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9th Circuit: District court erred by answering jury note without consulting with defendant’s counsel

United States v. Martinez, — F.3d —, 2017 WL 942673 (9th Cir. Mar. 10, 2017): District court breached Rule 43 and the Sixth Amendment by answering jury note without consulting with defense counsel

You know that elaborate routine when the jury, in the midst of its deliberations, sends the judge a note, and the judge summons both parties’ counsel, and they all gather in open court and closely examine the note, and then jointly hammer out a painstakingly-worded response? Did you ever wonder whether all of that was really necessary?

Yup. Just ask Bladimir Martinez.

Mr. Martinez’s jury was deliberating over his charge of being a removed alien found in the United States when the jurors decided to send the judge a note. Of what significance, they wondered, was the date of December 3, 2010? They wondered this because the verdict form asked the jury to find (or not) that Mr. Martinez had been deported after that date. The reason they were asked to make that finding was that if that were the case, it would mean that Mr. Martinez had been deported after having been convicted of the felony of lewd or lascivious act on a child in violation of California law — and this in turn would boost Mr. Martinez’s maximum sentence from two years to twenty years. Thus, the complete and correct answer to the jury’s question would have been that the jury could not make that finding unless the government had carried its burden of proving it beyond a reasonable doubt. But the court, without summoning counsel, instead responded that the question was “a matter for the court to consider, not the jury,” and that the jury had “to consider whether the defendant was deported or removed after that date.” The judge’s decision to respond without the involvement of Mr. Martinez’s counsel violated Federal Rule of Criminal Procedure 43 and the Sixth Amendment, both of which vest a criminal defendant with the right to be present throughout his trial, including when jury notes are being answered. And the error was not harmless beyond a reasonable doubt, because (1) the jury had never been instructed that it had to make this finding beyond a reasonable doubt; (2) the court’s confusingly-worded response seemed to water down the jury’s responsibility; and (3) the error related to a tenfold increase in the maximum sentence. The Ninth Circuit credited Mr. Martinez’s counsel’s representation that he would have sought a more accurate response, had he been involved in its drafting. The Ninth Circuit accordingly vacated Mr. Martinez’s sentence, struck the special finding, and remanded the case, noting that the government could opt to retry the removal-date issue before a sentencing jury, if it wished.

(Congratulations to Doug Keller of the Federal Defenders of San Diego, Inc.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)