Petition for Writ of Certiorari — Bryon Brockway, Petitioner v. United States

CASE NO.

INTHE

SUPREME COURT OF THE UNITED STATES

BRYON BROCKWAY, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FIOLAI PARKER, PLLC

HEATHER G. PARKER, BPR #30293

Counsel of Record

302 N. Spring Street

PO Box 398

Murfreesboro, TN 37133-0398

615-896-4154

heatherparker@fiolaparkerlaw.com

Attorney for Bryon Brockway

QUESTIONS PRESENTED

1. Where a district court had improperly provided the jury with two unadmitted

exhibits after those exhibits had been the subject of substantial discussion and

one codefendant's decision not to admit the exhibits fundamentally altered the

trial strategy of another defendant, did the district court err in finding

structural error?

2. What is the proper standard of proof at a hearing to determine whether the

effects on a jury of improperly admitted evidence were harmless pursuant to

Remmer v. United States, 347 U.S. 227 (1954)?

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner, the Defendant/Appellee below, is Bryon Brockway.

Respondent is the United States of America.

LIST OF PROCEEDINGS

1. Sixth Circuit Court of Appeals, Case No. 24-5932, United States of America v.

Erik Charles Maund et al., 167 F.4th 941 (6th Cir. 2026).

2. United States District Court for the Middle District of Tennessee, Case No.

3:21-CR-00288, United States v. Erik Maund et al., memorandum opinion,

2024 WL 4217518 (M.D. Tenn. Sept. 17, 2024).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................ i

LIST OF PARTIES TO THE PROCEEDINGS ............................................... i

LIST OF PROCEEDINGS ............................................................................... i

TABLE OF CONTENTS .................................................................................. ii

TABLE OF APPENDICES .............................................................................. iii

TABLE OF AUTHORITIES ............................................................................ iv

INTRODUCTION ............................................................................................ 1

OPINIONS AND ORDERS BELOW ............................................................... 1

JUSRISDICTION ............................................................................................ 2

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED ............. 2

STATEMENT OF THE CASE ......................................................................... 2

I.

PROCEDlJRAL HISTORY ...................................................................... 2

II.

RELEVANT FACTS .............................................................................. 3

REASONS FOR GRANTING THE WRIT ...................................................... 5

I.

TO PREVENT ERRONEOUS DEPRIVATIONS. OF THE RIGHT TO A FAIR

TRIAL, THE COURT MAY CLARIFY THE STANDARD ~OR DETERMINING

WHETHER AN ERROR IS "STRUCTlJRAL" UNDER WEA VER . .................... 5

II.

THE COURT MAY RESOLVE A RECOGNIZED AND WELL-ESTABLISHED

CIRCUIT-SPLIT REGARDING THE STANDARD OF PROOF FOR HARMLESSERROR ANALYSIS UNDER REMMER . .................................................... 8

CONCLUSION ................................................................................................. 9

iii

TABLE OF APPENDICES

APPENDIX.A:

United States of America v. Erik Charles Maund et al., 167 F.4th

941 (6th Cir. 2026) ...................................................... A00l-022

APPENDIX B:

United States v. Erik Maund et al., Case No. 3:21-CR-00288, 2024

WL 4217518 (M.D. Tenn. Sept. 17, 2024) (Memorandum Opinion)

..................................................................................... A023-54

iv

TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante, 499 U.S. 279 (1991) ................................................... 5

Crane v. Kentucky, 476 U.S. 683 (1986) .......................................................... 6

Remmer v. United States, 347 U.S. 227 (1954) ............................................... passim

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ................................... 7, 8

United States v. Lanier, 988 F.3d 284 (2021) ................................................. 9

United States u. Umeti, 167 F.4th 687 (4th Cir. 2026) ................................... 9

Washington v. Texas, 388 U.S. 14 (1967) ........................................................ 6

Weaver v. Massachusetts, 582 U.S. 289 (2017) ............................................... passim

CONSTITUTIONAL PROVISIONS AND OTHER STATUTES

U.S. Const. amend. VI ..................................................................................... 2, 6, 7

18 u.s.c. § 3231 ............................................................................................... 3

18 u.s.c. § 1958 ............................................................................................... 1, 2

18 u.s.c. § 1201 ............................................................................................... 1, 2

18 U.S.C. § 1254 ............................................................................................... 2

1

INTRODUCTION

Bryon Brockway was indicted, tried, and convicted on three counts: (1)

conspiracy to commit murder-for-hire in violation of 18 U.S.C. § 1958; (2) kidnapping

conspiracy in violation of 18 U.S.C. § 1201(a) and (c); and (3) kidnapping resulting in

death in violation of 18 U.S.C. § 120l(a)(l) and (2). After Mr. Brockway and his

codefendants were convicted, the trial court discovered that the jury was exposed to

several exhibits during deliberations that had not been introduced into evidence.

Finding that this exposure amounted to structural error that infected the entirety of

the trial process, the District Court granted the Mr. Brockway and his codefendants

a new trial. The United States appealed the District Court's Order granting a new

trial, and the Sixth Circuit Court of Appeals reversed. Mr. Brockway now urges this

Court to grant his Petition for Writ of Certiorari to clarify the standard for

determining whether an error is a "structural error" under Weaver and its progeny

and to resolve a circuit split regarding the burden of proof at Rem mer hearings.

OPINIONS AND ORDERS BELOW

The opinion of the Sixth Circuit Court of Appeals, App. A00l-022, is reported

at 167 F.4th 941. The district court's memorandum and order granting the

petitioner's motion for new trial is unpublished. App. A023-A054, United States v.

Erik Maund et al., Case No. 3:21-CR-00288, 2024 WL 4217518 (M.D. Tenn. Sept. 17,

2024).

2

JURISDICTION

The Court has jurisdiction over this matter pursuant to 18 U.S.C. f 1254, as

the Sixth Circuit Court of Appeals issued an opinion on February 23, 2026.

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the Assistance of Counsel for

his defence. U.S. Const. amend. VI.

STATEMENT OF THE CASE

I.

PROCEDURAL HISTORY

Bryon Brockway was initially indicted in the District Court for the Middle

District of Tennessee on November 29, 2021, alongside three codefendants. On July

25, 2022, the United States filed a superseding indictment, charging Mr. Brockway

with one violation each of 18 U.S.C. § 1958, 18 U.S.C. § 120l(a)(c), and 18 U.S.C.

§ 1201(a)(l) and (2).

The case proceeded to trial and on November 17, 2023, the jury found Mr.

Brockway guilty as charged on all three counts. On January 29, 2024, the district

court informed the parties that it had discovered that the jury had been exposed to

several exhibits during deliberations that had not been introduced into evidence.

3

Following multiple rounds of briefing and a Remmer hearing, the district court

entered an order on September 17, 2024, grating the defendants a new trial. App.

A019-A050.

The United States timely appealed the district court's order. The Sixth Circuit

Court of Appeals filed its Opinion on February 23, 2026, reversing the district court's

grant of a new trial and remanding for further proceedings. The Opinion was issued

pursuant to the court's jurisdiction over the case pursuant to 18 U.S.C. § 3231. App.

A00l-022.

II.

RELEVANT FACTS

Mr. Brockway and his codefendants were alleged to have engaged in a complex

murder-for-hire and kidnapping scheme in Nashville, Tennessee. Prior to trial, Mr.

Brockway grew concerned that the statements of his non-testifying codefendants

would be used against him. Further, he feared that his codefendants, and particularly

Adam Carey, planned to argue that Mr. Brockway was the driving force behind the

killings. Specifically, Mr. Brockway foresaw that Mr. Carey would argue that he had

forced Mr. Carey's hand in carrying out the killing. Consequently, Mr. Brockway, and

each of his codefendants, moved the district court to sever their cases. The district

denied the defendants' motions to sever, arguing that any potential Bruton issues

could be avoided with proper redactions.

As the case progressed to trial, Mr. Carey's theory of the case came into focus.

It became clear to the parties and the district court that Mr. Carey intended to argue

that he was the hapless rube and that Mr. Brockway had used the implicit threat of

4

violence to coerce him into carrying out the alleged conspiracy. Outside of the

presence of the jury, the district court considered two pieces of evidence. Mr. Carey

and Mr. Brockway each wished to admit prior statements of the other party, with

each statement lending support to the submitting party's theory of the case and

tending to incriminate the objecting party. The district court informed the parties

that if Mr. Carey introduced Mr. Brockway's statement, it would open the door for

Mr. Brockway to introduce his rebuttal evidence. Further, recognizing that Mr.

Carey's defense would moonlight as a prosecution of Mr. Brockway, the district court

rearranged the order of proof and closing arguments so that Mr. Brockway would

present his proof and arguments after Mr. Carey.

Later, Mr. Carey sought to introduce Mr. Brockway's statement. But upon

receiving the district court's reminder that admitting the statement would open the

door for Mr. Brockway to admit Mr. Carey's statement, Mr. Carey ultimately decided

not to enter the statement into evidence. However, Mr. Carey asked the district court

to add the recording and transcript of Mr. Brockway's statement to the record for

identification. Because Mr. Carey did not enter Mr. Brockway's statement into

evidence, Mr. Brockway did not seek to admit Mr. Carey's statement or any other

rebuttal evidence to the statement, nor did he address the statement in his

arguments. Following arguments and deliberation, the jury convicted Mr. Brockway

on all three counts.

After the dust had settled on Mr. Brockway's trial, the district court informed

him and the other parties that there had been an error regarding the evidence that

5

was submitted to the jury during deliberations. The district court had failed to

provide three exhibits that were properly admitted and had erroneously provided

several exhibits that had not been admitted. Among the exhibits that the court

improperly provided to the jury were the recording and transcript of Mr. Brockway's

statement, which Mr. Carey had requested the court add to the record only for

purposes of identification. Following a Remmer hearing, the district court found that

all the jurors had likely listened to the recording, and at least one juror had read the

transcript.

RESASONS FOR GRANTING THE WRIT

I.

To PREVENT DEPRIVATIONS OF THE RIGHT TO PRESENT A DEFENSE, THE COURT

MAY ENSHRINE THE ERROR BELOW AS STRUCTURAL AND CLARIFY THE STANDARD

FOR DETERMINING WHETHER AN ERROR IS "STRUCTURAL" UNDER WEA VER.

In Arizona v. Fulminante, the Court outlined the distinction between ordinary

trial errors, which can be "quantitatively assessed in the context of other evidence

presented," and structural errors, which affect "the constitution of the trial

mechanism." 499 U.S. 279, 308-09 (1991). The former are amenable to harmlesserror analysis, while the latter warrant a new trial without recourse to such

analysis. Id. "The purpose of the structural error doctrine is to ensure insistence

on certain basic, constitutional guarantees that should define the framework of

any criminal trial." Weaver v. Massachusetts, 582 U.S. 289, 294-95 (2017).

Although the Court has considered on several occasions which errors rise to the

level of structural, it has not delineated a brightline rule for making this

determination. See id.

6

The Court. has previously held that the Sixth Amendment protects a

defendant's right to have the opportunity "to be heard in his defense," and that

this right is fundamental in our justice system. Washington v. Texas, 388 U.S. 14,

17-19 (1967). The Court has defined as the right to "a meaningful opportunity to

present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690-91(1986)

(citing California v. Trombetta, 467 U.S. 479, 485 (1984). Mr. Brockway was

denied this right in that he was not provided with notice of the evidence against

him that would be considered by the jury, nor was he given an opportunity to rebut

that evidence. The district court recognized from early in the proceedings that Mr.

Brockway would not be able to mount an effective defense if the jury were

presented with evidence of his statement and he was not given a chance at

rebuttal. In recognition of this fact, the district court went so far as to rearrange

the order in which the defendants would present their proof and closing

arguments. As such, the error in this case deprived Mr. Brockway of the

opportunity to present a complete defense, a right that pervades the entirety of

the trial process and warrants a new trial without recourse to harmless-error

analysis. By granting Mr. Brockway's petition, the Court will receive the

opportunity to enshrine a defendant's right to present a complete defense,

including the right to notice of the inculpatory evidence being presented to the

jury and the right to rebut such evidence, among the framework-defining

guarantees that require "structural error" protection. See Weaver, 582 U.S. at

294-95.

7

In Weaver v. Massachusetts, the Court provided three rationales it had

previously used when categorizing an error as structural. 582 U.S. 289, 295 (2017).

First, errors had been found to be structural where "the right at issue is not

designed to protect the defendant from erroneous conviction but instead protects

some other interest," such as a defendant's right to represent himself or the right

to a public trial. Id. Second, errors had been found be structural where "the effects

of the error are simply too hard to measure." Id. Finally, errors had been found to

be structural where "the error always results in fundamental unfairness." Id. at

296. However, the Court noted that "[t]hese categories are not rigid," and did not

hold that they were the only potential rationales for finding an error structural.

Id. Mr. Brockway's petition provides the Court with an ideal vehicle to clarify the

standard by which lower courts can determine whether an error is structural or,

rather, is subject to harmless-error analysis.

Additionally, Mr. Brockway submits that the court of appeals' erred in finding

that the effects of the error at trial below were not too difficult to measure. In

United States v. Gonzalez-Lopez, the Court found that harmless-error analysis

was inapplicable when another right protected by the Sixth Amendment was

violated-namely, the right to choose one's counsel. 548 U.S. 140, 145 (2006). The

Court reasoned that harmless-error analysis in that case would amount to "a

speculative inquiry into what might have occurred in an alternate universe." Id.

at 150.

8

During the trial below, at the point when Mr. Carey decided whether to

introduce Mr. Brockway's statement into evidence, two alternative universes

stretched out before him and all those present. In one, Mr. Brockway's statement

would come in, but Mr. Brockway would receive notice of it and an opportunity to

rebut with evidence and arguments .. In the other, the statement would not come

in, it would not be considered by the jury, and Mr. Brockway would provide no

rebuttal. Therefore, in attempting to conduct harmless-error analysis, in

attempting to determine if the jury would have reached a different result had the

error not occurred, the appellate court was required to conduct "a speculative

inquiry into what might have occurred in an alternate universe." See GonzalezLopez, 548 U.S. at 150. Accordingly, the effects of the constitutional violation

below were too difficult to measure, and the appellate court erred in failing to find

structural error.

II.

THE COURT MAY RESOLVE A RECOGNIZED AND WELL-ESTABLISHED CIRCUITSPLIT REGARDING THE STANDARD OF PROOF FOR HARMLESS-ERROR ANALYSIS

UNDER REMMER.

In the event that the Court finds that the error here is not structural, Mr.

Brockway's petition provides a vehicle for the Court to resolve a well-recognized

circuit split regarding the burden of proof applicable to hearings conducted pursuant

to Remmer v. United States, 347 U.S. 227 (1954). In Remmer, the Court established

that when unauthorized private communication or contact is made with the jury

during a criminal case, a hearing is required to determine whether the contact

prejudiced the defendant. Id. at 229. In determining whether the defendant was

prejudiced, "the burden rests heavily upon the government ...." Id.

;-

9

Despite the language in Remmer explicitly stating that the burden rests

heavily upon the government, the Sixth Circuit continues to place the burden of proof

at such hearings on the defendant. See e.g., United States v. Lanier, 988 F.3d 284,

294-95 (2021). The Sixth Circuit is the only circuit to place this burden on the

defendant, rather than the government. Id. at 295, n. 13 (citing United States v.

Zelinlw, 862 F.2d 92, 95 (6th Cir. 1988); Sheppard v. Bagley, 657 F.3d 338, 350 n.1

(6th Cir. 2011) (Merritt, J., dissenting); Eva Kerr, Prejudice, Procedure, and A Proper

Presumption: Restoring the Remmer Presumption of Prejudice in Order to Protect

Criminal Defendants' Sixth Amendment Rights, 93 IOWAL. REV. 1451, 1476 (2008));

see also e.g., United States v. Umeti, 167 F.4th 687, 694 -95 (4th Cir. 2026) (finding

that extraneous contact creates a rebuttal presumption of prejudice that the

government bears the burden of overcoming). Although the appellate court below

found that the evidence in this case was sufficient to find the error harmless

regardless of which party bore the burden of proof, this petition provides the Court

with an opportunity to resolve this circuit split and bring the Sixth Circuit in line

with the other circuits and binding precedent of this Court.

CONCLUSION

The Petition for Writ of Certiorari should be granted to allow the Court to

clarify which errors qualify as "structural errors" and resolve an outstanding circuit

split regarding the proper burden of proof at Rem mer hearings.

IO

Respectfully Submitted,

FIOLA I PARKER, PLLC

302 N. Spring St.

P.O. Box 398

Murfreesboro, TN 37133

615.896.4154

heatherpar ker@fiolapar kerlaw .com

Attorney for Bryon Brockway

APPENDIX A

United States of America v. Erik Charles Maund et al., 167 F.4th 941 (6th Cir. 2026)

l

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Kelly L. Stephens

Clerk

100 EAST FIFTH STREET, ROOM 540

POTIER STEWART U.S. COURTHOUSE

CINCINNATI, OIDO 45202-3988

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: February 23, 2026

Mr. John M Bailey IV

Law Office

330 Franklin Road

Suite 135A-427

Brentwood, TN 37027

Mr. Samuel Bassett

Minton, Bassett, Flores & Carsey

1100 Guadalupe Street

Austin, TX 78701

Mr. Luke Austin Evans

Fiala Parker

P.O. Box 398

Murfreesboro, TN 37133

Ms. Brooke Carey Farzad

Office of the U.S. Attorney

719 Church Street

Suite 3300

Nashville, TN 37203

Mr. Nicholas Julian Goldin

Office of the U.S. Attorney

719 Church Street

Suite 3300

Nashville, TN 37203

Mr. David Michael Gonzalez

Sumpter & Gonzalez

1100 B Guadalupe Street

Austin, TX 78701

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Mr. Robert E. McGuire

Office of the U.S. Attorney

719 Church Street

Suite 3300

Nashville, TN 37203

Mr. Perry Minton

Minton, Bassett, Flores & Carsey

1100 Guadalupe Street

Austin, TX 78701

Ms. Heather Graves Parker

Fiola Parker

P.O. Box 398

Murfreesboro, TN 37133

Mr. Benjamin H. Perry

40 Music Square, E.

Suite 100

Nasqville, TN 37203

Mr. John-David H. Thomas

Barnes & Thornburg

1600 West End Avenue

Suite 800

Nashville, TN 37203-3447

Re: Case No. 24-5932, USA v. ErikMaund, et al

Originating Case No. 3:21-cr-00288

Dear Counsel,

The court today announced its decision in the above-styled case.

Enclosed is a copy of the court's published opinion together with the judgment which has

been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

Kelly L. Stephens, Clerk

Cathryn Lovely

Deputy Clerk

cc: Ms. Lynda M. Hill

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Enclosures

Mandate to issue.

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit 1.O.P. 32.1 (b)

File Name: 26a0050p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 24-5932

v.

ERIK CHARLES MAUND; BRYON BROCKWAY; ADAM

CAREY,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:21-cr-00288-William Lynn Campbell Jr., District Judge.

Argued: December 11, 2025

Decided and Filed: February 23, 2026

Before: MOORE, THAPAR, and RITZ, Circuit Judges.

COUNSEL

ARGUED: Nicholas J. Goldin, UNITED STATES ATTORNEY'S OFFICE, Nashville,

Tennessee, for Appellant. David M. Gonzalez, SUMPTER & GONZALEZ, L.L.P ., Austin,

Texas, for Appellee Maund. • Luke A. Evans, FI OLA PARiffiR, Murfreesboro, Tennessee, for

Appellee Brockway. Benjamin H. Perry, LAW OFFICE OF BENJAMIN H. PERRY, Nashville,

Tennessee, for Appellee Carey. ON BRIEF: Nicholas J. Goldin, Robert E. McGuire, Rascoe

Dean, Brooke Carey Farzad, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee,

for Appellant. David M. Gonzalez, SUMPTER & GONZALEZ, L.L.P., Austin, Texas, Samuel

E. Bassett, Perry Q. Minton, MINTON, BASSETT, FLORE & CARSEY, Austin, Texas, JohnDavid H. Thomas, BARNES & THORNBURG, L.L.P., Nashville, Tennessee, for Appellee

Maund. Luke A. Evans, FIOLA PARiffiR, Murfreesboro, Tennessee, for Appellee Brockway.

Benjamin H. Perry, LAW OFFICE OF BENJAMIN H. PERRY, Nashville, Tennessee, John

Bailey, Brentwood, Tennessee, for Appellee Carey.

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United States v. Maund, et al.

OPINION

RITZ, Circuit Judge. A jury convicted Erik Maund, Adam Carey, and Bryon Brockway

of various offenses related to a murder-for-hire. During jury deliberations, however, the district

court inadvertently gave the jury several unadmitted exhibits and failed to provide some of the

admitted exhibits. The district court only realized its error months after the verdict. Upon

receiving notice of the error, defendants each moved for a new trial.

After a hearing to

. determine the jury's exposure to the unadmitted exhibits, the district court found its error to be

structural and granted a new trial. The government appealed, arguing that the error was not

structural, the harmless-error standard applies instead, and the error was harmless. We agree and

reverse.

I.

This case involves a murder-for-hire scheme resulting in the deaths of Holly Williams

and her boyfriend William Lanway. In February 2020, Maund had an affair with Williams in

Nashville. After the affair, Lanway blackmailed Maund, demanding money in exchange for not

disclosing the affair to Maund's family.

Maund then hired Gilad Peled to deal with the

blackmail problem. Peled, in turn, hired several people-including Brockway, Carey, Anthony

Repinski, and David Conaway-to surveil Williams and Lanway. In March 2020, Maund paid

Peled to have Williams and Lanway murdered, and Brockway and Carey carried out the murders

in Nashville that month.

A.

A grand jury indicted Maund, Brockway, and Carey for a murder-for-hire conspiracy,

kidnapping, and a kidnapping conspiracy resulting in death.

The district couti denied the

defendants' motions to sever and tried the defendants jointly.

In November 2023, a jury

convicted all three defendants of the murder-for-hire conspiracy; the jury also convicted

Brockway and Carey of kidnapping and conspiracy to commit kidnapping.

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A little over two months after the convictions, however, the district court discovered that

the evidence delivered to the jury room for deliberations did not exactly match the evidence

admitted at trial. The court had erroneously provided the jury with ten unadmitted exhibits 1 and

failed to deliver three admitted exhibits. 2 Two of the unadmitted exhibits erroneously given to

the jury (Carey Exhibits 3 and 4), and their relation to a separate proffer of evidence (Peled's

testimony about Carey's knowledge of the crime), are the primary focus of this appeal.

B.

At trial, the government presented significant evidence of defendants' guilt, most of

which was not compromised by the court's error. We briefly summarize that evidence here.

The government presented both documentary and testimonial evidence inculpating

Maund, Carey, and Brockway.

For example, the government introduced recorded and

transcribed conversations in which Maund, Carey, and Brockway separately discussed their

involvement in the murder-for-hire plot. In these conversations, Carey and Brockway each

further agreed to an additional, government-invented murder-for-hire scheme. Additionally,

Peled (who pled guilty) gave testimony directly implicating Maund, Carey, and Brockway in the

crimes, and Repinski and Conaway (who were not charged) gave testimony directly implicating

Carey and Brockway.

This testimony was corroborated via emails and messages between

defendants about the plot. Moreover, one of Maund' s coworkers testified that he had introduced

Maund to Peled so that Peled could help Maund handle Lanway' s extortion attempts.

The government's evidence also placed Carey and Brockway near the crimes when they

occurred. For example, Carey and Brockway stayed in Nashville immediately prior to and

during the murders, and then left immediately after. Brockway also rented a car in Nashville that

matched the vehicle captured on surveillance footage driving near the site where the victims'

1 Several of these unadmitted exhibits included unredacted versions of admitted exhibits. The ten

unadmitted but provided exhibits included: Gov. Ex. 254 (photo from Carey property); Gov. Ex. 257 (same); Gov.

Ex. 359 (CD listing Maund's wire transfers); Carey Ex. 3 (unredacted recording); Carey Ex. 4 (unredacted

transcript); Maund Ex. 8 (bank records); Maund Ex. 9 (same); Maund Ex. 51 (spreadsheet of messages between

victims); Maund Ex. 59 (video surveillance ofWilliams's apartment); and Maund Ex. 78 (same).

2The three admitted but not provided exhibits included: Gov. Ex. 103 (CD with messages between parties),

Gov. Ex. 112 {CD with phone records), and Maund Ex. 81 (USB with aerial surveillance ofMaund's residence).

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Further, the government produced surveillance footage placing Carey

outside Williams's apartment immediately prior to the murders.

Finally, the government introduced financial records inculpating Brockway and Carey

and showing that Maund transferred around $150,000 to Peled on the afternoon of the murders.

C.

This appeal primarily concerns two statements, both relating to Carey's knowledge of the

crimes. The first statement-Brockway saying that "Adam [Carey] didn't know any of this

shit"-was part of Carey Exhibits 3 and 4. RE 496-3, Carey Ex. 4, PageID 5721. The second

statement-Carey saying "nobody cares about [the murder victims]"-came from a portion of

Peled's testimony proffered outside the jury's presence.

RE 458, Trial Tr., PageID 3531

(citation modified). We discuss the procedural history of each statement below.

In October 2021, Conaway cooperated with the government to covertly record a

conversation with Brockway. Versions of this conversation in recorded and transcribed form

became Government Exhibits 131 and 132, which were redacted and admitted, and Carey

Exhibits 3 and 4, which were unredacted and unadmitted.

In the conversation, Brockway

discussed the Nashville murder-for-hire scheme and agreed to participate in an additional,

government-invented murder-for-hire scheme proposed by Conaway.

The critical part of the conversation is a single sentence where Brockway says: "Adam

[Carey] didn't know any of this shit." RE 496-3, Carey Ex. 4 (Unredacted), PagelD 5721; RE

363-4, Gov. Ex. 132 (Redacted), PagelD 2084. This statement suggested a relative lack of

knowledge on Carey's part regarding the murder-for-hire scheme.

The defendants each moved to exclude the entirety of Brockway's conversation, which

the government presented as Government Exhibits 131 (the recording) and 132 (the transcript).

But the court denied the defendants' motions and admitted the government exhibits.

Importantly, though, Government Exhibits 131 and 132 did not contain the at-issue statement

("Adam didn't know any of this shit."), because the govermnent voluntarily redacted this

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sentence to avoid any potential Confrontation Clause problems under Bruton v. United States,

391 U.S. 123 (1968).

After the court admitted Government Exhibits 131 and 132, the defendants disagreed

over the redaction of "Adam didn't know any of this shit." Carey, apparently believing that this

redacted statement helped exculpate him, sought to introduce it at trial via Carey Exhibits 3 (a

USB-drive recording) and 4 (a one-page transcript). These two exhibits each contained a short

excerpt of Brockway' s conversation with the unredacted statement. 3

But Maund and Brockway argued that introducing Brockway's statement "opened the

door as to what Adam [Carey] did know" about the crimes. RE 461, Trial Tr., PageID 4109-14;

RE 458, Trial Tr., PageID 3264-72.

Maund and Brockway further argued that if Carey

introduced Carey Exhibits 3 and 4, thereby placing Carey's knowledge of the crimes at issue,

they should be allowed to introduce evidence rebutting Carey's lack of knowledge. Specifically,

Maund and Brockway wanted to introduce Peled's testimony that, in July 2020, when Peled

asked Carey whether Carey had heard any news about the murders, Carey responded: "Don't

worry about it. Nobody cares about them. They're low, common criminal. Nobody cares about

them." RE 458, Trial Tr., PageID 3531.

Carey objected to the admission of Peled's testimony relating to Carey's knowledge and

moved to exclude it. The government agreed not to introduce Peled's testimony about Carey's

July 2020 statement in its case-in-chief unless Carey opened the door to it by placing his

knowledge at issue, thus leaving the defendants to sort out the dispute over these statements.

To preserve the record amid this dispute, defendants presented both Brockway' s

statement of Carey's lack of knowledge and Peled's testimony of Carey's knowledge outside the

presence of the jury. Carey proffered Carey Exhibits 3 and 4, containing Brockway's statement,

and Maund and Brockway elicited Peled's testimony relating to Carey's knowledge.

The district court ruled that if Carey introduced Carey Exhibits 3 and 4, he would put his

knowledge at issue, and Maund and Brockway could then introduce Peled's testimony of Carey's

3In Carey Exhibit 4, Brockway's statement ("Adam didn't know any of this shit.") was underlined in blue

ink, but it is unclear whether this edit occurred before or after the jury received the transcript.

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knowledge. In other words, the court left it up to Carey: either the court would admit Carey

Exhibits 3 and 4 and Peled's testimony relating to Carey's knowledge, or the court would admit

none of the above. Carey chose not to introduce Carey Exhibits 3 and 4, so the court admitted

neither the Carey exhibits nor Peled's testimony about Carey's knowledge.

D.

But the district court failed to properly carry out its ruling on the Carey Exhibits. Despite

not admitting Carey Exhibits 3 and 4, the district court erroneously provided the jury with both

exhibits, along with other unadmitted exhibits, during deliberations. But Peled's testimony about

Carey's statement-which the court previously ruled to be conditionally admissible on the

admission of Carey Exhibits 3 and 4-was not delivered to the jury.

Over two months after the jury convicted all three defendants, the district court realized

its error. On January 29, 2024, the court held a hearing to notify the parties of the error. The

court allowed the parties to file motions regarding the error and requested that the parties refrain

from filing any other post-trial motions until the court resolved those motions.

Each defendant filed a motion for a new trial under Federal Rule of Criminal Procedure

33. The defendants argued that the error warranted a new trial for several reasons, including per

se prejudice, structural error, a due process violation, and actual prejudice. In response, the

government argued for a hearing under Remmer v. United States, 347 U.S. 227 (1954), to

determine the harmfulness of the error. Defendants replied, reiterating their various arguments

for a new trial and arguing against a Remmer hearing.

The district court held a Remmer hearing on May 15, 2024, to question the jurors

individually about their exposure to the error. Upon questioning, the jurors generally recalled

listening to a recording on USB, which may have been unadmitted Carey Exhibit 3 containing

Brockway's statement that "Adam didn't know any of this shit." At least two jurors also

testified they specifically recalled seeing the Carey Exhibit 3 USB drive. In contrast, most of the

jurors did not recall seeing any transcripts, such as Carey Exhibit 4, during deliberations.

Summarizing its factual findings after the hearing, the district comi stated:

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From the testimony at the hearing, the Court concludes that at least one of the

jurors reviewed the unredacted transcript of the excerpt of the recording of the

October 25, 2021 meeting between Brockway and Conaway, which was Carey

Exhibit 4. It is also likely that jurors listened to the unredacted recording. Two

jurors recognized the appearance of the USB drive that was Carey Exhibit 3 and

one juror said that it was used to play a recording. If that juror's recollection is

accurate, it would have exposed all of the jurors to the unredacted recording.

United States v. Maund, et al., No. 3:21-CR-00288, 2024 WL 4217518, at *12 (M.D. Tenn. Sept.

17, 2024). The government does not dispute these factual findings on appeal.

The district court also committed a second, separate error at the Remmer hearing. At

trial, each party presented its exhibits in different colored physical binders-red for Maund,

black for Carey, white with a blue slip for Brockway, and white with no blue slip for the

government-and the jury received the separate binders in deliberations. Post-verdict, the court

clerk consolidated all three defense binders into a single red binder. The court, however, did not

realize this consolidation occurred post-verdict; it erroneously led the parties to believe that the

jury had received a single red binder of defense exhibits-containing the unadmitted evidenceduring deliberations. As a result, at the Remmer hearing the defendants focused their juror

questioning on the single red binder. The district court, though, ruled that this error did not

materially affect the hearing.

Ultimately, the district court found that the primary trial error-the jury's exposure to

unadmitted exhibits with no curative instruction-was structural and granted defendants'

motions for a new trial. The district court reasoned that "the effects of the error are simply too

hard to measure" and did not offer any alternative harmless-error analysis. Maund, 2024 WL

4217518, at *15.

E.

f

j

On appeal, the government alleges that the trial error was not structural and that the

district court abused its discretion in granting a new trial without conducting a harmless-error

analysis. Further, the government urges us to find the error harmless beyond a reasonable doubt

as to each defendant, because of the overwhelming evidence of guilt and because Carey Exhibits

3 and 4 were unlikely to have affected the jury's decision.

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The defendants urge us to affirm the district court's structural error ruling.

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In the

alternative, defendants argue that the error, even if not structural, was harmful, so a new trial is

appropriate.

II.

Everyone agrees this case suffered serious error. The main question is what to do about

it. Although we generally review a district court's grant of a new trial in a criminal case for

abuse of discretion, we review de novo the district court's application of the proper legal

standard, including the determination whether harmless-error review applies. United States v.

Willis, 257 F.3d 636, 642 (6th Cir. 2001); see also United States v. Munoz, 605 F.3d 359, 366

(6th Cir. 2010). Accordingly, we review the district court's structural error determination de

novo, and the ultimate grant of a new trial for abuse of discretion. See Washington v. Recuenco,

548 U.S. 212, 218-19 (2006) (treating structural error as a legal question).

A.

Under Federal Rule of Criminal Procedure 33, a district court may "grant [] a new trial

where substantial legal error has occurred" if the "interest of justice [so requires]." United States

v. Robinson, 99 F.4th 344,367 (6th Cir. 2024) (citation modified); Fed. R. Crim. P. 33. But not

all trial errors, not even all "constitutional errors[,] ... require reversal of the conviction."

Sullivan v. Louisiana, 508 U.S. 275, 278-79 (1993) (citing Chapman v. California, 386 U.S. 18,

22-24 (1967)). Indeed, most "trial errors-even non-structural constitutional errors-are subject

to harmless error analysis." United States v. Miller, 531 F.3d 340, 346 (6th Cir. 2008) (citation

modified). A structural error, though, will automatically warrant a new trial, "despite the effect

of the error on the trial's outcome." See United States v. Simmons, 797 F.3d 409, 413 (6th Cir.

2015) (citation modified). Here, no structural error occurred, so harmless-error review applies.

1.

Only a narrow set of trial errors "defy analysis by harmless-error standards." Arizona v.

Fulminante, 499 U.S. 279,309 (1991); see also United States v. Kimbrel, 532 F.3d 461,469 (6th

Cir. 2008). These so-called "structural errors" require "automatic reversal," O'Neal v. Balcarcel,

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933 F.3d 618, 628 (6th Cir. 2019), because they "affect[] the framework within which the trial

proceeds," Fulminante, 499 U.S. at 310, and "render[] a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence," Recuenco, 548 U.S. at 219 (quoting

Neder v. United States, 527 U.S. 1, 9 (1999)). Put another way, structural errors undermine

"certain basic, constitutional guarantees" such that they should never "be deemed harmless

beyond a reasonable doubt." Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017); see also

Neder, 527 U.S. at 7. In this way, structural errors are "exceptions to th[e] general rule" of

harmless-error review. United States v. Campbell, 122 F.4th 624, 630 (6th Cir. 2024), cert.

denied, No. 25-5179, 2025 WL 2824393 (U.S. Oct. 6, 2025). If an error is found to be structural,

be it a Remmer error, Bruton error, or other error, harmless-error analysis does not apply. See

Weaver, 582 U.S. at 299.

There are three independent reasons an error may be structural. Id. at 295. First, an error

may be structural where "the right at issue is not designed to protect the defendant from

erroneous conviction but instead protects some other interest," for example "the defendant's

right to conduct his own defense." Id. Second, an error may be "structural if the effects of the

error are simply too hard to measure," for example where "a defendant is denied the right to

select his or her own attorney." Id. Third, an error may be "structural if the error always results

in fundamental unfairness," for example where "an indigent defendant is denied an attorney."

Id. at 296.

However, "an error can count as structural even if the error does not lead to

fundamental unfairness in every case." Id. (citation modified).

Remmer errors are not structural. See Doan v. Brigano, 237 F.3d 722, 736 (6th Cir.

2001), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003). Under Remmer, a

trial error occurs when an "unauthorized invasion[] on the jury proceedings," like an extraneous

influence, affects "a defendant's Sixth Amendment right to a fair trial by a panel of impartial,

indifferent jurors." In re Sitterifeld, 49 F.4th 1061, 1066 (6th Cir. 2022) (citation modified). "In

this circuit, a Remmer hearing is required when a defendant presents a colorable claim that

extraneous information or contact had an obvious or likely adverse effect on the jury." Id.

(citation modified).

A Remmer hearing requires the court to determine whether "improper

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contact caused actual prejudice to the verdict," thereby "warrant[ing] a new trial." Id. at 1066-67

(citation modified).

Similarly, Bruton errors are not structural. See Brown v. United States, 411 U.S. 223,231

(1973); Harrington v. California, 395 U.S. 250, 253-54 (1969). Under Bruton, a trial error

occurs when "a defendant is deprived of his Sixth Amendment right of confrontation" because

"the facially incriminating confession of a nontestifying codefendant is introduced at their joint

trial." Samia v. United States, 599 U.S. 635, 647 (2023) (quoting Richardson v. Marsh, 481 U.S.

200, 207 (1987)).

But "a nontestifying codefendant's statement does not violate the

Confrontation Clause where it does not name the defendant, and implicates him only in light of

other evidence presented at trial." United States v. Alkufi, 636 F. App'x 323, 335 (6th Cir. 2016).

In any event, where a Bruton error occurs, a new trial is not automatic. Rather, courts examine

the circumstances of the case to determine whether the error was harmless. See Harrington, 395

U.S. at 253-54.

Here, the jury inappropriately received unadmitted evidence containing a nontestifying

codefendant' s statement identifying another co defendant by name. This implicates both Remmer

and Bruton. But we need not specifically decide which type of error occurred, because both

Remmer and Bruton errors require harmless-error analysis. Cf United States v. Hendrickson,

822 F.3d 812, 824 & n.5 (6th Cir. 2016) (applying the most stringent harmless-error standard

without deciding whether a constitutional error occurred).

The defendants may be correct that the error here is distinct from the typical Remmer

error in at least two ways: (1) the influence on the jury occurred with "the imprimatur of the

Court," CA6 R. 40, Brockway Br., at 21-22, and (2) the error was discovered post-verdict,

leaving no opportunity for a curative instruction. But the unique features of this case do not

preclude us from analyzing the district court's error as a Remmer error. In fact, we have held

that "it is the communication's potential to impact upon a juror's ability to perform his or her

duties impartially, rather than the form or source of the communication, that dictates the

necessity for conducting a Remmer hearing." United States v. Walker, l F.3d 423, 429 (6th Cir.

1993) (citation modified).

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Moreover, the defendants' alternative suggestion that the error here was not a Remmer

error because it was not extraneous to the court misunderstands Remmer jurisprudence.

Although "the distinction between external and internal influences [can be] elusive,"

Cunningham v. Shoop, 23 F.4th 636, 684 (6th Cir. 2022) (Kethledge, J., concurring) (citation

modified), "generally speaking, information is deemed extraneous if it derives from a source

external to the jury," even if not external to the court, see Warger v. Shauers, 574 U.S. 40, 51

(2014) (citation modified). So, under Federal Rule of Evidence 606(b)(l), a juror may not

disclose any jury-internal influences that "come[] from the jurors themselves," such as one juror

"pressur[ing]" other jurors into a guilty verdict. United States v. Bailey, No. 19-2280, 2022 WL

2444930, at *9 (6th Cir. July 5, 2022) (quoting United States v. Brooks, 987 F.3d 593, 604 (6th

Cir. 2021)). But a juror may disclose any jury-external influences, such as "when a juror's

family member is threatened" or when "a bailiff tells the jurors that the defendant is wicked."

Bailey, 2022 WL 2444930, at *9 (citation modified) (first citing Tanner v. United States, 483

U.S. 107, 123 (1987); then quoting Parker v. Gladden, 385 U.S. 363,363 (1966)).

As the defendants here point out, Remmer errors often arise from court-external

influences. See, e.g., Sitterifeld, 49 F .4th at 1067 Guror posted and received comments on

Facebook during deliberations); Ewing v. Horton, 914 F.3d 1027, 1029 (6th Cir. 2019) Gurors

conducted internet research on the case); United States v. Kechego, 91 F.4th 845, 851 (6th Cir.

2024) Gurors used phones during deliberations). But the touchstone of a Remmer error is when

jurors are exposed to an influence external to the jury, even if it is internal to the court.

2.

Here, the district court held, and defendants contend, that the court's error was structural

because, under Weaver, the effects were too hard to measure. See Weaver, 582 U.S. at 295.

Although we have not previously considered whether an error like this-jury exposure to

unadmitted exhibits with no curative instruction-is structural, we find that it is not.

Again, very few errors meet Weaver's too-hard-to-measure threshold for structural error.

See id at 299. The two primary examples of too-hard-to-measure structural errors are denial of

choice of counsel and denial of a proper jury verdict. See, e.g., McCoy v. Louisiana, 584 U.S.

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The error here-erroneous jury exposure to

unadmitted exhibits-fits neither of these too-hard-to-measure categories, and defendants cite no

binding precedent holding otherwise. Instead, defendants propose that we should recognize a

new type of too-hard-to-measure structural error.

But the error here is not too hard to measure. In fact, we frequently expect lower courts

to measure the effects of Bruton and Remmer errors via harmless-error analysis. See, e.g.,

United States v. Lanier, 870 F.3d 546, 551 (6th Cir. 2017) (ordering the district court to measure

,the prejudice of a juror's communication with an outside attorney via a Remmer hearing);

Cunningham, 23 F .4th at 662 (ordering a district court to conduct a Remmer hearing to determine

the effect of juror bias); United States v. Olano, 507 U.S. 725, 738 (1993) ("We generally have

analyzed outside intrusions upon the jury for prejudicial impact."); Harrington, 395 U.S. at 254

("[W]e conclude that this violation of Bruton was harmless beyond a reasonable doubt.").

For example, in Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999), abrogated on other

grounds by Harris v. Stovall, 212 F.3d 940, 942-43 (6th Cir. 2000), we affirmed the district

court's post-verdict harmless-error analysis where the jury received unadmitted negative news

reports and rumors of the defendants' racial bias, with no curative instruction. Id. at 369-70. We

held that these extraneous influences did not amount to structural error because the error did not

"permeat[e] the entire process and thus was more closely akin to errors which occurred during

the presentation of the case to the jury," which are typically "subject to harmless error review."

Id. at 369. The same is true here. If a court can determine the harmfulness of unadmitted news

reports and racial bias rumors, a court can determine the harmfulness of a few unredacted

sentences, 4 even if those sentences were contained in what appeared to be legitimate exhibits.

Although the specific error in this case is unique among our cases, that alone is not

sufficient to find structural error. Indeed, finding structural error each time we encountered a

factually-unique trial error "would be inconsistent with our traditional categorical approach to

4 We do not address the entirety of the district court's trial error (all ten unadmitted exhibits erroneously

delivered to the jury and three admitted exhibits not delivered to the jury) because defendants only meaningfully

argue that a pmiion of the error (exposure to Carey Exhibits 3 and 4) was structural or harmful.

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structural errors." Neder, 527 U.S. at 14; see also United States v. Blanton, 719 F.2d 815, 822

(6th Cir. 1983) ("Every criminal trial is, of course, at least to some degree unique.").

The Ninth Circuit's decision in United States v. Nouslifar, 78 F.3d 1442 (9th Cir. 1996),

amended, 140 F.3d 1244 (9th Cir. 1998), cited by the defendants, does not alter this conclusion,

because Noushfar is both nonbinding and distinguishable. The panel in Nouslifar held that

"[s]ending [fourteen] unplayed tapes to the jury room" over "vigorous objections" and with "no

instructions" was structural error, because it represented a "complete abdication of judicial

control over the process" that had immeasurable effect.

Id. at 1445-46.

Here, the court

inadvertently presented the jury with unadmitted exhibits; this did not amount to judicial

abdication of control.

And the Ninth Circuit itself has cabined Noushfar to its facts.

See

Eslaminia v. White, 136 F.3d 1234, 1237 & n.1 (9th Cir. 1998) (declining to find structural error

where the jury considered unadmitted taped comments and limiting Noushfar to its specific facts,

including the large quantity and incriminating character of the extrinsic evidence in Noushfar).

Furthermore, the error in this case had a less pervasive effect than other structural errors.

Again, only "a limited class of fundamental constitutional errors" that "infect the entire trial

process and necessarily render a trial fundamentally unfair" rise to the threshold of structural

error. Neder, 527 U.S. at 7-9 (citation modified). To illustrate, structural errors include: a

judge's "unconstitutional failure to recuse," United States v. Liggins, 76 F.4th 500, 505 (6th Cir.

2023) (citation modified); "the presence of a biased juror," Cunningham, 23 F.4th at 660 n.9;

denial of "the right to represent oneself," Hendrickson, 822 F.3d at 825; jury instructions which

alter the government's burden of proof, Doan v. Carter, 548 F.3d 449, 455 (6th Cir. 2008);

discriminatory jury selection practices under Batson v. Kentucky, 476 U.S. 79 (1986), see

Kimbrel, 532 F.3d at 469; and "denial of a public trial," Greer v. United States, 593 U.S. 503,

513 (2021) (quoting United States v. Davila, 569 U.S. 597, 611 (2013)). Each of these errors

"affect[s] the framework within which the trial proceeds," while the error here is "simply an

error in the trial process itself." Fulminante, 499 U.S. at 310.

Lastly, we have declined to find structural error in similar cases of discrete trial error.

For example, we have held that the physical absence of a defendant's attorney at a hearing is not

"structural error unless the State was responsible for counsel's absence." Clark v. Lindsey, 936

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F.3d 467, 470 (6th Cir. 2019). Similarly, we found no structural error where a district court

"fail[ed] to submit a sentencing factor to the jury," Campbell, 122 F.4th at 630 (citation

modified), nor did we find structural error where the district court omitted an element of the

charge, United States v. Kuehne, 547 F.3d 667, 681 (6th Cir. 2008).

In sum, the error in this case was not so unquantifiable as to be structural. We therefore

ask whether the error was harmless.

B.

Because the district court erroneously found structural error and offered no harmlessness

determination, we perform a first-principles harmless-error analysis. See, e.g., Hendrickson, 822

F.3d at 824 (deciding harmlessness in the first instance); United States v. Taylor, 127 F.4th 1008,

1018 (6th Cir. 2025) (same).

I.

We first address the conflicting burden-of-proof standards for Remmer and Bruton errors

in this circuit.

The "general rule" is that the government bears the burden to prove a

constitutional error harmless "beyond a reasonable doubt." Campbell, 122 F.4th at 630 (citation

modified); Chapman, 386 U.S. at 24 ("[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."). We follow that general burden-of-proof standard for Bruton errors, United States v.

Henderson, 626 F.3d 326, 333 (6th Cir. 2010), but for Remmer en-ors we have held that the

"defendant ... carrie[s] the burden of proving actual prejudice," even though such errors are

constitutional en-ors. Sittenfeld, 49 F.4th at 1066-67; see also United States v. Corrado, 227 F.3d

528, 536 (6th Cir. 2000). Ours is the "only circuit that places on the defendant the burden of

proving

bias

at the

Remmer

hearing

rather

than

requiring

the

Government to

show ... harmless[ness]." United States v. Lanier, 988 F.3d 284, 295 (6th Cir. 2021) (citation

modified).

But we need not decide definitively which standard should apply here, because we can

"[a]ssum[e] without deciding that the most stringent standard for harmless-error review applies."

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Hendrickson, 822 F.3d at 824 & n.5 (declining to decide which burden of proof applied "because

any error was harmless even under the more demanding standar.d"). The error here was harmless

under either standard.

2.

An error is harmless beyond a reasonable doubt where "the properly admitted evidence of

guilt is so overwhelming" that "the prejudicial effect of the [error] is ... insignificant by

comparison." United States v. Macias, 387 F.3d 509, 520 (6th Cir. 2004) (citation modified). If

"there is a reasonable possibility that the improperly admitted evidence contributed to the

conviction," then the error is not harmless. Id. (citation modified). But if "the outcome would

not have been different without the [error]," then the error is harmless. Campbell, 122 F.4th at

630 (citation modified); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Here,

although the trial error is procedurally worrisome, the mild nature of the prejudice and the

significance of the government's other evidence make this error harmless to each defendant.

a.

Of the three defendants, the error is most clearly harmless to Carey because the

government presented significant other evidence of guilt and the error arguably helped, rather

than prejudiced, him.

Evidence of guilt. At trial, the government played a recording of Carey discussing his

own involvement in the crimes.

In the recording, Carey also agreed to a second, fictional

murder-for-hire. Additionally, several witnesses gave testimony directly implicating Carey in

the murder-for-hire scheme. Finally, the government produced surveillance footage placing

Carey at a victim's apartment prior to the murders.

Prejudice of the error. The jury's erroneous receipt of Carey Exhibits 3 and 4 directly

supported Carey's defense theory that he lacked knowledge of the crimes. And, because the jury

did not receive Peled's testimony regarding Carey's knowledge, this evidence supporting

Carey's lack of knowledge went largely umebutted. The comi's error thus created the exact

situation that Carey advocated for at trial: introduction of Carey Exhibits 3 and 4 without Peled's

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testimony of Carey's knowledge. Moreover, Carey may have even waived his objection to any

Bruton error by voluntarily arguing for the admission of Brockway's facially identifying

statement in Carey Exhibits 3 and 4. See Bailey v. Mitchell, 271 F.3d 652, 657-58 (6th Cir.

2001) (noting that defendants may waive objections to Confrontation Clause violations).

Thus, the error was harmless to Carey.

b.

Because Carey Exhibits 3 and 4 do not directly inculpate Maund, and because the

government presented significant other evidence of guilt, we find the error is also harmless to

Maund. But unlike Carey and Brockway, the jury convicted Maund of only murder-for-hire

conspiracy, not kidnapping or kidnapping conspiracy, so we consider the impact of the error only

on the single conviction.

Evidence of guilt. At trial, the government played a recorded call between Maund and

Peled in which Maund incriminated himself. Peled also gave testimony, separate from his

unadmitted testimony regarding Carey's knowledge, directly implicating Maund in the

murder-for-hire scheme.

In addition, one of Maund's coworkers testified that, at Maund's

request, the coworker contacted Peled so that Peled could help Maund handle Lanway' s

extortion attempts. And the government introduced evidence, including bank records, showing

that Maund transferred $150,000 to Peled on the afternoon of the murders.

Prejudice of the error. The primaiy error here was the jury's improper receipt of a single

Carey-exculpato1y statement without receiving Peled's Carey-inculpating testimony. This error

relates to Maund's murder-for-hire conviction only tangentially, because Carey Exhibits 3 and 4

do not directly inculpate or exculpate Maund. It is plausible that Carey Exhibits 3 and 4 mildly

undermine one of Maund's affirmative theories of defense: that Carey committed the murders on

his own, without Maund' s input. But the link between this theory of defense and Carey Exhibits

3 and 4 is tenuous at best. And, because the error consisted of only one or two sentences, it is

doubtful these sentences significantly diminished this theory of Maund's defense.

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Maund also argues that he was further prejudiced because the Remmer hearing was

constitutionally deficient under United States v. Lanier, 988 F.3d 284 (6th Cir. 2021), but we

disagree. The mix-up regarding binder colors at the Remmer hearing did not deprive defendants

of a constitutionally meaningful Remmer hearing. Because many of the jurors did not even

remember the color of the binders, that the defendants questioned jurors specifically about a red

binder does not rise to the Lanier level of "shackl[ing]" defendants' investigation into the

external influence. Id.

Because the evidence against Maund was considerable, we conclude that the jury's

verdict against Maund "would not have been different" absent the error, making it harmless.

Campbell, 122 F.4th at 630 (citation modified).

C.

For Brockway, the significance of the government's evidence also overwhelms any

possible prejudice from the error, making it harmless.

Evidence ofguilt. At trial, the government introduced Government Exhibits 131 and 132,

which captured Brockway discussing his involvement in the crimes and agreeing to another

murder-for-hire scheme.

Peled gave testimony directly implicating Brockway in the

murder-for-hire scheme.

The government also introduced evidence that Brockway was in

Nashville during the murders, and left Nashville after the murders. And the government's

evidence showed that, while in Nashville, Brockway rented a car that matched the vehicle

captured on surveillance footage driving near where the victims' bodies were found.

Prejudice of the error. Of the three defendants, Brockway has the strongest claim of

potential prejudice, because he was accused of physically kidnapping and murdering the victims

in tandem with Carey.

One of Brockway's primary theories of defense was that Carey

committed the murders alone, without Brockway. And because the jury received Carey Exhibits

3 and 4, in which Brockway himself stated that Carey lacked certain knowledge of the crimes,

these exhibits prejudiced Brockway by directly contradicting this pillar of his defense. But,

considering the other overwhelming evidence of guilt, we find that this single statement, that

"Adam [Carey] didn't know any of this shit" during a murder-for-hire scheme, RE 496-3, Carey

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Ex. 4, PageID 5721, was "insignificant by comparison," Macias, 387 F.3d at 520 (citation

modified).

Accordingly, we find the error harmless as to Brockway too.

III.

The error here was neither structural nor harmful to any defendant.

For the above

reasons, we reverse the district court's grant of a new trial and remand for further proceedings.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 24-5932

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

ERIK CHARLES MAUND; BRYON BROCKWAY; ADAM

CAREY,

Defendants - Appellees.

Before: MOORE, THAPAR, and RITZ, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED that the district court's grant of the motion

for a new trial is REVERSED, and the case is REMANDED for further proceedings consistent with the

opinion of this comt.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

A000022

APPENDIXB

United States v. Erik Maund et al., Case No. 3:21-CR-00288, 2024 WL 4217518

(M.D. Tenn. Sept. 17, 2024) (Memorandum Opinion)

IN THE UNITED STATES DISTRICT COURT FOR

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

UNITED STATES OF AMERICA

)

)

v.

)

)

NO. 3:21-cr-00288

ERIKMAUND

BRYON BROCKWAY

ADAMCAREY

)

)

JUDGE CAMPBELL

)

MEMORANDUM AND ORDER

I.

INTRODUCTION

The Sixth Amendment to the U.S. Constitution expressly guarantees "the accused"

fundamental protections that courts throughout our history have acknowledged protect each

citizen's right to a "fair trial." UnitedStatesv. Gonzalez-Lopez, 548 U.S. 140,145 (2006). Modern

criminal trials, including the one in this case, are often complex affairs with testimony from

numerous witnesses, multiple defendants, hundreds of exhibits (physical and electronic),

numerous evidentiary issues and strong advocacy from excellent attorneys. Given that complexity,

mistakes can happen, which results in the oft repeated truism: "A defendant is entitled to a fair

trial but not a pe1fect one." Lutwak v United States, 344 U.S. 604, 619 (1953). But the right to a

fair trial does not - and cannot -yield to the complex nature of a modern criminal trial. Nor can

that complexity compromise the bedrock principle that a "fair trial" involves a jury considering

only "the 'evidence developed' against a defendant ... from the witness stand in a public comiroom

where there is full judicial protection of the defendant's right of confrontation, of cross~

examination, and of counsel."' Parker v. Gladden, 385 U.S. 363,364 (1966) (citation omitted).

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The Bill of Rights to the U.S. Constitution places a high premium on individual rights and

the protection of liberty. At its core, a criminal charge seeks to deprive a citizen of liberty. While

the government indicted these defendants for crimes that could result in lengthy jail sentences upon

conviction, constitutional protections do not concern themselves with whether a criminal

defendant is charged with these types of crimes or charges that may result in a lesser sentence. A

fair trial protects principles of liberty in every criminal case.

The fairness of a trial is not solely for the protection of individual liberty of a defendant,

as important as that is. Ensuring a fair trial bolsters the confidence of our citizens in our judicial

system and assures them that our system of self-government provides a common place where

differences-be they criminal or civil-can be adjudicated peacefully and publicly under rules

designed to be fair to all parties. In many cases, like this one, the rights and concerns of victims

also demand a fair trial. Put simply, citizens, the parties, and victims must have confidence that

the result of a criminal trial-be it a conviction or an acquittal-resulted from a trial that respected

everyone's rights and comported with foundational constitutional protections.

In this case, an administrative mistake caused certain exhibits not admitted into evidence

to be given to the jury as it began deliberations. The Court understands the gravity and impact of

that mistake, as well as its impact on the parties, the victims, and potentially the public's view of

the trial. Our criminal justice system demands that comts aclmowledge when they fail to provide

a fair trial and take appropriate action to remedy_ that failure. The rights of all involved demand no

less.

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II.

PROCEDURAL HISTORY

A. The Charges and Trial

On November 29, 2021, Erik Maund, Gilad Pe led, Bryon Brockway, and Adam Carey were

indicted on charges arising out of the alleged March 2020 kidnapping and murder of two victims

in Nashville, Tennessee. (Doc. No. 3). The Government filed a Superseding Indictment on July

25, 2022. (Doc. No. 127). The Superseding Indictment charged the Defendants with three counts:

(1) conspiracy to commit murder-for-hire in violation of 18 U.S.C. § 1958; (2) kidnapping

conspiracy in violation of 18 U.S.C. § 1201(a) and (c); and (3) kidnapping resulting in death in

violation of 18 U.S.C. § 1201(a)(l) and (2). (Id.).

The Government's theory was that in March 2020, Erik Maund, a married businessman,

received extortion demands from William Lanway, who had become aware of Maund's

involvement with Holly Williams in Nashville, Tennessee. At the recommendation of a friend,

Maund hired Gilad Peled, who owned a security company called Speartip Security, to help him

with the problem. Peled, in turn, enlisted the help of Bryon Brockway. After some initial

intelligence gathering by others, Brockway and Adam Carey traveled to Nashville, Tennessee. The

Government contends that ultimately Maund agreed to pay Peled $750,000 to have William

Lanway and Holly Williams murdered and that Peled communicated the order to Brockway and

Carey who then kidnapped and murdered Mr. Lanway and Ms. Williams.

In December 2022, Gilad Peled entered a plea of guilty pursuant to a plea agreement with

the Government. (Doc. No. 211). The remaining defendants-Erik Maund, Bryon Brockway, and

Adam Carey-proceeded to trial. At the close of the Govermnent' s proof, the Court granted

Maund's motion for judgment of acquittal under Fed. R. Crim. P. 29 as to the charge in Count 2

3

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for conspiracy to commit kidnapping. (Tr. Trans. Vol. 9 (Nov. 14, 2023), Doc. No. 463 atPageID#

4580-4638; Tr. Trans. Vol. 10 (Nov. 15, 2023), Doc. No. 464 atPagelD# 4658-63). On November

17, 2023, the jury returned verdicts on the remaining charges. (See Redacted Verdict Forms, Doc.

Nos. 437 (Maund), 439 (Brockway), 441 (Carey)). The jury found Maund not guilty of kidnapping

(Count 3); Brockway and Carey were found guilty of conspiracy to commit kidnapping (Count 2),

and kidnapping resulting in death (Count 3); and all three defendants were found guilty of

conspiracy to commit murder-for-hire (Count 1). (Id.).

B. Post-Trial Evidence Review

Following the conclusion of the trial, the Clerk of Court received a number ofrequests for

trial exhibits from the media. 1 While gathering the requested exhibits, the Chief Deputy Clerk

observed discrepancies between the exhibit list prepared during the trial and the exhibits provided

to the jury. Court staff undertook an extensive review to determine whether the discrepancy was

merely a problem with the exhibit list itself or whether there was a discrepancy between the

exhibits admitted at trial and those provided to the jury.

The Court set a hearing for January 29, 2024. 2 At the hearing, the Court informed the

parties that the Court had identified discrepancies in the exhibits provided to the jury. (Hearing

Trans. (Jan. 29, 2024), Doc. No. 487). Counsel for the parties discussed their recollection of

reviewing the exhibits before exhibits were provided to the jury. 3 (Id.). The attorneys confirmed

Over 260 exhibits were admitted at trial. (See Amended Exhibit and Witness List, Doc. No. 504).

2

The hearing was originally set for January 22, 2024, and was continued to January 24, 2024, and

then to January 29, 2024. (Doc. Nos. 456, 480, 482).

3

During the May 15, 2024 hearing, the attorneys again discussed their recollection of their review

of the exhibits. (Hearing Trans. (May 15, 2024), Doc. No. 542 at PageID# 6241-44).

4

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~

that they reviewed the exhibits either after closing arguments or after the close of proof. (Id.). The

Court then provided the parties with a Notice Regarding Trial Exhibits which stated:

The patiies are advised of the following discrepancies in exhibits provided to the jury.

1. The following exhibits were admitted into evidence and not provided to the jury:

a)

b)

c)

Government Exhibit 103 - CD with pinger messages

Government Exhibit 112 - CD with phone records (CD provided to jury

was blank)

Maund Exhibit 81 -Aerial surveillance footage of Maund's residence

2. The following exhibits were not admitted into evidence and were provided to the jury:

a)

b)

c)

d)

e)

f)

g)

h)

i)

Govermnent Exhibit 254 - photo from execution of search warrant at

Carey property

Government Exhibit 25 7 - photo from execution of search warrant at

Carey property

Carey Exhibit 3 - Unredacted recording of Brockway / Conaway

conversation

Carey Exhibit 4 -Partial transcript of unredacted recording of Brockway/

Conaway conversation

Maund Exhibit 8-JP Morgan Chase Bank records for Speatiip (from

USB drive)

Maund Exhibit 9 -JP Morgan Chase Bank records for Speartip (from

USB drive)

Maund Exhibit 51 - Excel spreadsheet of text messages to and from Holly

Williams from June 6, 2018, through March 11, 2020 (from USB drive)

Maund Exhibit 59- Video surveillance footage from Holly Williams'

apartment (from USB drive)

Maund Exhibit 78 - Video surveillance footage from Holly Williams'

apartment (from USB drive)

•

(Doc. No. 502). The Court later became aware that Govermnent Exhibit 359, from which a

reference to the date the murders occurred was to have been redacted, was included with the

5

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government exhibits in its unredacted form. This exhibit was inadvertently not included in the

Notice, but was identified by defendants before a subsequent hearing. 4

The Court allowed the parties until February 19, 2024 (three weeks from the date of the

hearing), to file motions concerning the information provided in the Notice, and ordered that the

motions should be limited only to the exhibit discrepancies. (See Doc. No. 485). The deadline to

file other post-trial motions was continued until after the resolution of the issues raised during the

January 29, 2024 hearing. (Id.).

Each of the defendants filed a motion for new trial based on the exhibit discrepancies. (Doc.

Nos. 491 (Brockway), 493 (Maund), 496 (Carey)). The Government filed a consolidated response.

(Doc. No. 500). And each of the defendants filed a reply. (Doc. Nos. 506 (Carey), 511 (Brockway),

513 (Maund)). Briefing was complete on March 18, 2024.

The defendants universally argued that the Court should grant a new trial without a further

hearing because the discrepancies in the exhibits submitted to the jury constituted structural error.

Defendants further argued that a subsequent hearing would be constitutionally inadequate given

the circumstances surrounding the evidence at issue, the time that had passed since the trial, posttrial publicity, and the restrictions on inquiry into jury deliberations imposed by Fed. R. Evid. 606.

The government disagreed, pointing to Sixth Circuit authority stating that if there is prima facie

evidence that an unauthorized communication may have affected the verdict, the court must hold

4

On May 15, 2024, the morning of the Remmer hearing, counsel for Maund notified the Court of an

irregularity with the exhibits provided to the jury that had not been included in the Notice provided to the

parties in January. Government Exhibit 359, which was a CD containing a list of dates of wire transfers

from Maund to Peled's company, Speartip, and the statement "homicides occur" on the date of the murders,

should have had the extraneous statement redacted. A note on the CD indicated that it was "not redacted,

should be redacted per transcript." (Hearing Trans. (May 15, 2024), Doc. No. 542 at PageID# 6080-86).

6

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a hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954). (Gov't Response, Doc. No.

500 (citing Ewing v. Horton, 914 F.3d 1027, 1031 (6th Cir. 2019)).

C. Duty to Investigate Extrinsic Influence on Jury

The Sixth Circuit has made clear that "[w]hen a trial court is presented with evidence that

an extrinsic influence has reached the jury which has a reasonable potential for tainting that jury,

due process requires that the trial court take steps to determine what the effect of such extraneous

information was on that jury." Ewing, 914 F.3d at 1030 (quoting Nevers v. Killinger, 169 F.3d 352,

373 (6th Cir. 1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000)).

"In other words, [w]here a colorable claim of extraneous influence has been raised, [an evidentiary

hearing] must be held to afford the defendant an opportunity to establish actual bias." Id. (quoting

United States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999)); see also United States v. Walker, 1 F.3d

423, 430 (6th Cir. 1993) (finding the trial court had a duty to conduct a hearing when the jury was

inadvertently provided evidence that had not been admitted at trial). The hearing is often referred

to as a Remmer hearing. Ewing, 914 F.3d at 1030.

The Court concluded that a Remmer hearing was a necessary first step and scheduled that

hearing for May 15, 2024. (See Doc. Nos. 518,523,526).

D. The Exhibits at Issue

As previously indicated, three exhibits were admitted into evidence, but not provided to

the jury, nine exhibits were provided to the jury that had not been admitted into evidence, and one

exhibit did not include redactions that had been ordered by the Court. The parties focus on the

7

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alleged prejudice arising from Carey Exhibits 3 and 4. s, 6 To understand why, some background is

necessary.

1. Pretrial Evidentiary Rulings

Gilad Peled pied guilty to the charges in the superseding indictment. (Doc. No. 211). The

remaining defendants-Erik Maund, Bryon Brockway, and Adam Carey-requested separate

trials based on concerns of antagonistic defenses, spillover evidence, and constitutional concerns

from statements of non-testifying codefendants implicating another defendant as identified in

Bruton v. United States, 391 U.S. 123, 137 (1968). (See Doc. No. 137 (Carey); Doc. No. 139

(Maund); Doc. No. 251 (Brockway); Doc. No. 334 (Carey motion to reconsider)). The Court found

severance was not warranted and denied the motions. (Orders, Doc. Nos. 176, 279, 383). In

denying the motions for severance, the Court found that the Bruton issues raised by the parties

could be addressed with appropriate redactions. (Id.).

Before the trial began, the defendants collectively filed over one dozen motions in limine

seeking to exclude evidence. (Doc. Nos. 283, 284, 285, 286, 287, 288, 292, 297, 298, 299, 300,

5

Carey also argues prejudice from the jury being inadvertently provided Government Exhibits 254

and 257, which were photographs of boxes of ammunition taken at Carey's residence pursuant to a search

warrant the day of his arrest on December 10, 2021. The Court denied Carey's motion to exclude these

photographs (Doc. No. 384), but the Government voluntarily opted not to seek to admit them. It did,

however, admit four substantially similar photographs into evidence. (Gov't Exs. 250, 255, 256, 258). Even

if the jury did specifically consider the unadmitted photos, the Court finds these two exhibits did not result

in structural error, nor was there a potential for such consideration to affect the verdict.

6

Maund also argues that he was prejudiced by the submission of an unredacted version of

Govermnent Exhibit 359, which was a CD containing a summary of electronic funds transfers and the dates

of those transfers from Maund to Peled's Speartip bank account. The words "Homicides occur," which

indicate the date of the homicides relative to the financial transactions, were redacted during presentation

of the exhibit during trial. (See Tr.Trans. Vol. 9 (Nov. 14, 2023), Doc. No. 463 at PageID# 4538). Given

that there was no dispute about the date of the homicides, the Court finds no structural error or prejudice

from the jury's potential consideration of the unredacted document.

8

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351, 352, 360, 387, 407). Among the evidence defendants sought to exclude were recordings of

conversations in which the Government contends Bryon Brockway and Adam Carey agreed to

participate in an additional murder-for-hire scheme similar to the one charged in this case. (Doc.

Nos. 292, 297, 299). There is no dispute that the new murder-for-hire scheme was entirely fictional,

but the Government asserted that, in agreeing to the fictional murder-for-hire scheme, Brockway

and Carey made statements about the murders at issue here. (See Notice by the United States of

Intent to Offer Evidence Pursuant to Rule 404(8), Doc. No. 204).

The Government filed transcripts that corresponded to the five recorded statements it

intended to play at trial. 7 The recordings were redacted to address constitutional concerns that arise

when statements of a non-testifying codefendant directly implicate another defendant. See Bruton,

391 U.S. at 137. The Court ruled that these recorded conversations would be admitted. (See Pretrial

Conf. Trans. (Oct. 23, 2023), Doc. No. 486 at PageID# 5580; Order, Doc. No. 385 (denying

7

The Government filed transcripts that corresponded to the five recorded statements it intended to

play at trial:

Recorded phone call between David Conaway and Adam Carey on Sept. 21, 2021 (Doc. No. 3631 (Trial Exhibit 126 (for identification only));

(1)

(2)

Recorded phone call between David Conaway and Bryon Brockway on Sept. 22, 2021 (Doc. No.

363-2 (Trial Exhibit 128 (identification only);

(3)

Recorded meeting between David Conaway and Adam Carey on Sept. 29, 2021 (Doc. No. 363-3

(Trial Exhibit 130 (identification only));

(4)

Recorded meeting between David Conaway and Bryon Brockway on Oct. 25, 2021 (Doc. No. 3634 (Trial Exhibit 132 (identification only));

(5)

Recorded call between David Conaway and Bryon Brockway on Nov. 20, 2021 (Doc. No. 363-5

(Trial Exhibit 134 (identification only)).

9

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motions to exclude and ordering additional redactions of irrelevant portions of those

conversations)).

One of these recordings was of a meeting between Bryon Brockway and David Conaway,

a cooperating govermnent witness, on October 25, 2021. (Gov't Exs. 131 (recording), 132

(transcript)). Among the redactions from this recording was a statement by Bryon Brockway in

which he referred to "Adam" by name. (Id.). The context of the reference to "Adam" is as follows.

After seemingly detailing the execution of the murders that are the subject of the charges in this

case, Brockway told Conaway that the value of using a vehicle-being "mobile" as opposed to

"static"-was that "they're never going to figure out where the original X was." (Gov't Exs. 131,

132). Brockway then stated, "Uh, Adam didn't know any of this shit." (Carey Exs. 3 (recording),

4 (transcript)). The statement, "Adam didn't know any of this shit," was redacted from the

recording and the transcript offered by the Government.

2. Newly Disclosed Evidence

Days before the trial was set to begin, the Govermnent informed the defendants that on

October 23, 2023, Gilad Peled recalled "an additional fact that [the government] had not learned

from any session prior to the session on 10/23." (Sealed Doc. No. 387-1). Specifically, Peled told

the govermnent that Peled recalled:

[H]e saw Bryon Brockway and Adam Carey together again a few months

after the murders. He described it as being in the summer time (but did not

know the specific date) and that they ate at a waterfront restaurant in the Lake

Travis area of Austin, Texas. He generally described the restaurant and its

location, but, at the time, could not recall the name of the restaurant. He stated

that on that occasion, Peled, Brockway, and Carey had lunch together and

during this lunch Mr. Peled asked Brockway and Carey if they had heard

anything about the murder investigation. Mr. Peled said he remembered Mr.

Carey saying words to the effect (paraphrased): 'No and we never will. No

one cares about those two people.'"

10

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(Id.). Subsequent investigation disclosed that on July 9, 2020, Brockway and Carey made

purchases at a restaurant matching the description given by Peled. (Id.). The Government initially

told the defendants that it intended to ask Peled about this conversation. But following Adam

Carey's motion to exclude the statement or, alternatively, to continue the trial (Sealed Doc. No.

387), the Government stated that it would not elicit testimony about Carey's alleged statement in

its case-in-chief and suggested the motion be denied as moot. (Sealed Doc. No. 390). The

Government also submitted that no other party should be able to use the statement for any purpose

"given Defendant Carey's motion and the United States position in this filing." (Id.). However, the

Government held open the possibility that its position concerning the statement might change if,

for example, "any defendant opens the door for it to be needed." (Id.).

Based on the Government's representation that it would not seek to introduce Carey's

statement from the July 2020 meeting in its case-in-chief, the Court denied Carey's motion without

prejudice to raising contemporaneous objections at trial should any party seek to admit evidence

of the alleged statement. (Doc. No. 392).

3. Evidentiary Rulings and Evidence at Trial

Jury selection for the joint trial began on November I, 2023. 8 (See Doc. No. 393). The

parties presented opening arguments on Friday, November 3, 2023. (Tr. Trans. Vol. 3 (Nov. 3,

2023), Doc. No. 457). Before opening arguments, counsel for Defendant Maund informed the

Court that Maund wanted to present evidence of the July 2020 meeting between Peled, Brockway,

and Carey. (Id. at PageID# 2969, 3244-48). Maund argued that the fact of the meeting, which

8

The trial was originally scheduled to being on October 31, 2023, but was continued to November

1, 2023, without objection by the parties. (See Doc. No. 340).

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excluded Maund, together with Carey's statement, is exculpatory or at least relevant as to Maund's

guilt. (Id. at PageID# 3247-50). Maund was not the only defendant who thought Carey's alleged

statement was helpful to his defense. Bryon Brockway also argued that the statement indicated

that Brockway did not shoot the victims and was therefore "fair game." (Id. at PageID# 3250).

Counsel for Brockway explained that, based on the opening statements, he expected Carey to argue

that Brockway "somehow put a figurative gun to Adam Carey's head and made him do this." (Id.

at PageID# 3252). Brockway argued that the meeting gives rise to an inference that "these people

are talking together about the crime," therefore it is only fair to include what Carey said at the

meeting because it contradicts Carey's theory that Brockway made him commit the murders. (Id.).

Because Peled was not scheduled to testify for several days, the Court deferred

consideration of the issue of whether Maund or Brockway would be permitted to elicit testimony

from Peled about the July 2020 meeting and Carey's alleged statement. (Id. at PageID# 2971,

3255-56).

The following Monday morning, Carey returned with a written motion to preclude the codefendants from introducing the statement, or, in the alternative, declare a mistrial and sever his

case from that of his co-defendants. (Doc. No. 444). 9 Carey reiterated his argument that the

untimely disclosure, which he did not contend was the fault of the government, could only be

remedied by either exclusion of the evidence of the meeting altogether or by severance. (Id.; see

also Tr. Trans. Vol. 3 (Nov. 3, 2023), Doc. No. 457 at PageID# 3255).

9

Carey's first motion was directed at the Government presenting evidence of Carey's alleged

statement. (Sealed Doc. No. 387). Carey's second motion was directed at his co-defendants. (Doc. No. 444).

Due to difficulties with the electronic docketing system, this motion was presented to the Court and the

parties on November 6, 2023, but not electronically docketed until a later date, which resulted in nonsequential docket number assigned to the motion.

12

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The Court ruled that the defendants would be permitted to cross examine Peled on the fact

that the meeting occurred, when it occurred, and who was there, but could not elicit testimony

about what was said at the meeting-specifically Adam Carey's alleged statement. (Tr. Trans. Vol.

4 (Nov. 6, 2023), Doc. No. 458 at PageID# 3272). The Court stated that if Carey presented

evidence concerning the theory that he forecasted during opening statements-that Brockway

made him commit murder-the Court would reconsider whether to allow evidence of Carey's

alleged statement during the July 2020 meeting and held open the possibility that Peled could be

recalled to testify. (Id. at PageID# 3272-74).

Peled testified on November 6, 2023. (Tr. Trans. Vol. 4 (Nov. 6, 2023), Doc. No. 458).

The questioning about the July 2021 lunch meeting was succinct and appeared to be aimed at

attacking Peled's credibility:

Perry Minton (counsel for Maund): ... at the time of the interview, December

10, 2021, you said you didn't lmow Adam Carey; correct?

Peled:

That is con-ect.

Minton:

But you had eaten lunch with Adam Carey. You said you didn't

lmow him, and you said you could recognize them by pictures.

You recall that?

Peled:

Yes.

Minton:

Okay. And you said you didn't know him, but you had had lunch

with him, had you not?

Peled:

I had lunch with him about six months after the case. And once I

remembered that, I - I brought it up to the prosecutors and told

them that that was the case.

Minton:

f

7

And the funny thing is, is that you didn't remember that,

supposedly, until about two weeks ago?

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Minton:

Well, but what you're saying, though, doesn't make sense

because you had an opportunity at the time on December the 10th

to talk about that - hold on. And then you had the opportunity

with one of the finest lawyers in the country -

Peled:

That is correct.

Minton:

Mr. Rusty Hardin. Okay. You had met with the government. And

what you're - that's the window. That's the window for you to you're saying that jail does these terrible things to you, but yet

you remember it almost two years later, or longer than that now.

Peled:

That is correct. That is correct.

Minton:

Is that another lie that you told on December 10th, sir?

Peled:

Absolutely not.

Minton:

It's not?

Peled:

It's not a lie. As soon as I remembered- as.soon as any detail of

this case came to my mind, I spoke with my lawyers immediately

and brought it to their attention.

(Id. at PageID# 3440-41).

To preserve his testimony about the specific things discussed during the meeting, Peled

testified about the July 2020 meeting out of the presence of the jury. (Id. at PageID# 3529-31).

Pe led confirmed that it was just himself, Carey, and Brockway at the meeting and stated that when

he "asked ifthere was any news, if they have any development in the case, [that Carey] said, 'Don't

worry about it. Nobody cares about them. They're low, common criminal. Nobody cares about

them."' (Id. atPageID# 3531).

A few days later, the Court had occasion to revisit the ruling on the admissibility of Carey's

alleged statement at the July 2020 lunch meeting. As explained above, to address Bruton concerns,

Brockway's statement that "Adam didn't lmow any of this shit," had been redacted from the

recording that the Government played for the jury of the October 25, 2021 meeting between

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Brockway and Conaway. (Gov't Ex. 131 ). But Carey wanted the jury to hear that he "didn't lrnow

any of this shit" and sought to introduce a clip of the same conversation without that specific

redaction. (Tr. Trans. Vol. 7 (Nov. 9, 2023), Doc. No. 461 at PageID# 4109-10).

Brockway did not object to the statement coming in, but argued that introduction of the

statement opened the door to "what Adam did lrnow in the conversation in July at the restaurant."

(Id. at PageID# 4109-10). Counsel for Brockway explained, "The only reason it becomes relevant

for them to put [that statement] in is to go, 'He didn't lrnow anything. He didn't lmow what was

happening. Mr. Brockway said so.' And then I have the obligation to show that he did lrnow. And

he did lrnow. He lrnew that they weren't going to hear from them again." (Id. at PageID# 4110).

"[T]he context of the conversation that they're in is talking about cars, being mobile and the ex

and all this different stuff. And then he says, 'And Adam didn't know anything about this.' That's

going to put me squarely in the position to have to show he, in fact, did. This goes right back to

that theory of the hapless rube."' (Id. at Page ID# 4111 ). The Comt agreed that Carey introducing

the statement "Adam, didn't lmow any of this shit" would open the door to the defense putting on

evidence of Adam Carey's alleged statement during the July 2020 meeting and left Carey with the

choice of whether to introduce the statement. (Id. at PageID# 4114 ("It's your difficult choice Mr.

Perry [counsel for Adam Carey], but it's your choice, nonetheless.")).

Later that day, outside the presence of the jury, Carey made an offer of proof ofBrockway's

statement on October 25, 2021, that "Adam didn't lrnow any of this shit." Carey submitted a USB

drive with the unredacted recording (Carey Ex. 3) and a one-page transcript of this pmtion of the

recording (Carey Ex. 4), which were marked for identification. (Id. at PageID# 4282-83).

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These exhibits were among those inadvertently provided to the jury. At the time of the

Court's post-trial review, the transcript (Carey Ex. 4) was marked in blue ink with "C4" in the

upper corner and the words, "Adam didn't know any of this shit," were underlined in blue ink.

(See id.).

E. Post-Trial Hearing

The Court held a Remmer hearing on May 15, 2024, at which the individuals who served

on the jury were called to testify. (Doc. No. 536, 537; Hearing Trans. (May 15, 2024), Dpc. No.

542).

1. Scope of Questioning

The scope of jury testimony during an mqmry into the validity of the verdict is

circumscribed by Federal Rule of Evidence 606(b), which provides that "a juror may not testify

about any statement made or incident that occurred during the jury's deliberations; the effect of

anything on that juror's or another juror's vote; or any juror's mental processes concerning the

verdict[,]" with the exception that a "juror may testify about whether [] extraneous prejudicial

infonnation was improperly brought to the jury's attention." Fed. R. Evid. 606(b)(2)(A). Courts

applying this rule have not limited the inquiry strictly to "whether" extraneous information was

brought to the jury's attention. Instead, mindful that the purpose of the Remmer hearing is to

determine the impact of the extraneous information on the verdict, courts allow juror testimony

concerning the degree of exposure to the extraneous information and whether the information was

considered by the jury, but not testimony about a juror's own mental processes concerning the

verdict. See e.g., In re Sittenfeld, 49 F.4th 1061, 1068 (6th Cir. 2022) (stating that, "[p]ursuant to

Federal Rule of Evidence 606(b), the district court forbade counsel from asking about jury

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deliberations, except whether the deliberations had included reference to any extraneous

prejudicial information or other outside influences on the jury"); United States v. Cooper, 868 F.2d

1505 (6th Cir. 1989) (when government attorney's notes were inadvertently provided to the jury,

the trial court asked jurors whether they had seen or read the notes); see also, United States v.

Blackwell, 459 F.3d 739, 769 (6th Cir. 2006) (stating that "[a]lthough a juror may testify about

extraneous, prejudicial information brought into the deliberations, the juror may not testify about

his or her own mental processes, i.e., how the jury reached his or her verdict"); United States v.

Davis, 177 F.3d 552,557 (6th Cir. 1999) (remanding for Remmer hearing at which defense counsel

may question jurors to establish that "improper extra-judicial comments influenced the jurors'

deliberations").

With this in mind, the Court ordered that juror testimony would be limited to whether they

considered the specified exhibits, but not how they considered them. (Order, Doc. No. 518). The

scope of questioning would be limited to: (1) whether and to what degree the jury viewed the

specified exhibits; and (2) whether and to what extent the deliberations included reference to any

of these exhibits. (Id.). The Court ordered that the questioning would not include questions about

the content of any deliberations or mental processes concerning the specified exhibits. (Id.).

2. Exhibit Presentation

Before questioning of the jurors began, counsel for Maund posed questions about the

presentation of the exhibits to the jury - specifically about handwritten notes and markings on the

binder slip sheet, divider tabs, exhibits, and sticky notes affixed to the exhibits. (Hearing Trans.

(May 15, 2024), Doc. No. 542 at PageID# 6080-86). The Chief Deputy Clerk, who participated in

the exhibit review, provided information in response to these questions. (Id.). The courtroom

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r

deputy, who was responsible for managing the exhibits during and immediately after the trial, was

not available during the hearing.

The Chief Deputy Clerk stated that the exhibit binders were as they appeared when received

back from the jury. (Id. at PageID# 6087-88). She was asked about the writing on the front of the

red defense exhibit binder and confirmed that she did not write on the binder and did not know

who wrote it. (Id. at PageID# 6088). She stated that she added blank post-it notes to Maund Exhibit

151 and placed the Maund USB drive and a copy of the USB drive in separate envelopes, but did

not make any of the notes on the binder tabs or on the cover of the binder. 10 (Id. at PageID# 608893). The Chief Deputy Clerk also confirmed that she did not make any markings on Carey Exhibit

4. (Id. at PageID# 6093).

At the hearing, the Chief Deputy Clerk and the Court understood that the evidence and

evidence binders as they were reviewed post-trial were in the same form as when they were

presented to the jury. When the Court initiated a review of the exhibits in response to media

inquiries, the Government exhibits were in the two white binders used at trial, and the defense

exhibits were all in a red binder, with handwritten tabs delineating the separate exhibits for each

defendant. The red binder had the cover sheet created by Maund's defense team. Handwritten

additions to this cover sheet stated: "Brockway Exhibits," "Carey Exhibits," and "(flash drive

included)."

10

The Chief Deputy Clerk stated that the following markers were present when she received the

exhibit binders from the courtroom deputy: (1) tabs with handwritten notes stating, "on flash drive"; (2) a

tab stating "Brockway"; (3) a sticky note, but no tab, delineating "Maund 79"; (4) and a sticky note on

Carey exhibit 6 that states "C6." (Hearing Trans. (May 15, 2024), Doc. No. 542 at PagelD# 6092-93).

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During the trial, however, each defendant had a separate exhibit binder in a different color.

Maund's exhibits were in a red binder. Brockway's exhibits were in a black binder. And Carey's

exhibits were in a white binder with a blue slip sheet.

The Comi understood before and during the Remmer hearing that the defense exhibits were

combined and sent to the jury in a single binder-the red binder. After the hearing, however, while

attempting to gather information in response to questions from Maund' s counsel about the

handwriting and sticky notes in the binder that could not be identified by the Chief Deputy Clerk,

the Court learned, for the first time, that the defense exhibits were combined into a single binder

after the verdict. And it was at that time, after the trial, that the handwritten marking,s on the slip

sheet, and the internal dividers for "Brockway" and "Carey" were added. (See Doc. No. 541).

Unfortunately, this misunderstanding had the consequence that when the jurors were

questioned about whether they had viewed certain defense exhibits, they were asked if they

recalled looking in a "red binder," when the exhibits at issue had not been provided to them in a

red binder. 11

3. Testimony

During the hearing, the jurors testified individually concerning their review of the exhibits

at issue. (Hearing Trans. (May 15, 2024), Doc. No. 542). The Court asked a series of questions

and then counsel for each of the parties had the opportunity to ask additional questions. 12

11

Defendants argue that the misunderstanding about the presentation of exhibits and the delay in time

between the trial and the Remmer hearing rendered the hearing constitutionally ineffective.

12

Before the hearing, the parties submitted lists of proposed question for the court to ask the jurors.

(See Doc. Nos. 532, 535). The morning of the hearing, the Court provided the parties with a list of the

questions it intended to ask and gave the parties the opportunity to raise objections to the proposed

questions. The Court modified the wording of certain questions to address the parties' comments. (See

Hearing Trans. (May 15, 2024), Doc. No. 542 at PageID# 6062-6080).

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The jurors were questioned about their review of the evidence in general, as well as their

knowledge of specific unadmitted exhibits that were included with the admitted exhibits. The

jurors universally agreed that they did not look at all of the exhibits during their deliberations,

instead they focused on certain exhibits. Virtually all of the jurors recalled that the jury listened

the recording of the October 25, 2021 meeting between Brockway and Conaway during their

deliberations. The jurors were asked if they recalled seeing five specific exhibits: the two photos

of ammunition (Gov't Exs. 254, 257); the USB drive containing the umedacted excerpt of the

recording of the October 25, 2021 meeting (Carey Ex. 3); the one-page transcript of the excerpt

(Carey Ex. 4); and the unredacted summary of bank transfers from Maund to Peled (Gov't Ex.

359). All of the jurors agreed that their memory of the trial and deliberations had faded.

a. Photos of Ammunition

Juror Nos. 2, 3, and 12 recalled viewing photos of ammunition, but did not specifically

recall Government Exhibits 254,257. (Hearing Trans. (May 15, 2024), Doc. No. 542 at PageID#

6132, 6163, 6219-20). Similarly, Juror No. 13 could not recall with certainty whether he looked at

photos of ammunition during deliberations or only during the trial. (Id. at PageID# 6230). The

remaining jurors stated that they either did not look at photos of ammunition during deliberations

or did not recall having done so. (Id. at PageID# 6101, 6111, 6122, 6144, 6154, 6172, 6192, 6209).

b. Transcripts

Eleven of the twelve jurors testified that they did not see or did not recall seeing any

transcripts during deliberations. 13 (Id. at PageID# 6099-6100, 6111, 6121, 6143, 6153, 6163, 6170,

13

Juror No. 7 initially stated that she recalled seeing a transcript in the jury room, but it became

apparent during her testimony that she misunderstood what a transcript was and thought it referred to the

recording itself. (Hearing Trans. (May 15, 2024), Doc. No. 542 at PageID# 6188-89). After the Court

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6190, 6206-07, 6218, 6228-29). Juror No. 2 testified that she saw a transcript in the jury room but

spent very little time reviewing it and that there were no discussions about the transcript. (Id. at

PageID# 6131). When shown Carey Ex. 4, Juror No. 2 testified as follows:

Court:

Okay. You mentioned earlier a transcript. Do you lrnow whether the transcript

- the portion of the transcript that's in front of you, do you lrnow whether

that's the specific one you recall reviewing?

Witness:

I do not lrnow if this is .the specific one, but I do remember the conversation

was between those two people.

Court:

Which two people?

Witness:

Conway and Brockway.

Court:

Again, you recall seeing a transcript of this as opposed to just listening to the

conversation?

Witness:

Both, yes.

Court:

Because transcripts were [] provided during the trial. And do you specifically

remember looking at a transcript during your deliberations as opposed to

seeing it in trial?

Witness:

I'll say I don't recall because I feel like we did because we couldn't

understand parts of the recording.

Court:

Okay. So during deliberations you have a memory of looking at a transcript?

Witness:

I feel like I do, yes.

explained that a transcript was written as opposed to a recording, she said she could not recall ifthere were

transcripts in the jury room. (Id. at PageID# 6190).

Juror No. 10 also at first stated that she recalled seeing a transcript in the jury room, but then said

that she could not recall and that she was having trouble distinguishing between the trial and deliberations.

(Id. at PageID# 6206-07).

Juror No. 13 also at first stated that she recalled seeing transcripts, but then corrected herself,

explaining that she did not think they had transcripts in the jury room. (Id. at PageID# 6229). Later in her

testimony she was more confident in her memory and stated, ''Now I'm recollecting, we didn't have

anything to read, so we ldnd of had to replay them to hear certain parts." (Id. at PageID# 6236-37).

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(Id. at PageID# 6133-34).

Juror No. 5 was included in the Court's count of jurors who testified that they did not see

transcripts during deliberations because she testified that she did not personally see a transcript in

the deliberation room. (Id. at PageID# 6170). But Juror No. 5 did say that she was "sure it was in

there and one person opened it." (Id.). Juror No. 5, for whom English was not a first language, was

sure that the person who was playing the recordings was also reading from something. "[W]e had

one person who was putting all the CDs and everything in and sometimes reading some of the stuff

to us." (Id. at PageID# 6181 ). But she did not see the transcript herself and agreed the juror could

have been reading from something else such as another exhibit, notes, or even the jury instructions.

(Id. at PageID# 6184).

Juror No. 5 was specifically asked whether one of the jurors was reading from something

to clarify what was being said during the recordings and answered, "No, it was just when we

stopped-I mean literally we went through a lot of, like-listened to some of them over and over

and over again ... if somebody didn't understand, then ... she was, like, reading some of the stuff

and then listen to it again and again." (Id. at PageID# 6181-82; see also id. at PageID# 6179 (stating

that the jury listened to some of the recordings "over and over again just to make sure that we

hear[d] what we really heard").

The jurors who were called to testify later in the hearing did not share Juror No. S's

recollection of someone reading from the transcript. (See id., PageID# 6199, 6225, 6236). To the

extent Juror No. 5 believed the juror who was "reading some of the stuff' was reading from a

transcript of the recordings, the Court finds she was likely mistaken. It bears noting that some of

the contradictions in her testimony may have been due to difficulty understanding the nuance in

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the questions asked. While Juror No. 5 spoke fluent English, it is not her first language. Even some

of the native English speakers had trouble discerning the recordings from the written transcripts of

those recordings.

c. TheUSB

The jurors were asked whether they listened to conversations on a USB drive and all

answered in the affirmative, though one juror-Juror No. 4-clarified that she did not recall what

medium the recordings were on. (Id. throughout and at PageID# 6111). The Court views this

testimony of limited value in determining whether the recordings were on a USB drive or some

other medium. Except as discussed below, the jurors appeared focused on the fact that they listened

to recordings, not the specific medium those recordings were on.

Two jurors, however, stated that they recognized the USB drive that was Carey Ex. 3. Juror

No. 9 testified that he recognized it from the black color and red writing and stated that it was used

on the tv to listen to the recording. (Id. at PagelD# 6145-46). Juror No. 7 also testified that she

remembered seeing the USB drive during deliberations. (Id. at PageID# 6197). She said it was

used to play some of the recordings. (Id.).

d. Spreadsheet

The jurors were shown the spreadsheet that was Government Exhibit 359. All but two of

the twelve jurors testified that they did not look at it 0r did not recall looking at it during

deliberations. (Id. at PageID# 6106, 6112-13, 6124-25, 6136, 6148, 6156, 6175, 6196, 6214, 6224,

6234). Juror No. 7 said she looked at something similar, but did not think it was Government

Exhibit 359. (Id. at PageID# 6196). Juror No. 3 was less certain. (Id. at PageID# 6165). She

recalled a spreadsheet, but was not sure if it was Government exhibit 359. (Id.).

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e. Red Binder

As explained above, during the hearing, the Court and the parties were operating under the

misunderstanding that the defense exhibits were consolidated into the red binder before the

exhibits were delivered to the jury for deliberations. As a result, the jurors were asked questions

about whether they specifically looked at exhibits in the red binder. Most of the jurors responded

that they generally recalled that the exhibits were in binders, but they were less confident about

the color of the binders that they reviewed. (See e.g., id. at PageID# 6106-07, 6113, 6125, 6137,

6166, 6213 ). Based on this testimony, the misunderstanding regarding the consolidation of exhibits

did not materially affect the hearing.

From the testimony at the hearing, the Court concludes that at least one of the jurors

reviewed the unredacted transcript of the excerpt of the recording of the October 25, 2021 meeting

between Brockway and Conaway, which was Carey Exhibit 4. It is also likely that jurors listened

to the unredacted recording. Two jurors recognized the appearance of the USB drive that was

Carey Exhibit 3 and one juror said that it was used to play a recording. If that juror's recollection

is accurate, it would have exposed all of the jurors to the unredacted recording.

ID.

APPLICABLE LAW

Rule 33 of the Federal Rules of Criminal Procedure permits a district court to "vacate any

judgment and grant a new trial if the interest of justice so requires." The decision whether to grant

a new trial is left to the sound discretion of the district court. United States v. Pierce, 62 F.3d 818,

823 (6th Cir. 1995). Although Rule 33 does not define the "interests of justice," it is "widely

agreed" that the standard "allows the grant of a new trial where substantial legal error has

occurred." United States v. Munoz, 605 F.3d 359,373 (6th Cir. 2010) (citing cases).

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The Fifth and Sixth Amendments to the United States Constitution guarantee a criminal

defendant a fair trial, which includes a trial by an impartial jury and the right to confront witnesses

against him. U.S. Const. Amend. V and VI. Indeed, "the rights of confrontation and crossexamination are among the fundamental requirements of a constitutionally fair trial." Parker v.

Gladden, 385 U.S. 363, 364 (1966). And "[t]he presence of even a single biased juror deprives a

defendant of [their] right to an impartial jury." Lanier, 988 F.3d at 294 (citing Williams v. Bagley,

380 F.3d 932, 944 (6th Cir. 2004)).

The Court acknowledges that "a constitutional error does not automatically require reversal

of a conviction." See Weaver v. Massachusetts, 582 U.S. 286, 294 (2017) (citing Arizona v.

Fulminante, 488 U.S. 279, 306 (1991) (quoting Chapman v. California, 386 U.S. 18 (1967)).

Usually, "if the government can show 'beyond a reasonable doubt that the error complained of did

not contribute to the verdict,"' the error is deemed harmless, and the defendant is not entitled to a

new trial. Id.

This harmless-error standard usually applies to circumstances in which extrinsic evidence

has reached the jury. In the Sixth Circuit, however, the defendant has the burden to prove that "the

improper contact caused actual prejudice to the verdict." 14 In re Sittenfeld, 49 F.4th 1061, 1066

(6th Cir. 2022). The Sixth Circuit is "the only circuit that places on the defendant the burden of

14

The Court notes that the Sixth Circuit is unique in placing the burden of proof on the defendant.

See Cunningham v. Shoop, 23 F.4th 636, 648-49 (6th Cir. 2022) (explaining that, contrary to other circuits,

the Sixth Circuit has concluded that Smith v. Phillips, 455 U.S. 209 (1982), "shifted [Remmer's] burden of

showing bias at Remmer hearings to defendants and stripped defendants of the presumption of prejudice");

United States v. Zelinka, 862 F.2d 92, 95 (6th Cir. 1988) ("This court has consistently held that Smith v.

Phillips reinterpreted Remmer to shift the burden of showing bias to the defendant rather than placing a

heavy burden on the government to show that an unauthorized contact was harmless."). Given the limits

imposed on jury questioning by Federal Rule of Evidence 606(b), this Circuit's placement of the burden on

the defendant creates a substantial challenge for the defendant to carry that burden.

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proving bias ... rather than requiring the Government to show 'that an unauthorized contact was

harmless."' Lanier, 988 F.3d at 295 (citing United States v. Zelinka, 862 F.2d 92, 95 (6th Cir.

1988)).

But the Supreme Court has also recognized that some errors are not amenable to hannlesserror analysis. See e.g., Vasquez v. Hillery, 474 U.S. 254 (1986) (unlawful exclusion of member

of a grand jury based on race); McKaskle v. Wiggins, 465 U.S. 168, 177-178, n.8 (1984) (right to

self-representation at trial); Waller v. Georgia, 467 U.S. 39, 49, n.9 (1984) (right to a public

hearing); White v. Maryland, 373 U.S. 59 (1963) (right to counsel at preliminary hearing during

which defendant entered a plea of guilty); Tumey v. Ohio, 273 U.S. 510, 535 (1927) Gudge with

financial interest in the outcome). When a constitutional error is not amenable to harmless-error

analysis, the defendant is entitled to a new trial without a showing that the error affected the

verdict. "[T]he term 'structural error' carries with it no talismanic significance as a doctrinal

matter. It means only that the government is not entitled to deprive the defendant of a new trial by

showing that the error was 'harmless beyond a reasonable doubt.'" Weaver v. Massachusetts, 582

U.S. 286, 299 (2017).

Defendants argue that the error resulted in fundamental unfairness to all parties which, due

to the nature of the exhibits and the Court's evidentiary rulings, is not amenable to harmless-error

review. Defendants contend the error is, therefore, structural and that they are entitled to new trials

without regard to prejudice. The Government disagrees that the errors with the exhibits constitute

structural error, noting that the Supreme Court has rarely held that an error is structural and never

in circumstances like those here. The Govermnent argues that the error is subject to harmless-error

review and that the Court must apply the Sixth Circuit standard, which, as stated above, places the

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burden on the defendant to prove that "the improper contact caused actual prejudice to the verdict."

In re Sittenfeld, 49 F.4th at 1066.

IV.

ANALYSIS

In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court surveyed its previous

rulings and divided trial errors into two categories: (1) those that constitute "structural defects in

the constitution of the trial mechanism, which defy analysis by 'harmless-error' standards;" and

(2) "trial errors" which "occurred during the presentation of the case to the jury, and which may

therefore be quantitatively assessed in the context of other evidence presented in order to determine

whether its admission was harmless beyond a reasonable doubt." Id. at 307-09.

Eight years after Fulminante, the Court again addressed "structural error" in Neder v.

United States, 527 U.S. 1 (1999), a case involving an erroneous jury instruction. Before concluding

that the "harmless-error standard" applied, Chief Justice Rehnquist, writing for a unanimous court,

drew distinctions between "trial errors" and "structural errors" and observed that the Court's

previous cases viewed structural errors as those that "'infect the entire trial process' and

'necessarily render a trial fundamentally unfair."' Id. at 8 (quoting Brecht v. Abrahamson, 507

U.S. 619, 630 (1993), and Rose v Clark, 478 U.S. 570, 579 (1986)). "Put another way, these

[structural] errors deprive defendants of 'basic protections' without which 'a criminal trial cannot

reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal

punishment may be regarded as fundamentally fair."' Id. at 8-9 (quoting Rose, 478 U.S. at 57778).

The Supreme Court again considered the structural error doctrine in United States v.

Gonzalez-Lopez, 548 U.S. 140, 145 (2006). That case involved a convicted defendant who claimed

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that his right to choose which attorney represented him during trial had been violated. Id. After

reiterating that the Sixth Amendment right to counsel includes the right to counsel of one's own

choosing, Justice Scalia went on to hold that the right to a "fair trial" was violated by the violation

of the right to counsel, thus "[n]o additional showing of prejudice is required to make the violation

'complete."' Id. at 146. Noting the distinctions between a defendant's right to counsel of his choice

and the right to effective counsel, the Court had "little trouble concluding that erroneous

deprivation of the right to counsel of choice, 'with consequences that are necessarily

unquantifiable and indeterminate, unquestionably qualifies as structural error."' Id. at 150 (citation

omitted). Justice Scalia explained this conclusion by pointing out the numerous differences in the

trial process that can result from having different counsel and succinctly observed: "Harmlesserror analysis in such a context would be a speculative inquiry into what might have occuned in

an alternate universe." Id.

In 2017, the Supreme Court returned to the structural error doctrine. See Weaver v

Massachusetts, 582 U.S. 286 (2017). After surveying previous cases, Justice Kennedy observed

that "the precise reason why a particular enor is not amenable to [harmless-error] analysis-and

thus the precise reason why the Court has deemed it structural-varies in a significant way from

error to error." Id. at 295. The Court then summarized three rationales for why a particular error

may be deemed structural: (1) "if the right at issue is not designed to protect the defendant from

erroneous conviction but instead protects some other interest"; (2) "if the effects of the error are

simply too hard to measure"; and (3) "if the error always results in a fundamental unfairness." 15

15

In identifying "at least three broad rationales," Justice Kennedy left open the possibility that there

are other reasons a particular error is not amenable to harmless-error review. Weaver, 582 U.S. at 295.

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Id. at 295-96. More than one of these rationales may be part of the reason an error is deemed to be

structural, but Justice Kennedy emphasized that "an error can count as structural even if the error

does not lead to fundamental unfairness in every case." Id. at 296 (citing Gonzalez-Lopez, 548

U.S. at 149, n.4 (rejecting the idea that structural errors "always or necessarily render a trial

fundamentally unfair and unreliable")).

In determining whether this error is structural, which automatically requires a new trial, or

is a trial error subject to harmless-error inquiry, the Court is mindful that the Supreme Court has

cautioned trial courts about the danger of "import[ing] into the initial structural-error determination

(i.e. whether an error is structural) a case-by-case approach that is more consistent with our

traditional harmless-error inquiry (i.e., whether an error is harmless)." Neder, 527 U.S. at 14.

With this background in mind, the Court finds that the errors in presenting certain exhibits

to the jury constitute structural error. Before explaining this conclusion, the Court finds it

important to first address fairness, which is the basis for the third category of structural error

described in Weaver. 582 U.S. at 296. Justice Kennedy stated that one rationale for finding an error

structural is when the error always results in fundamental unfairness. Id. The errors here do not

fall into this Weaver category-there is no question that circumstances in which extraneous

information reaches the jury do not result in fundamental unfairness in every case. 16 But it bears

mentioning that the errors in this case did result in fundamental unfairness. Here, due to an

administrative mistake, the court provided the jury exhibits that had not been admitted into

evidence. And, unlike cases in which the extraneous information is obviously not part of the

16

The Court does not consider whether there is a threshold above which the quantity of extraneous

evidence provided to the jury would result in fundamental unfairness in every case.

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/

evidence presented during the trial, this extraneous evidence was delivered to the jury in evidence

binders, in some cases marked with evidence stickers. Likely in part because of the apparent

imprimatur of the Court, the error went unnoticed until well after the jury reached a verdict.

Defendants are not entitled to a perfect trial, but they are entitled to a fair trial. Lutwak v United

States, 344 U.S. 604, 619 (1953). The error here resulted in fundamental unfairness to these

defendants.

The error here implicates the second rationale articulated by Justice Kennedy in Weaver the effects of the error are simply too hard to measure. Weaver, 582 U.S. at 295. This is largely

because of the Court's conditional ruling that admission or Carey Exhibits 3 and 4 would lead to

additional admissible evidence. Brockway and Maund both expressed intentions of introducing

statements made during the July 2020 meeting if Carey Exhibit 3 was admitted and they were

denied the opportunity to do so based on the mistaken understanding that the jury would not receive

Carey Exhibit 3.

This is not the first case where trial jurors have received documents or other extraneous

infonnation not admitted in court, nor will it be the last. Typically, such error is amenable to

harmless-error inquiry. 17 The structural error here is distinguishable because the Court had ruled

that the erroneously provided documents would open the door to the presentation of additional

evidence. Thus, any inquiry into prejudice would necessitate consideration not only of the effects

17

Although circumstances in which extraneous information reaches the jury are usually amenable to

harmless-error analysis, other courts have found structural error when the Court provided the jury

incriminating evidence that had not been presented at trial. See e.g., United States v. Noushfar, 78 F.3d

1442, 1445 (9th Cir. 1996) (finding that sending tapes to the jury room "violate[d] the basic framework of

the trial system" and that "where the error is so fundamental and defies meaningful review ... harmless or

plain error analysis may not be applied"), amended by United States v. Noushfar, 78 F.3d 1442 (9th Cir.

1996).

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of the evidence erroneously presented to the jury, but also the effects of evidence not presented,

not to mention speculation about the potential arguments of counsel had the various exhibits been

properly admitted. Neither the parties nor the Court can know what impact, if any, the evidence

Brockway and Maund would have introduced would have on the jury because they were not given

that opportunity, nor was Carey or the Government given the opportunity to test that evidence

through cross-examination or rebuttal evidence.

Had the same circumstances occurred without Brockway or Maund stating what they

would do if Carey sought to admit his Exhibit 3, then giving Exhibit 3 to the jury may have fallen

under the "harmless-error" standard like numerous cases involving jury access to extraneous

information. See e.g., United States v. Lani~88 F.3d 284 (6th Cir. 2021); Ewing v. Horton, 914

,-·r

F.3d 1027 (6th Cir. 2019); United States v. G<>nzalez, 227 F.3d 520 (6th Cir. 2000); United States

v. Walker, l F.3d 423 (6th Cir. 1993); United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988); United

States v. Pennell, 737 F.2d 521 (6th Cir. 1984). But nobody can measure, with any degree of

certainty, the effects of something that did not happen. Weaver, 582 U.S. at 295. Under the

circumstances here, "[h]armless-error analysis ... would be a speculative inquiry into what might

have occurred in an alternate universe." Gonzalez-Lopez, 548 U.S. 150.

The jury was exposed to extraneous evidence upon which the Court conditioned potential

submission of other evidence, the effects of which are too hard to measure. The Court thus finds

I

f

the error in this case'is not amenable to harmless-error analysis and the defendants are entitled to

a new trial without a showing of prejudice. See Weaver, 582 U.S. at 295-96. Indeed, it would be

fundamentally unfair to expect the defense to meet such a burden under these circumstances when

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the uncertainties of the effects of the additional evidence make such a showing virtually

impossible.

V.

CONCLUSION

For the reasons stated, defendants' motions for a new trial (Doc. Nos. 491, 496, 493) are

GRANTED. The new trial will be on only the counts on which the jury found the defendants

guilty, as double jeopardy bars retrial of acquitted counts. See Benton v. Maryland, 395 U.S. 784,

796 (1969) (holding that the Double Jeopardy Clause barred retrial on acquitted count after the

jury returned a split guilty/not guilty verdict); Tibbs v. Florida, 457 U.S. 31, 41 (1982) ("A verdict

of not guilty, whether rendered by the jury or directed by the trial judge, absolutely shields the

defendant from retrial.").

It is so ORDERED.

WILLIAM L. CAMPBELL, JR.

GRIEF UNITED STATES DISTRICT JUDGE

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