and Submitted August 1, 2016 Pasadena, California
from the United States District Court for the Southern
District of California Roger T. Benitez, District Judge,
Presiding D.C. No. 3:14-cr-00117-BEN-1
Keller (argued), Federal Defenders of San Diego, Inc., San
Diego, California for Defendant-Appellant.
R. Rehe (argued), Assistant United States Attorney, Laura E.
Duffy, United States Attorney, and Peter Ko, Assistant United
States Attorney, Chief, Appellate Section, Criminal Division,
San Diego, California, for Plaintiff-Appellee.
Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit
Judges, and Ronald M. Whyte, [*] District Judge.
panel vacated a sentence for being a removed alien found in
the United States, struck a special finding by the jury that
escalated the statutory maximum sentence from two years to
twenty, and remanded.
panel held that the district judge's failure to notify
and consult with defense counsel before responding to a jury
question seeking guidance on the significance of the special
finding as to the defendant's removal date violated Fed.
R. Crim. P. 43(a) and the defendant's Sixth Amendment
right to counsel.
panel held that the judge's error was not harmless beyond
a reasonable doubt because much of the government's
documentary evidence concerning the defendant's prior
removal contained demonstrable errors, and because defense
counsel, had she been consulted, would have specifically
requested that the district court instruct the jury that the
government was required to prove the removal date beyond a
panel instructed that the government, on remand, may elect to
retry the removal date before a sentencing jury or request
that the district court resentence the defendant under the
two-year sentencing provision in 8 U.S.C. § 1326(a). The
panel instructed that the case be reassigned to a different
WARDLAW, CIRCUIT JUDGE:
Martinez appeals his conviction by jury trial and his
sentence for being a removed alien found in the United States
in violation of 8 U.S.C. § 1326. During its
deliberations, the jury sent a note to the judge seeking
guidance on the significance of a special finding as to
Martinez's removal date. The special finding had
significance only with respect to the sentence imposed by the
jury. Without responding in open court and without notifying
or consulting counsel, the judge penned his own response on
the note and returned it to the jury. Between the time the
jury sent its note and the return of the verdict, an
eight-minute time period elapsed. The jury found Martinez
guilty of illegal reentry and specially and separately found
that he was "removed subsequent to December 3, 2010,
" thereby escalating the statutory maximum sentence from
two years to twenty. The court's failure to consult
Martinez's counsel before responding to the jury note
violated Federal Rule of Criminal Procedure 43 ("Rule
43") and the Sixth Amendment. Because much of the
government's documentary evidence concerning
Martinez's prior removal contained demonstrable errors,
and because defense counsel, had she been consulted, would
have specifically requested that the trial court instruct the
jury that the government was required to prove the removal
date beyond a reasonable doubt, the district judge's
error was constitutionally harmful. We therefore vacate
Martinez's sentence and strike the special finding. On
remand, the government may elect to retry the removal date
issue before a sentencing jury, or it may request that the
district court resentence Martinez under the two-year
sentencing provision in 8 U.S.C. § 1326(a).
December 2013, Border Patrol agents apprehended Martinez
while he was attempting to hide himself in an area just north
of the United States-Mexico border. The government charged
Martinez by information with one count of being a
"removed alien found in the United States, " in
violation of 8 U.S.C. § 1326. The information also
charged that Martinez had been removed "subsequent to
December 3, 2010, " the date he was convicted for felony
commission of a lewd or lascivious act on a child under the
age of 14 under California Penal Code § 288(b)(1).
central issue at trial was alienage. In a one-day evidentiary
phase, the government adduced evidence that Martinez was
removed from the United States in 2012 and reentered in 2013
as a noncitizen without permission to reenter. Defense
counsel did not call any witnesses, but challenged the
accuracy of the prosecution's immigration documents which
had been created by government agents during Martinez's
prior removal and his 2013 apprehension. The documents
indicated that Martinez had told immigration officers he was
not a U.S. citizen but inconsistently stated he was a citizen
of Guatemala and Mexico.
second day, the court gave the jury its initial instructions,
which addressed the one charge, its elements, the
government's burden of proof beyond a reasonable doubt,
and the requirement of unanimity. These instructions failed
to mention that the jury would be asked to make a finding
concerning Martinez's removal date or that the government
had to prove the removal date beyond a reasonable doubt.
closing arguments, the court delivered its "final
instructions." The court also reviewed the verdict form
with the jury. The judge identified the two questions on the
form: whether or not Martinez was guilty of being a removed
alien found in the United States, and, if so, whether
Martinez had been "removed from the United States after
December 3rd, 2010." The judge did not tell the jury
that the government had to prove that Martinez was removed
after December 3, 2010 beyond a reasonable doubt, but did
tell the jury that to respond yes to the question it must
unanimously agree that Martinez had been removed after that
date. The judge also told the jury that if it needed to
communicate to the court, it could do so by written note, but
that any response might be delayed because the court would
"consult with the lawyers before answering it."
10:40 a.m., the jury sent a note to the court that asked,
"On the jury form, what significance is the date of
December 3rd, 2010? (on the portion that asks if he was
deported subsequent to the date of 12/3/2010)." The
court wrote its response directly on the jury note, stating,
"It is a matter for the court to consider, not the jury.
The jury has to consider whether the defendant was deported
or removed after that date."
minutes after it had sent its first note, at 10:48 a.m., the
jury sent a second note announcing that it had reached a
verdict. The judge convened counsel, but before bringing in
the jury, informed counsel that he had received a note from
the jury. He stated, "I didn't think it was
important to bring [counsel] back in to answer this question,
so I answered it myself." The judge also told counsel,
"So you know, if you have a problem with that, I guess
you'll take it up with the Court of Appeals." The
jury found Martinez guilty and that he was removed after
December 3, 2010. The court sentenced Martinez to 57 months
in prison, with two years of supervised release. Defense
counsel apparently had a problem with the court's
decision not to consult with counsel before answering the
jury's question, and this is the resulting appeal.
jurisdiction under 28 U.S.C. § 1291. We review
Martinez's Rule 43 and Sixth Amendment claims de novo.
See United States v. Danielson, 325 F.3d 1054, 1066
(9th Cir. 2003); see also United States v.
Rosales-Rodriguez, 289 F.3d 1106, 1109-11 (9th Cir.
district court violated Federal Rule of Criminal Procedure
43(a) and Martinez's Sixth Amendment right to counsel by
failing to notify and consult with his ...