      United States Court of Appeals
                                      For the Seventh Circuit
                                      Chicago, Illinois 60604

                                           July 2, 2001

                                              Before

                      Honorable RICHARD D. CUDAHY, Circuit Judge

                      Honorable MICHAEL S. KANNE, Circuit Judge

                      Honorable ILANA DIAMOND ROVNER, Circuit Judge

No. 98-3659

GREGORY AGNEW,                               ) Appeal from the United States
                                             ) District Court for the Northern
               Petitioner-Appellant          ) District of Illinois, Eastern Division
                                             )
                      v.                     ) No. 95 C 3700
                                             )
BLAIR J. LEIBACH,                            ) Blanche M. Manning, Judge.
                                             )
               Respondent-Appellee.          )


                                             ORDER

         The Opinion issued in the above captioned case, Agnew v. Leibach, No. 98-3659 (7th Cir.
May 21, 2001) is hereby modified as follows. The first paragraph of section II. D. on page 21 of
the slip opinion will be replaced with the following paragraph:

               The government finally contends that even if the trial court erred in allowing
       Deputy House to testify after he had served as bailiff, the error was harmless. Neither
       party briefed the issue of whether this is the type of constitutional error subject to
       harmless error analysis, or whether it should be treated as a structural error. In both
       Turner and Gonzales, the Supreme Court granted the writ without considering whether
       the error was harmless. Nevertheless, we need not decide today whether the error is
       structural because we find in any event that it was not harmless. Constitutional error in a
       habeas case is not harmless if it “had substantial and injurious effect or influence in
       determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
       (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this standard, the
       petitioner must show actual prejudice in order to obtain relief based on a trial error.
