Whether defendants were entitled to a new trial under FedRCrimP 33 where the jury was given unadmitted exhibits (& not given some admitted ones) during deliberations; Whether the error was “structural error”; Weaver v Massachusetts; Remmer v United States; Bruton v United States; “Harmless error” review; “Overwhelming evidence” of guilt

Noting that it had not previously considered whether an error such as the one at issue here is structural, the court held that a jury’s exposure to unadmitted exhibits during deliberations with no curative instruction was not structural error. Applying harmless error review, it further held that the district court erred by granting defendants-Maund, Carey, and Brockway a new trial. A jury convicted them of several offenses connected to a murder-for-hire scheme. Months after their conviction, the district court informed defendants that it had mistakenly given the jury 10 unadmitted exhibits during their deliberation and failed to give them 3 admitted exhibits. The appeal primarily concerned two statements related to “Carey’s knowledge of the crimes,” one of which was in testimony proffered outside the jury’s presence by a participant in the scheme who pled guilty. After a Remmer hearing, the district court ruled that these errors were structural under Weaver’s “too hard to measure” standard and granted them a new trial. The government argued “that the error was not structural, the harmless-error standard applies instead, and the error was harmless.” The court agreed. The “jury inappropriately received unadmitted evidence containing a nontestifying codefendant’s statement identifying another codefendant by name. This implicates both Remmer and Bruton. But” it did not have to “specifically decide which type of error occurred, because both Remmer and Bruton errors require harmless-error analysis.” The court noted that “very few errors meet” the Weaver “too hard to measure” threshold. And the court frequently expects “lower courts to measure the effects of Bruton and Remmer errors via harmless-error analysis.” Applying that analysis, the court concluded the error was “most clearly harmless to Carey because the government presented significant other evidence of guilt and the error arguably helped, rather than prejudiced, him.” Given that the evidence did “not directly inculpate Maund, and because the government presented significant other evidence of guilt,” it also found the error harmless to Maund. Finally, as to Brockway, “the significance of the government’s evidence also overwhelms any possible prejudice from the error, making it harmless.” Reversed and remanded.