effects never can be proven with certainty, the issue becomes whether the instruction had “a substantial propensity for prying individual jurors from beliefs they honestly have.” Thomas, 449 F.2d at 1182. Here, the judge preceded his “invitation to dialogue” with his observation that the jury had been deliberating for a longer period of time than it had taken to hear the evidence. The jurors could have taken the remark as a rebuke for engaging in excessively drawn out deliberations. In addition, the judge had entered the jury room on two separate occasions without counsel or a court reporter present, and those visits formed the basis for the judge’s belief regarding the jury’s confusion. See United States v. U.S. Gypsum Co., 438 U.S. 422, 462, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (<HOLDING>). We add to this the fact that the jury
holding new trial required after judges ex parte communication with jury in response to jury question during deliberations because there was no way of reaching a conclusion about what transpired other than by adopting the judges recollection 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 holding that judges ex parte communication telling a jury it needed to reach a verdict was reversible error without any discussion of harmlessness recognizing the hazards of ex parte communication with a deliberating jury recognizing that cases holding that proof of venue is jurisdictional are inconsistent with ex parte seymour and have therefore been overruled