The following excerpt is from United States v. Melhuish, 19-485 (2nd Cir. 2021):
The third prong of the plain-error inquiry, however, presents a stumbling block for Melhuish, as she fails to establish that the district court's error affected her substantial rights. In certain rare cases we have found sufficient prejudice after a district court communicated privately with a jury without providing counsel an opportunity for input. But we have done so only where the contents of the communications were far more prejudicial. For example, in United States v. Mehta, on which Melhuish relies, the district court met privately with several jurors who expressed concerns that the defendants were lingering outside the courthouse while the jurors left. Id. at 178. The district court responded that the jurors' reports were "disturbing," stated that "once in a while you get somebody that acts inappropriate like that," and assured jurors that security officers would be assigned. Id. These remarks were clearly more harmful than the note at issue here because they indicated the district court's personal views of the defendants. See id. at 181 ("[T]he judge's comments to the jurors strongly implied that the defendants posed some threat of physical danger to the jurors. . . . Had defense counsel been given an opportunity to respond, they likely would have provided an alternative account of the circumstances, and one that could well have fully addressed the jurors' perceived safety concerns.").
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