Petition for Writ of Certiorari — Adam Carey, Petitioner v. United States
Supreme Court briefMay 26, 2026
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No.
IN THE
ADAM CAREY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari
To the United States Court of Appeals
For the Sixth Circuit
Appendix to
Petition for Writ of Certiorari
Benjamin Perry
MEISTER, SEELIG & SCHUSTER
40 Music Square East
Nashville, TN 37203
(615) 242-4200
bhp@mss-pllc.com
John Bailey
Counsel of Record
330 Franklin Road,
Suite 135A-427
Brentwood, TN 37027
(615) 319-1342
hansgurkin@att.net
U.S. v. MAUND
Cite as 167 F.4th 941 (6th Cir. 2026)
941
In sum, because Ferguson is the thirdparty beneficiary of Ewanda’s life-insurance policy, the district court was not required to balance the equities before ordering rescission and granting summary
judgment in favor of Brighthouse.
(1) district court’s error in giving jury
unadmitted exhibits was not structural
error;
IV.
(3) district court’s error in giving unadmitted exhibits to jury was harmless as to
each defendant.
For the foregoing reasons, we affirm the
district court’s order of rescission, grant of
summary judgment in favor of Brighthouse, and dismissal of the action.
(2) as matter of first impression, jury’s
exposure to unadmitted exhibits with
no curative instruction is not structural error; and
Reversed and remanded.
1. Criminal Law O1139
,
Although Court of Appeals generally
reviews district court’s grant of new trial
in criminal case for abuse of discretion, it
reviews de novo district court’s application
of proper legal standard, including determination whether harmless-error review
applies. Fed. R. Crim. P. 33.
UNITED STATES of America,
Plaintiff-Appellant,
2. Criminal Law O1162
v.
Structural error will automatically
warrant new trial, despite effect of error
on trial’s outcome. Fed. R. Crim. P. 33.
Erik Charles MAUND; Bryon
Brockway; Adam Carey,
Defendants-Appellees.
3. Criminal Law O1165(1), 1166.10(2)
No. 24-5932
United States Court of Appeals,
Sixth Circuit.
Argued: December 11, 2025
Decided and Filed: February 23, 2026
Background: After jury convicted defendants of conspiracy to commit kidnapping,
kidnapping resulting in death, and conspiracy to commit murder-for-hire, the United
States District Court for the Middle District of Tennessee, William L. Campbell,
Jr., J., 2024 WL 4217518, granted defendants’ motions for new trial, and government appealed.
Holdings: The Court of Appeals, Ritz,
Circuit Judge, held that:
Error may be structural, and thus
automatically warrant new trial: (1) where
right at issue is not designed to protect
defendant from erroneous conviction but
instead protects some other interest; (2) if
error’s effects are simply too hard to
measure, for example where defendant is
denied right to select his or her own attorney; or (3) if error always results in fundamental unfairness, for example where indigent defendant is denied attorney. Fed.
R. Crim. P. 33.
4. Criminal Law O1174(1)
Trial error that occurs when unauthorized invasion on jury proceedings, like
extraneous influence, affects defendant’s
Sixth Amendment right to fair trial by
panel of impartial, indifferent jurors is not
Pet App. 1
942
167 FEDERAL REPORTER, 4th SERIES
structural, and thus does not automatically
warrant new trial. U.S. Const. Amend. 6.
5. Criminal Law O959
District court must hold hearing when
defendant presents colorable claim that extraneous information or contact had obvious or likely adverse effect on jury, at
which court must determine whether improper contact caused actual prejudice to
verdict, thereby warranting new trial.
6. Criminal Law O1168(2)
Bruton error—which occurs when defendant is deprived of his Sixth Amendment right of confrontation because facially incriminating confession of nontestifying
codefendant is introduced at their joint
trial—is not structural, and thus does not
automatically warrant new trial, and instead requires trial court to examine circumstances of case to determine whether
error was harmless. U.S. Const. Amend.
6.
7. Criminal Law O662.10
Nontestifying codefendant’s statement
does not violate Confrontation Clause
where it does not name defendant, and
implicates him only in light of other evidence presented at trial. U.S. Const.
Amend. 6.
8. Criminal Law O1174(6)
District court’s error in prosecution
for murder-for-hire, kidnapping, and kidnapping conspiracy in giving jury unadmitted exhibits, including nontestifying co-defendant’s statement identifying another codefendant by name, was not structural error, and thus was subject to harmlesserror standard in deciding whether error
warranted new trial, despite defendants’
contention that error was structural because influence on jury occurred with
court’s imprimatur, and was discovered
post-verdict, leaving no opportunity for curative instruction; district court was capa-
ble of determining harmfulness of a few
unredacted sentences.
U.S. Const.
Amend. 6.
9. Criminal Law O1174(6)
Jury’s exposure to unadmitted exhibits with no curative instruction is not structural error, and thus does not automatically warrant new trial.
10. Criminal Law O1165(1)
Error is harmless beyond reasonable
doubt where properly admitted evidence of
guilt is so overwhelming that prejudicial
effect of error is insignificant by comparison, but if there is reasonable possibility
that improperly admitted evidence contributed to conviction, then error is not harmless.
11. Criminal Law O1174(6)
District court’s error in giving unadmitted exhibits to jury in defendant’s
prosecution for murder-for-hire, kidnapping, and kidnapping conspiracy was
harmless; government presented significant other evidence of guilt—including recording of defendant discussing his own
involvement in crimes and his agreement
to second, fictional murder-for-hire, several witnesses’ testimony directly implicating
him in murder-for-hire scheme, and surveillance footage placing him at victim’s
apartment prior to murders—and jury’s
erroneous receipt of exhibits directly supported defendant’s theory that he lacked
knowledge of crimes.
12. Criminal Law O1174(6)
District court’s error in defendant’s
murder-for-hire prosecution in giving jury
unadmitted exhibits was harmless; government presented significant other evidence
of guilt—including recorded call between
defendant and co-defendant in which defendant incriminated himself, co-defendant’s testimony, separate from his unadmitted testimony regarding defendant’s
Pet App. 2
943
U.S. v. MAUND
Cite as 167 F.4th 941 (6th Cir. 2026)
knowledge, directly implicating defendant
in scheme, defendant’s coworkers’ testimony that, at defendant’s request, one coworker contacted co-defendant so that codefendant could help defendant handle another co-defendant’s extortion attempts,
and bank records showing that defendant
transferred $150,000 to co-defendant on
afternoon of murders—and unadmitted exhibits did not directly inculpate or exculpate defendant.
13. Criminal Law O1174(6)
District court’s error in giving unadmitted exhibits to jury in defendant’s prosecution for murder-for-hire, kidnapping,
and kidnapping conspiracy was harmless,
even though exhibits directly contradicted
his defense that his co-defendant committed murders alone; government’s evidence—including exhibits that captured
defendant discussing his involvement in
crimes and agreeing to another murderfor-hire scheme, co-defendant’s testimony
directly implicating defendant in murderfor-hire scheme, evidence that defendant
was in city during murders and left after
murders, and evidence that, while in city,
he rented car that matched vehicle captured on surveillance footage driving near
where victims’ bodies were found—overwhelmed any possible prejudice from error.
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: Nicholas J. Goldin, UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellant. David M.
Gonzalez, SUMPTER & GONZA
i LEZ,
L.L.P., Austin, Texas, for Appellee Maund.
Luke A. Evans, FIOLA PARKER, 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 & GONZA
i LEZ, L.L.P., Austin, Texas, Samuel E. Bassett, Perry Q. Minton,
MINTON, BASSETT, FLORE & CARSEY, Austin, Texas, John-David H. Thomas, BARNES & THORNBURG, L.L.P.,
Nashville, Tennessee, for Appellee Maund.
Luke A. Evans, FIOLA PARKER, Murfreesboro, Tennessee, for Appellee Brockway. Benjamin H. Perry, LAW OFFICE
OF BENJAMIN H. PERRY, Nashville,
Tennessee, John Bailey, Brentwood, Tennessee, for Appellee Carey.
Before: MOORE, THAPAR, and RITZ,
Circuit Judges.
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.
Pet App. 3
944
167 FEDERAL REPORTER, 4th SERIES
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
court 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.
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
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);
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
Maund Ex. 59 (video surveillance of
Williams’s apartment); and Maund Ex. 78
(same).
2.
The 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 of Maund’s residence).
Pet App. 4
U.S. v. MAUND
Cite as 167 F.4th 941 (6th Cir. 2026)
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’
bodies were found. 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
3.
In Carey Exhibit 4, Brockway’s statement
(‘‘Adam didn’t know any of this shit.’’) was
underlined in blue ink, but it is unclear
945
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),
PageID 5721; RE 363-4, Gov. Ex. 132 (Redacted), PageID 2084. This statement suggested a relative lack of knowledge on
Carey’s part regarding the murder-forhire 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
government voluntarily redacted this sentence to avoid any potential Confrontation
Clause problems under Bruton v. United
States, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (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 USBdrive recording) and 4 (a one-page transcript). These two exhibits each contained
a short excerpt of Brockway’s conversation
with the unredacted statement.3
whether this edit occurred before or after the
jury received the transcript.
Pet App. 5
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167 FEDERAL REPORTER, 4th SERIES
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 knowledge. In
other words, the court left it up to Carey:
either the court would admit Carey Exhib-
its 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, 74 S.Ct.
450, 98 L.Ed. 654 (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
Pet App. 6
947
U.S. v. MAUND
Cite as 167 F.4th 941 (6th Cir. 2026)
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 court
stated:
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. 3:21CR-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 con-
solidation 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 evidence—during 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 harmlesserror analysis. Maund, 2024 WL 4217518,
at *15.
E.
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.
The defendants urge us to affirm the
district court’s structural error ruling. In
the alternative, defendants argue that the
error, even if not structural, was harmful,
so a new trial is appropriate.
II.
[1] 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
Pet App. 7
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167 FEDERAL REPORTER, 4th SERIES
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, 126 S.Ct. 2546, 165 L.Ed.2d 466
(2006) (treating structural error as a legal
question).
A.
[2] 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[,] TTT require reversal of the conviction.’’ Sullivan v. Louisiana, 508 U.S. 275,
278-79, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993) (citing Chapman v. California, 386
U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d
705 (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,
111 S.Ct. 1246, 113 L.Ed.2d 302 (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, 933 F.3d 618,
628 (6th Cir. 2019), because they ‘‘affect[ ]
the framework within which the trial proceeds,’’ Fulminante, 499 U.S. at 310, 111
S.Ct. 1246, and ‘‘render[ ] a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence,’’
Recuenco, 548 U.S. at 219, 126 S.Ct. 2546
(quoting Neder v. United States, 527 U.S.
1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35
(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, 137 S.Ct. 1899, 198 L.Ed.2d
420 (2017); see also Neder, 527 U.S. at 7,
119 S.Ct. 1827. 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, ––– U.S. ––––, 146
S.Ct. 248, 223 L.Ed.2d 86 (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, 137 S.Ct.
1899.
[3] There are three independent reasons an error may be structural. Id. at 295,
137 S.Ct. 1899. 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 al-
Pet App. 8
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Cite as 167 F.4th 941 (6th Cir. 2026)
ways results in fundamental unfairness,’’
for example where ‘‘an indigent defendant
is denied an attorney.’’ Id. at 296, 137 S.Ct.
1899. However, ‘‘an error can count as
structural even if the error does not lead
to fundamental unfairness in every case.’’
Id. (citation modified).
[4, 5] 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, 123
S.Ct. 2527, 156 L.Ed.2d 471 (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 Sittenfeld, 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 contact caused actual prejudice to the verdict,’’ thereby ‘‘warrant[ing] a new trial.’’
Id. at 1066-67 (citation modified).
[6, 7] Similarly, Bruton errors are not
structural. See Brown v. United States,
411 U.S. 223, 231, 93 S.Ct. 1565, 36
L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 253-54, 89 S.Ct. 1726, 23
L.Ed.2d 284 (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,
143 S.Ct. 2004, 216 L.Ed.2d 597 (2023)
(quoting Richardson v. Marsh, 481 U.S.
200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176
(1987)). But ‘‘a nontestifying codefendant’s
statement does not violate the Confronta-
949
tion 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, 89 S.Ct. 1726.
[8] Here, the jury inappropriately received unadmitted evidence containing a
nontestifying codefendant’s statement
identifying another codefendant 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 harmlesserror 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, 1 F.3d 423, 429
(6th Cir. 1993) (citation modified).
Moreover, the defendants’ alternative
suggestion that the error here was not a
Remmer error because it was not extrane-
Pet App. 9
950
167 FEDERAL REPORTER, 4th SERIES
ous 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, 135 S.Ct. 521, 190
L.Ed.2d 422 (2014) (citation modified). So,
under Federal Rule of Evidence 606(b)(1),
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, 107 S.Ct. 2739, 97
L.Ed.2d 90 (1987); then quoting Parker v.
Gladden, 385 U.S. 363, 363, 87 S.Ct. 468,
17 L.Ed.2d 420 (1966)).
As the defendants here point out, Remmer errors often arise from court-external
influences. See, e.g., Sittenfeld, 49 F.4th at
1067 (juror posted and received comments
on Facebook during deliberations); Ewing
v. Horton, 914 F.3d 1027, 1029 (6th Cir.
2019) (jurors conducted internet research
on the case); United States v. Kechego, 91
F.4th 845, 851 (6th Cir. 2024) (jurors 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.
[9] 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, 137 S.Ct. 1899.
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, 137 S.Ct. 1899.
The two primary examples of too-hard-tomeasure structural errors are denial of
choice of counsel and denial of a proper
jury verdict. See, e.g., McCoy v. Louisiana,
584 U.S. 414, 427, 138 S.Ct. 1500, 200
L.Ed.2d 821 (2018); Sullivan, 508 U.S. at
281, 113 S.Ct. 2078. 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 harmlesserror 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)
(‘‘We generally have analyzed outside intrusions upon the jury for prejudicial impact.’’); Harrington, 395 U.S. at 254, 89
S.Ct. 1726 (‘‘[W]e conclude that this viola-
Pet App. 10
U.S. v. MAUND
Cite as 167 F.4th 941 (6th Cir. 2026)
tion 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 structural errors.’’
Neder, 527 U.S. at 14, 119 S.Ct. 1827; 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. Noushfar, 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
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
951
both nonbinding and distinguishable. The
panel in Noushfar 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 144546. 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, 119 S.Ct. 1827
(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, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), see Kimbrel, 532 F.3d
jury) because defendants only meaningfully
argue that a portion of the error (exposure to
Carey Exhibits 3 and 4) was structural or
harmful.
Pet App. 11
952
167 FEDERAL REPORTER, 4th SERIES
at 469; and ‘‘denial of a public trial,’’ Greer
v. United States, 593 U.S. 503, 513, 141
S.Ct. 2090, 210 L.Ed.2d 121 (2021) (quoting United States v. Davila, 569 U.S. 597,
611, 133 S.Ct. 2139, 186 L.Ed.2d 139
(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, 111 S.Ct. 1246.
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 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).
1.
We first address the conflicting burdenof-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, 87 S.Ct.
824 (‘‘[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 errors we have
held that the ‘‘defendant TTT carrie[s] the
burden of proving actual prejudice,’’ even
though such errors are constitutional errors. 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 TTT 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 harmlesserror review applies.’’ 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 standard’’). The error
here was harmless under either standard.
2.
[10] 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 TTT 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.
Pet App. 12
953
U.S. v. MAUND
Cite as 167 F.4th 941 (6th Cir. 2026)
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, 106 S.Ct. 1431, 89 L.Ed.2d 674
(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.
[11] 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 unrebutted. The court’s error thus created the
exact situation that Carey advocated for at
trial: introduction of Carey Exhibits 3 and
4 without Peled’s 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.
[12] 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 murderfor-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 primary error here was the jury’s improper receipt of
a single Carey-exculpatory 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
Pet App. 13
954
167 FEDERAL REPORTER, 4th SERIES
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.
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).
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 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.
c.
[13] For Brockway, the significance of
the government’s evidence also overwhelms any possible prejudice from the
error, making it harmless.
Evidence of guilt. 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
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.
Pet App. 14
,
Warning
As of: May 23, 2026 6:07 PM Z
United States v. Maund
United States District Court for the Middle District of Tennessee, Nashville Division
September 17, 2024, Filed
NO. 3:21-cr-00288
Reporter
2024 U.S. Dist. LEXIS 167287 *; 2024 LX 268188; 2024 WL 4217518
UNITED STATES OF AMERICA v. ERIK MAUND, BRYON BROCKWAY, ADAM CAREY
Subsequent History: Reversed by, Remanded by United States v. Maund, 2026 U.S. App.
LEXIS 5324, 2026 WL 497464 (Feb. 23, 2026)
Prior History: United States v. Carey, 2022 U.S. Dist. LEXIS 161215, 2022 WL 4097713 (M.D.
Tenn., Sept. 7, 2022)
Core Terms
juror, binder, deliberate, drive, structural error, new trial, harmless-error, fair trial, conversation,
red, fundamentally unfair, redact, murder, extraneous information, alleged statement,
discrepancy, unredacted, remember, kidnap, listen, lunch, extraneous, amenable, trial court,
murder-for-hire, ammunition, conspiracy, indictment, restaurant, harmless
Counsel: [*1] For Erik Charles Maund, aka: Erik, Erik Moore, Defendant: David M. Gonzalez,
Sumpter & Gonzalez, LLP, Austin, TX USA; David F. Minton, Samuel E. Bassett, Minton,
Bassett, Flores & Carsey, Austin, TX USA; John-David H. Thomas, Barnes & Thornburg LLP
(Nashville), Nashville, TN USA; Perry Q. Minton, Minton, Bassett, Flores & Carsey, P.C., Austin,
TX USA.
For Bryon Brockway, Defendant: Luke A. Evans, LEAD ATTORNEY, Evans Bulloch Parker
PLLC, Murfreesboro, TN USA; M. Brian Magee, Haffeman Magee Thomas, Savannah, GA USA;
Paul J. Bruno, Barrett Johnston Martin & Garrison, LLC, Nashville, TN USA.
For Adam Carey, Defendant: Benjamin H. Perry, LEAD ATTORNEY, Nashville, TN USA; John
M. Bailey, IV, Brentwood, TN USA.
U.S. Attorneys: Robert E. McGuire, LEAD ATTORNEY, U. S. Attorney's Office (Nashville),
Nashville, TN USA; Brent Adams Hannafan, U.S. Attorney's Office (Nashville), Nashville, TN
USA; Brooke C. Farzad, USAO, Nashville, TN USA; Emma Dinan Ellenrieder, PRO HAC VICE,
U.S. Department of Justice, Washington, DC USA.
Judges: WILLIAM L. CAMPBELL, JR., CHIEF UNITED STATES DISTRICT JUDGE.
Opinion by: WILLIAM L. CAMPBELL, JR
Opinion
Pet App. 15
Page 2 of 20
2024 U.S.
U S Dist.
D st LEXIS
XIS 167287
167287, *1
MEMORANDUM AND ORDER
I. INTRODUCTION
The Sixth Amendment to the U.S. Constitution expressly guarantees "the accused" fundamental
protections [*2] that courts throughout our history have acknowledged protect each citizen's
right to a "fair trial." United States v. Gonzalez-Lopez, 548 U.S. 140, 145, 126 S. Ct. 2557, 165
L. Ed. 2d 409 (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 perfect one." Lutwak v United States, 344 U.S.
604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (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 courtroom 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, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966) (citation omitted).
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 [*3] 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 [*4] 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 courts acknowledge when they fail to provide
a fair trial and take appropriate action to remedy that failure. The rights of all involved demand
no less.
Pet App. 16
Page 3 of 20
2024 U.S.
U S Dist.
D st LEXIS
XIS 167287
167287, *4
II. PROCEDURAL HISTORY
A. The Charges and Trial
On November 29, 2021, Erik Maund, Gilad Peled, 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)(1) 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 [*5] 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 Government'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
for conspiracy to commit kidnapping. (Tr. Trans. Vol. 9 (Nov. 14, 2023), Doc. No. 463 at
PageID# 4580-4638; Tr. Trans. Vol. 10 (Nov. 15, 2023), Doc. No. 464 at PageID# 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 [*6] 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 of requests 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.
1 Over 260 exhibits were admitted at trial. (See Amended Exhibit and Witness List, Doc. No. 504).
Pet App. 17
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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 that
they [*7] 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 parties 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) Government Exhibit 103 — CD with pinger messages
b) Government Exhibit 112 — CD with phone records (CD provided to jury was blank)
c) 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) Government Exhibit 254 — photo from execution of search warrant at Carey property
b) Government Exhibit 257 — photo from execution of search warrant at Carey property
c) Carey Exhibit 3 — Unredacted recording of Brockway / Conaway conversation
d) Carey Exhibit 4 — Partial transcript of unredacted recording of Brockway / Conaway
conversation
e) Maund Exhibit 8 — JP Morgan Chase Bank records for Speartip (from USB drive)
f) Maund Exhibit 9 — JP Morgan Chase Bank records for Speartip (from USB drive)
g) Maund Exhibit 51 — Excel spreadsheet of text messages to and [*8] from Holly
Williams from June 6, 2018, through March 11, 2020 (from USB drive)
h) Maund Exhibit 59 — Video surveillance footage from Holly Williams' apartment (from
USB drive)
i) Maund Exhibit 78 — Video surveillance footage from Holly Williams' apartment (from
USB drive)
(Doc. No. 502). The Court later became aware that Government Exhibit 359, from which a
reference to the date the murders occurred was to have been redacted, was included with the
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).
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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 [*9] 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, post-trial 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 a hearing pursuant to Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98
L. Ed. 654, 1954-1 C.B. 146 (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 [*10] 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.
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).
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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 alleged
prejudice arising from Carey Exhibits 3 and 4.5,6 To understand why, some background is
necessary.
1. Pretrial Evidentiary Rulings
Gilad Peled pled guilty to the charges in the superseding indictment. (Doc. No. [*11] 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, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (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, 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 [*12] 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(B), Doc. No. 204).
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 Government 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.
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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 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 government 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 [*13] 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 Government 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
government 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 [*14] 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
7 The Government filed transcripts that corresponded to the five recorded statements it intended to play at trial:
(1) Recorded phone call between David Conaway and Adam Carey on Sept. 21, 2021 (Doc. No. 363-1 (Trial Exhibit 126 (for
identification only));
(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. 363-4 (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)).
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words to the effect (paraphrased): 'No and we never will. No one cares about those two
people.'"
(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 [*15] 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 1, 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
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 [*16] 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
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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untimely disclosure, which he did not contend was the fault of the government, [*17] 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).
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 know Adam Carey; [*18] correct?
Peled: That is correct.
Minton: But you had eaten lunch with Adam Carey. You said you didn't know 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: And the funny thing is, is that you didn't remember that, supposedly, until about two
weeks ago?
...
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.
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 non-sequential docket number assigned to the motion.
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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 [*19] 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). Peled
confirmed that it was just himself, Carey, and Brockway at the meeting and stated that when he
"asked if there 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. at PageID# 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 know any of this shit," had been redacted
from the recording that the Government played for the jury of the October 25, 2021 meeting
between Brockway and Conaway. (Gov't Ex. 131). But Carey wanted the jury to hear that he
"didn't know any of this shit" [*20] 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# 410910).
Brockway did not object to the statement coming in, but argued that introduction of the
statement opened the door to "what Adam did know 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 know anything. He didn't
know what was happening. Mr. Brockway said so.' And then I have the obligation to show that
he did know. And he did know. He knew 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 PageID# 4111). The Court agreed
that Carey introducing the statement "Adam, didn't know any of this shit" would open the door to
the defense [*21] 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.")).
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Later that day, outside the presence of the jury, Carey made an offer of proof of Brockway's
statement on October 25, 2021, that "Adam didn't know any of this shit." Carey submitted a USB
drive with the unredacted recording (Carey Ex. 3) and a one-page transcript of this portion of the
recording (Carey Ex. 4), which were marked for identification. (Id. at PageID# 4282-83).
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), Doc. No. 542).
1. Scope of Questioning
The scope of jury testimony during an [*22] inquiry 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
information 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 deliberations, except whether the deliberations had included reference to any
extraneous prejudicial information or other outside influences on the [*23] 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
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about the content of any deliberations or mental processes concerning the specified exhibits.
(Id.).
2. Exhibit Presentation
Before questioning of the jurors began, counsel [*24] 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 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# 6088-93). The Chief Deputy Clerk also confirmed that she did not make
any [*25] 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)."
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 Court 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 [*26] 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
markings on the slip sheet, and the internal dividers for "Brockway" and "Carey" were added.
(See Doc. No. 541).
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 PageID# 6092-93).
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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
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 [*27] 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 unredacted
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 [*28] 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, 6190,
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).
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 explained that a transcript was written as opposed to a recording, she said she
could not recall if there were transcripts in the jury room. (Id. at PageID# 6190).
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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 know whether the transcript — the
portion of the transcript that's in front of you, do you know whether that's the specific one you
recall reviewing?
Witness: I do not know 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 [*29] 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.
(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. 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 kind of had to replay them to hear certain parts." (Id. at
PageID# 6236-37).
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Juror No. 5 was specifically asked whether one of the [*30] 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. 5'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 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 [*31] written
transcripts of those recordings.
c. The USB
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 PageID# 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 or did not recall looking at it during [*32]
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.).
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,
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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 [*33] 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.
III. 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).
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
cross-examination are among the fundamental requirements of a constitutionally fair trial."
Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966). And "[t]he
presence of even a single biased juror [*34] 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, 137 S. Ct. 1899, 198 L. Ed. 2d
420 (2017) (citing Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302
(1991) (quoting Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (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
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, 102 S. Ct. 940, 71 L. Ed. 2d 78 (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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(6th Cir. 2022). The Sixth Circuit is "the only circuit that places on the defendant the burden of
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 harmlesserror analysis. See e.g., Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598
(1986) (unlawful exclusion of member of a grand jury based on race); McKaskle v. Wiggins, 465
U.S. 168, 177-178, n.8, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984) (right to self-representation at
trial); Waller v. Georgia, 467 U.S. 39, 49, n.9, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (right to a
public hearing); White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963) (right to
counsel at preliminary hearing during which defendant entered a [*35] plea of guilty); Tumey v.
Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs.
185, 25 Ohio L. Rep. 236 (1927) (judge 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, 137 S. Ct. 1899, 198 L. Ed.
2d 420 (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 Government 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 burden on [*36] 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, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (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, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (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
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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, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993),
and Rose v Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)). "Put another
way, these [structural] errors deprive defendants of 'basic protections' [*37] 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 577-78).
The Supreme Court again considered the structural error doctrine in United States v. GonzalezLopez, 548 U.S. 140, 145, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). That case involved a
convicted defendant who claimed 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 [*38] from having
different counsel and succinctly observed: "Harmless-error analysis in such a context would be a
speculative inquiry into what might have occurred in an alternate universe." Id.
In 2017, the Supreme Court returned to the structural error doctrine. See Weaver v
Massachusetts, 582 U.S. 286, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017). After surveying
previous cases, Justice Kennedy observed that "the precise reason why a particular error 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 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 [*39] 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
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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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 [*40] 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
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, 73 S. Ct. 481, 97 L. Ed. 593 (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 of 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 [*41] 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
information 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
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.
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.
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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Had the same circumstances occurred without Brockway or Maund stating what they would do if
Carey sought to admit his [*42] 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. Lanier, 988 F.3d 284 (6th Cir. 2021); Ewing v. Horton,
914 F.3d 1027 (6th Cir. 2019); United States v. Gonzales, 227 F.3d 520 (6th Cir. 2000); United
States v. Walker, 1 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
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 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 [*43] jeopardy bars retrial of acquitted counts. See Benton v. Maryland, 395
U.S. 784, 796, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (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, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (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.
/s/ William L. Campbell, Jr.
WILLIAM L. CAMPBELL, JR.
CHIEF UNITED STATES DISTRICT JUDGE
End of Document
Pet App. 34
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.