cannot be considered harmless error. And this is so whether the proper standard for harmless error in this case is harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or fair assurance that the verdict was not affected, see Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). CONCLUSION The judgment of conviction is vacated, and the case is remanded to the District Court for further proceedings. 1 . See Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896). 2 . The amendment to Rule 43 on December 1, 2002, following Media’s trial, effected only stylistic changes in the language of the rule. 3 . See United States v. Evans, 352 F.3d 65, 68-70 (2d Cir.2003)
holding that though judge did not question juror individually note from juror to judge requesting private meeting to ask legal question did not suggest juror would not base verdict on evidence holding a new trial required when juror is replaced by an alternate during jury deliberations holding that a communication between the judge and juror which is unrelated to the case being tried is not improper and prejudicial holding harmless under either standard ex parte communication consisting of telephone call by trial judge to individual juror at home to verify medical condition resulting in replacement by alternate juror without notice to counsel holding that a defendant did not waive his right to be present at an ex parte encounter between the judge and juror because he was not present at the time of the communication and therefore had no opportunity to object when the error was committed