In the

United States Court of Appeals

For the Seventh Circuit

Nos. 01-1110, 01-1111 & 01-1185

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

AHMAD BISHAWI, ADOLPH BRADLEY

and CARLAN D. HODGES,

Defendants-Appellees.

Appeals from the United States District Court

for the Southern District of Illinois.

Nos. 97-40044, 98-30149 & 99-40009-- Richard Mills,/1 Judge.

Argued September 7, 2001--Decided November 14, 2001

 Before BAUER, EASTERBROOK and MANION,

Circuit Judges.

 BAUER, Circuit Judge. The three

defendants-appellees in this case were

convicted and sentenced following

individual jury trials over which former

District Judge Paul E. Riley presided.

Each of the three appellees appealed

their convictions and/or sentences, and

while these direct appeals were pending,

Judge Riley left the bench. Subsequent to

Judge Riley’s retirement, all three

appellees filed motions for new trials

pursuant to Federal Rule of Criminal

Procedure 33, claiming that Judge Riley

engaged in improper ex parte

communications with the juries before

whom their cases were tried. Judge

Richard Mills adjudicated the new trial

motions, granting all of the appellees

new trials without any evidentiary

hearings or oral argument. The appellees’

cases were consolidated for this appeal.

For the following reasons, we VACATE the

granting of appellees’ motions for new

trials and REMAND for further proceedings.

I. Background

 On December 7, 1999, the Chief Judge of

the Southern District of Illinois, J.

Phil Gilbert, sent letters to the

defendants-appellees, by way of their

separate counsel, informing them that

Judge Riley had ex parte contact with
deliberating jurors in each of their

cases. The letters did not specify or

otherwise identify the nature of the

referenced ex parte communications. Judge

Gilbert sent these notifications after

receiving information regarding ex parte

contacts between Judge Riley and certain

deliberating juries discovered during the

process of reassigning Judge Riley’s

cases. Lawyers for the appellees as well

as government counsel were given files

containing the portions of such information relevant to each of their respective

cases on January 11, 2000. On the bases

of this information, which is summarized

below, Judge Mills granted the appellees

new trials on August 28, 2000.

 A) Ahmad Bishawi

 Specific to the Bishawi case, the

information file provided by Judge

Gilbert included a note from the jury

asking to view a particular exhibit, to

which Judge Riley replied in longhand

that the jury had all exhibits introduced

at trial in their possession. Also

included was a typewritten note from the

court reporter, Brenda Orsborn, and a

memorandum to file from Judge Gilbert,

both of which indicated that no jury

notes were ever made of record with

counsel. Lastly, the file contained

summaries of interviews conducted by

Judge Gilbert with the court security

officer, Glenn Wright, and one of Judge

Riley’s law clerks, David Agay. According

to these interview summaries, Mr. Wright

and Mr. Agay each recalled that Judge

Riley communicated with deliberating

juries ex parte, but neither could

specify when such communications occurred

or what was said. 

 B) Adolph Bradley

 Among the information provided by Judge

Gilbert to parties interested in the

Bradley case was a jury note, which

sought clarifications of particular jury

instructions. Typewritten at the bottom

of that note was: "Three attached

instructions given to the jurors,

12/17/98." Judge Gilbert’s file

memorandum indicated that after this note

was made of record with the attorneys,

Judge Riley proceeded to the jury room to

speak with the jurors. Beyond the
transcript of this conversation, the only

other noteworthy information provided in

Bradley were summaries of interviews with

Mr. Wright and Mr. Agay that mirrored

those contained in the Bishawi file.

 C) Carlan D. Hodges

 In Hodges, the file provided by Judge

Gilbert included two pages of notes sent

by the jury to Judge Riley during

deliberations as well as Judge Riley’s

answers to the same. The record reveals

that Judge Riley informed and consulted

with all interested parties before having

his written responses to these notes

delivered to the jury. The Hodges file

also included the same summaries of

interviews with Mr. Wright and Mr. Agay

provided in the Bishawi and Bradley

cases.

II. Discussion

 We review the grant of a motion for a

new trial under the abuse of discretion

standard. United States v. Boyd, 55 F.3d

239, 242 (7th Cir. 1995). However, as the

appellant points out, this Court has

recognized that application of the defer

ential abuse of discretion standard to a

successor judge who granted a new trial

based upon review of a cold record may

not be warranted. Bankcard America, Inc.

v. Universal Bankcard Sys., Inc., 203

F.3d 477, 481 (7th Cir. 2000). Indeed,

the question of whether a lesser standard

of review is proper here was extensively

briefed by the parties. Because we find

that in these circumstances it was an

abuse of discretion to grant defendantsappellees’ motions for new trials without

evidentiary hearings or any oral

argument, we need not engage in a

hypothetical discussion regarding the

applicability of a lesser standard of

review to the decisions of the successor

judge who reviewed the records in

appellees’ cases.

 "[T]he mere occurrence of an ex parte

conversation between a trial judge and a

juror does not constitute a deprivation

of any constitutional right. The defense

has no constitutional right to be present

at every interaction between a judge and

a juror, nor is there a constitutional

right to have a court reporter transcribe

every such communication." Rushen v.
Spain, 464 U.S. 114, 119 (1983) (Stevens,

J., concurring in judgment); see also

Verdin v. O’Leary, 972 F.2d 1467, 1481-82

(7th Cir. 1992) (explaining that the con

stitutional right to presence is not

implicated per se by a judge’s ex parte

communication with a deliberating jury).

Rather, the constitutional right to

presence, which derives from the Sixth

Amendment’s Confrontation Clause and the

Due Process Clause of the Fourteenth

Amendment, exists where there is a

reasonably substantial relation to the

fullness of opportunity to defend against

the charge and to the extent that a fair

and just hearing would be thwarted by the

defendant’s absence. United States v.

Gagnon, 470 U.S. 522, 526 (1985) (citing

Snyder v. Massachusetts, 291 U.S. 97,

105-06, 108 (1934)). The broader,

procedural right to be present afforded

by Federal Rule of Criminal Procedure 43

is likewise not without limits,

alleviating the presence requirement when

the proceeding involves only a conference

or hearing upon a question of law. Fed.

R. Crim. P. 43(c)(3); see also United

States v. Johnson, 859 F.2d 1289, 1294

(7th Cir. 1988) ("[A] defendant’s

presence is not required ’[a]t a

conference or argument upon a question of

law.’") (citing Rule 43(c)(3)) (emphasis

in original). Moreover, a defendant’s

absence from any trial proceeding should

be considered in light of the entire

record. United States v. Moore, 936 F.2d

1508, 1523 (7th Cir. 1991) (citations

omitted).

 The defendant bears the burden of

proving the occurrence of ex parte

contact with the jury. Owen v. Duckworth,

727 F.2d 643, 646 (7th Cir. 1984). Once

established, determination of whether the

ex parte contact violates either the

defendant’s constitutional or procedural

right to presence is subject to a

harmless error analysis. See, e.g.,

Rushen, 464 U.S. at 118-19; Rogers v.

United States, 422 U.S. 35, 40 (1975). An

error is harmless, and therefore does not

mandate reversal and a new trial, unless

it affects "substantial rights." Fed. R.

Crim. P. 52(a); United States v.

Patterson, 23 F.3d 1239, 1255 (7th Cir.

1994). Substantial rights are those that

affect the outcome of the case.

Patterson, 23 F.3d at 1255. Thus, a right

to presence violation entitles the

defendant to a new trial only if the ex
parte communication at issue likely

affected the jury’s verdict. United

States v. Pressley, 100 F.3d 57, 60 (7th

Cir. 1996).

 "In a criminal case, any private

communication, contact, or tampering

directly or indirectly, with a juror

during a trial about the matter pending

before the jury is, for obvious reasons,

deemed presumptively prejudicial, if not

made in pursuance of known rules of the

court and the instructions and directions

of the court made during the trial, with

full knowledge of the parties." Remmer v.

United States, 347 U.S. 227, 229 (1954)

(emphasis added). The presumption is, of

course, not conclusive. Id. The

prejudicial effect of an ex parte contact

is without question rebuttable by way of

showing harmless error. Id.; Rushen, 464

U.S. at 118-19; Rogers, 422 U.S. at 40.

Further, a post-trial evidentiary hearing

may be proper to determine whether any

such contact was merely harmless or in

fact prejudicial to the defendant.

Remmer, 347 U.S. at 229-30; Rushen, 464

U.S. at 119-20.

 Where, as here, the record is void of

any specific information regarding the

occurrence and nature of, as well as the

circumstances surrounding the ex parte

contacts, the impact thereof upon the

jurors, and whether or not the juries

were prejudiced, a hearing in which all

interested parties are permitted to

participate is not only proper but

necessary. Remmer, 347 U.S. at 229-30;

Rushen, 464 U.S. at 119-20. The holding

of an evidentiary hearing in this case

would have afforded the parties an

opportunity to interview jurors and

determine "whether extraneous prejudicial

information was improperly brought to the

jury’s attention or whether any outside

influence was improperly brought to bear

upon any juror." Fed. R. Evid. 606. Once

these factual determinations were made,

the trial court would have been equipped

to adequately assess the impact of any ex

parte contacts on the juries before whom

appellees’ cases were tried and decide

whether or not such communications were

harmless error. Remmer, 347 U.S. at 229-

30; Rushen, 464 U.S. at 119-20.

 A court faced with a post-verdict

question of jury prejudice is obligated

to ascertain and examine these basic
facts. United States v. Smith, 26 F.3d

739, 759 (7th Cir. 1994) (citing Owen v.

Duckworth, 727 F.2d at 647). To hold

otherwise would undermine the integrity

of the jury process. See United States v.

Berry, 64 F.3d 305, 307 (7th Cir. 1995)

("A jury verdict is not lightly to be

disturbed through a grant of a motion for

a new trial."); Remmer, 347 U.S. at 229-

30 ("The integrity of jury proceedings

must not be jeopardized by unauthorized

invasions."). The trial court abused its

discretion in failing to hold such a

hearing. Accordingly, we vacate the

judgments of the district court granting

defendants-appellees’ new trial motions

and remand with directions to hold an

evidentiary hearing to determine what ex

parte contact occurred and whether such

contact was prejudicial to the appellees.

III. Conclusion 

 The judgments are VACATED and the cases

REMANDED for further proceedings

consistent with this opinion.

FOOTNOTE

/1 Sitting by designation pursuant to an Order of

Chief Judge Posner.