How to respond to an inquiry by the judge?

Neither the defendants nor counsel were informed before the ex parte meeting that the judge had received an inquiry. Consequently, counsel could neither suggest how to handle the inquiry nor comment on the judges proposed response. See United States v. Ronder , 639 F.2d 931, 935 (2d Cir. 1981) (reversing where trial court failed to discuss several jury notes with counsel because disclosure of at least one of the notes "might well have prompted counsel to suggest a response appropriately tailored to the circumstances"). This lost opportunity was in no sense a formality. The crimes charged in the indictment were non-violent crimes. Yet the judges comments to the jurors strongly implied that the defendants posed some threat of physical danger to the jurors. After being informed by the jurors that they believed they were being observed by two of the defendants, the judge described the defendants behavior as "disturbing," "inappropriate," and unusual in his "years and years" of experience. J.A. 76970. Had defense counsel been given an opportunity to respond, they likely would have provided an alternative account of the circumstances, and one that could well have fully addressed the jurors perceived safety concerns.