors see
things differently, or just to get the case over with." Id.
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 The government argues that the district court's
actions here were "virtually identical" to the district

court's actions in United States v. Chang An-Lo, 851 F.2d
547 (2d Cir. 1988), where we found no reversible error. We

disagree. Chang An-Lo is similar to this case in that the
trial judge did not disclose the contents of a note alleging
jury misconduct before conducting ex parte interviews with

two jurors. Id. at 558. In that case, however, the trial
judge limited the interviews to a factual inquiry, asked

counsel afterwards if they had further suggestions, and

offered counsel the opportunity to interview the jurors
themselves. Id.; see also United States v. Gagnon, 470 U.S.

522, 523-24 (1985) (interview with juror narrowly tailored

to address misconduct and juror's ability to be impartial;
counsel present and permitted to question juror).

Finally, the government argues that Collins could

not have been prejudiced by the district court's errors

because the jury deliberated for a full day after the ex
parte conference before it reached a verdict. (Gov't Br. at
114-15) (citing United States v. Rodriguez, 545 F.2d 829,

830-31 (2d Cir. 1976)). It points out that this Court's
finding of prejudice in Mejia and Krische largely rested on
the short time between the impermissible instruction and the

verdict. See 356 F.3d at 477 (fifty minutes); 662 F.2d at

179-80 (one hour and twenty minutes).

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 We do not think the fact that the jury deliberated
for one full day after the ex parte conference requires us

to find harmless error. See Gypsum, 438 U.S. at 433, 469
(improper colloquy at 12PM, jury returned verdict the next

morning); United States v. Peters, 349 F.3d 842, 845, 849
(5th Cir. 2003) (reversible error where jury returned
verdict day after improper ex parte communication with

foreman); Smalls, 191 F.3d at 281 (length of deliberation
did not diminish coerciveness of supplemental charge).

First, in measuring the risk of prejudice, we look at the

circumstances as a whole, not just the extent of
deliberation after the error. As discussed above, there was

a heightened risk of prejudice in this case because the

court conducted an extensive colloquy with a single juror --
facts that make it readily distinguishable from Mejia,

Krische, and Rodriquez, where the court merely made a terse

statement to the entire jury. Second, in the context of a

highly complex fraud case involving fourteen counts, 4 one
day of deliberations is not a significant amount of time.

It is possible that the mere administration of voting on all
fourteen counts took up a significant portion of that one-

4
By contrast, Mejia involved one count (drug
conspiracy), 356 F.3d at 470-71, Krische involved two
(robbery), 662 F.2d at 177, and Rodriguez involved two
(income tax evasion and filing a false tax return), 545 F.2d
at 830.
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day period. Third, that the foreman sent a note on July 10
reporting that deliberations had been "productive" does not

support the conclusion that Juror 4 was not prejudiced.
Indeed, the foreman had no insight into whether Juror 4 had

come to agree with the other jurors independently, or
whether he had been improperly influenced by his ex parte
conversation with the court.

CONCLUSION

For the reasons stated above, we cannot say with

"fair assurance" that the judgment was not "substantially
swayed" by the district court's errors in this case.

Kotteakos, 328 U.S. at 765. Therefore, those errors were

not harmless. Accordingly, the judgment of the district
court is VACATED and the case is REMANDED for a new trial.

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