dissenting in part.
I can certainly accept the majority’s view that the right of the defendant to see a note from the jurors and comment on the judge’s response may in some cases be harmless. See at 329. The majority, however, gives inadequate weight to the principle that “[i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during trial, with full knowledge of the parties.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). We may assume for the moment that post-conviction proceedings are generally adequate to determine the effect of improper communications with the jury — a matter to which I shall turn later. But in any event, the defendant’s burden is only to establish the improper contact; once shown, “ ‘the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant.’ ” Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984) (per curiam), quoting Remmer v. United States, 347 U.S. at 229, 74 S.Ct. at 451. I am unable to see how the government met its burden here.
The majority concludes that the court’s answer to the foreperson’s second note and its failure to inform Widgery or his counsel before taking action did not affect Widgery’s substantial rights. At 331. As a basis for its conclusion, the majority points to the district court’s finding that the jury was never deadlocked — a conclusion which is allegedly demonstrated by the jurors’ reaction in open court. The record, however, contrary to the majority’s description of the proceedings,1 does not support such a finding. Accordingly, I question the majority’s conclusion that it was unlikely that the foreperson’s note and the court’s response had any influence on the deliberations. See at 328.
We do not know, as the majority speculates, that the foreperson did not discuss the court’s response with the other jurors. At 330. Rather, the record suggests otherwise. The district court made no finding on this matter. The foreperson testified that the jury did discuss the second note and the court’s answer, Transcript, Hearing of December 10, 1984 at 27, 48, and no other juror testified to the contrary. In fact, no one questioned the other jurors with respect to this matter. But this issue aside, influence on a single juror may be enough to necessitate reversal and remand. Kiser v. Bryant Electric, 695 F.2d 207, 215 (6th Cir.1982), citing Aluminum Company of America v. Loveday, 273 F.2d 499, 500 (6th Cir.1959) (per curiam), cert. denied, 363 U.S. 802, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). See also Rushen v. Spain, 464 U.S. 114, 130 n. 9, 104 S.Ct. 453, 462 n. 9, 78 L.Ed.2d 267 (Stevens, J., concurring) (jury deliberations “as a whole” influenced if one juror is improperly influenced). While it is impossible to say for certain what effect, if any, the judge’s response had on all the other jurors, I believe that the response may well have prejudicially influenced at least the foreperson’s deliberations. In fact, the foreperson made clear that the judge’s response to her deadlock *332note left her bewildered and was a factor in her decision-making.2 Because I cannot say that the ex parte contact here was harmless (even under the less rigorous Rule 52(a) standard invoked by the majority), I am compelled to conclude that the government failed to meet the burden imposed by Remmer v. United States.
I am also troubled by the majority’s conclusion that the trial judge’s failure to show jurors’ notes to counsel and allow them to comment before responding does not rise to the level of a constitutional violation. See at 329. A judge’s failure to show jurors’ notes to counsel and allow them to comment before responding undeniably violates Fed.R.Crim.P. 43(a). In addition, such an error may at least in some instances violate the constitution. Cf. at 329. The Supreme Court has recognized that a defendant has a due process right to be present contemporaneously at judge-juror communications when required “to ensure fundamental fairness or a ‘reasonably substantial ... opportunity to defend against the charge.’ ” United States v. Gagnon, — U.S. -, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam), citing Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Defense participation at the time the jury informs the judge of an apparent deadlock is a matter of critical moment to a defendant. See United States v. Chaney, 559 F.2d 1094, 1098 (7th Cir.1977) (misunderstood instruction in response to possibly hung jury would “imped[e] a defendant’s right to trial by the impartial jury and to due process”). The jury’s notification to the court of a deadlock in its deliberations hardly qualifies as only a “minor occurrence” (or a “single glitch”) in the course of a criminal trial. Cf. United States v. Gagnon, 105 S.Ct. at 1484-85.3 The majority acknowledges that a defendant has a right under Rule 43 to know the contents of a juror’s note and to protest the judge’s answer. At 330. I think such a right implicates the minimum protections to which a defendant is entitled under the Due Process Clause: the right to notice and an opportunity to be heard in a meaningful manner and at a meaningful time. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The majority, however, inexplicably passes on without so much as a word on this most basic of procedural safeguards. Quite to the contrary, it has concluded that “if the dispute is about the timing of the protest it is not one about fundamental constitutional rights.” At 330 (emphasis added).
As noted, I can agree that “the prejudicial effect of a judge’s failure to discuss with counsel communications from and to the jury ‘can normally be determined by a post-trial hearing.’ ” At 329. Yet “normally” is not “always.” See Payne v. Wood, 775 F.2d 202, 206 (7th Cir.1985). The circumstances which led the Supreme Court in Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam), to conclude that the prejudicial effect of the unrecorded ex parte communications which took place there could be adequately remedied by a post-trial hearing are absent here. In Rushen the ex parte communication dealt with a juror’s bias in a matter unrelated to the specific issues that the juror was called upon to decide.4 In*333deed, the defendant in Rushen did not contend that whatever bias the juror harbored against him was the result of the conversations with the trial judge. As such, the case is not very different from one where defense counsel has learned of the juror’s potential bias in the course of the trial, and the trial judge has denied a motion for a hearing in the middle of trial, but instead has held a post-trial hearing. Rushen v. Spain, 464 U.S. at 126 n. 5, 104 S.Ct. at 460 n. 5 (Stevens, J., concurring). The post-trial hearing in Rushen established that the incident did not impair the juror’s impartiality. The juror repeatedly testified to this effect. Rushen v. Spain, 464 U.S. at 120-21, 104 S.Ct. at 457. The Court further emphasized that the ex parte communication was “innocuous” and did not involve “any fact in controversy or any law applicable to the case.” Id. at 121, 104 S.Ct. at 457. The circumstances of the trial judge’s error here, however, are of a more serious and elusive nature, and the prejudicial effect of the error is not of a sort that can be adequately determined at a post-trial hearing.
Cases such as the one before us frequently turn upon the testimony of the juror who has approached the judge. See Smith v. Phillips, 455 U.S. 209, 217 n. 7, 102 S.Ct. 940, 946 n. 7, 71 L.Ed.2d 78 (1982). At the same time, the Federal Rules of Evidence severely limit a defendant’s inquiry into the effect of outside contact on the jury’s deliberations. See Fed.R. Evid. 606(b).5 I cannot help concluding that where, as here, a defendant is precluded from offering, due to the timing of the hearing, significant and relevant testimony, such a hearing is frequently meaningless.6
The majority, however, essentially brushes aside the important ramifications of the trial judge’s error by clinging to the district court’s finding that the jury was never deadlocked, a finding based upon subsidiary facts for which I find no support in the record.7 I therefore, respectfully dissent.
. As characterized by the majority, "[tjhe judge ... asked whether the jurors thought they could reach a verdict if given additional' time; all jurors nodded.” At 328. The majority, however, obscures the true nature of the court’s inquiry. The court in fact asked "how many of you feel that you will be able to arrive at a verdict as to any one or more defendants as to any one or more counts if given additional time in which to deliberate?” The complications inherent in this question make it difficult to conclude that the jury was not deadlocked. The questionable aspect of the majority's reasoning is further reflected by the fact that the jury quite promptly afterward came back with a partial verdict, convicting Widgery on only two of sixteen counts and acquitting the other defendant on two counts.
. The foreperson testified that, upon receipt of the court’s answer:
I didn’t know what to do after that. I mean I didn’t send any more notes that I recall that we were deadlocked. I mean we just decided he had said we had to keep trying.
Transcript, Hearing of December 10, 1984 at 27.
. The majority concedes that the deadlock note and the trial judge's action in response pose a difficult problem. At 328. "The judge did not know at the time whether the jury was deadlocked____ And he should have known that there was a risk that the foreman would have interpreted his answer as a direction to keep deliberating come what may____’’ Id. Indeed, the district court observed "that the jury was eleven to one for conviction. [The foreperson] being the one." [sic] Transcript, Hearing of December 10, 1984 at 131.
. During the course of a 17-month long trial, the prosecution introduced certain evidence to impeach a defense witness. The testimony prompted one juror’s recollection of the murder of a childhood friend. The juror twice ex*333pressed her concern to the trial judge that she might lose her composure if the murder of her friend were explored in more detail. Quite collaterally the evidence also raised a question of imputed bias against the Black Panther Party and therefore against defendant Spain through his membership in the Black Panther Party. (The testimony revealed that the murderer of the juror’s friend was a Black Panther.) On each occasion the judge asked the juror whether her disposition of the case would be affected, and she assured him that it would not. The judge made no record of either conversation, and he did not inform the defendants or their counsel about them. Rushen v. Spain, 464 U.S. at 115-16, 104 S.Ct. at 454.
. Rule 606(b) reads as follows:
Inquiry into validity of verdict or indictment. —Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
Fed.R.Evid. 606(b).
. While a juror may not testify as a witness in the trial of the case in which he is sitting as a juror, Fed.R.Evid. 606(a), the Rules do not otherwise prohibit inquiry of a juror before a verdict is reached. See Fed.R.Evid, 606(b).
. No juror, other than the foreperson, testified as to the jury’s deadlocked deliberations. While one juror testified that she did not know whether there were any notes written to the court, no juror was asked about the alleged deadlock, and therefore there was no other testimony on this subject.