Does a district court's failure to instruct a jury in open court result in structural error, automatically producing a violation of a defendant's substantial rights?

“Since before the founding of our Republic, courts have universally met the need to educate jurors by orally advising jurors ‘in the presence of the parties, the counsel, and all others . . . in matters of law arising upon th[e] evidence.’” United States v. Becerra, 939 F.3d 995, 1000 (9th Cir. 2019) (quoting 3 William Blacksone, Commentaries *375). In this case, the trial court o rally instruct ed the jury , but th at instruction contained mistaken references to conspiratorial liability i n a nonconspiracy count . The parties noticed the error after the judge finished the jury charge . However, instead of returning the jur y to open court to reinstruct it on that count , the parties simply agreed to correct a written copy of instructions which was provided to the jury . The jury was never informed of the difference between the judge’s oral instructions and the written copy of the instructions it received . On plain error review, the Fourth Circuit determined the district court’s instructions were “stray misstatements .” For this and other reasons, the appellate court affirmed Mr. Jacome’s conviction on that count because he did not establish a reasonable probability of a different outcome. T his type of error—and its various iterations—is subject to harmless -error review in several circuit courts. However, i n the Ninth Circuit, not instructing a criminal jury in open court is treated as structural error, which is “not subject to harmless -error review.” McCoy v. Louisiana, 58 4 U.S. 414, 427 (2018). T he question presented in this matter is I. Does a district court’s failure to instruct a jury in open court result in structural error, automatically producing a violation of a defendant’s ii substantial rights ?