Cite as 68 F.3d 621 (2nd Cir. 1995)
the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Olano, – U.S. —, —, 113 S.Ct. 1770, 1781, 123 L.Ed.2d 508 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)). Thus, we need not decide whether the error should be regarded as “structural” in nature and therefore not subject to harmless-error review, see Sullivan v. Louisiana, – U.S. —, —–—, 13 S.Ct. 2078, 2081–83, 124 L.Ed.2d 182 (1993), for even assuming that such harmless-error review applies, we cannot confidently say that the guilty verdict rendered on the substantive counts was not attributable to the erroneous charge. Accordingly, we conclude that defendants are entitled to a new trial on the substantive counts.
CONCLUSION
We have considered all of the government’s arguments in support of the judgments of conviction and have found them to be unpersuasive. The judgments are vacated; the case is remanded for a new trial on all counts.
Beebe BOURNE, d/b/a Bourne Co., Plaintiff-Appellant-Cross-Appellee,
v.
The WALT DISNEY COMPANY and Buena Vista Home Video, Defendants-Appellees-Cross-Appellants,
Tower Records, Inc., Barnes & Noble Bookstores, Inc., Blockbuster Entertainment Corp., RKO Warner Video, Inc. and John Does 1 through 100, Defendants.
Nos. 1578, 1579, Dockets 94-7793, 94-7847.
United States Court of Appeals,
Second Circuit.
Argued June 29, 1995.
Decided Oct. 18, 1995.
