concurring in the judgment:
I join in the judgment reached by my colleagues because (1) the issue brought before us could so easily have been avoided, and (2) it is probably appropriate to conclude that the government did not “demonstrate beyond a reasonable doubt that the violation of ... defendant’s right of confrontation was harmless error.” United States v. Toliver, 541 F.2d 958, 965 (2d Cir.1976).
As we stated in United States v. Crutcher, 405 F.2d 239 (2d Cir.1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969), however, the cases supporting the harmless error rationale and result generally “involve communications in the absence of the defendant between the court and the jury after deliberations had begun.” Id. at 244. As to constitutional error, furthermore, we have held that a read-back of testimony to the jury in the absence of the defendant did not provide a basis for habeas relief. United States v. Jackson, 263 F.2d 282, 283 (2d Cir.1959).
I write separately, therefore, to note that there were in this case two separate and easily avoided instances of proceedings in the defendant’s absence during the jury’s deliberations, and to stress my view that the result reached here should not be taken to establish any general rule that such violations of Fed.R.Crim.Proc. 43(a) ordinarily result in prejudice calling for reversal of the related conviction and a new trial.