United States v. Martinez

850 F.3d 1097

UNITED STATES of America, Plaintiff–Appellee,

v.Bladimir MARTINEZ, Defendant–Appellant.

No. 15-50205

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 1, 2016 Pasadena, California

Filed March 10, 2017

Doug Keller, Federal Defenders of San Diego, Inc., San Diego, California for Defendant–Appellant.

Mark R. Rehe, 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.

OPINION

WARDLAW, Circuit Judge:

Bladimir 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).

I.

In 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).

The 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.

On the 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.

Following 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."

At 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."

Eight 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.

II.

We have 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. 2002).¹

III.

The 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 counsel before responding to the jury's question.

A. Rule 43(a)

Rule 43 provides a defendant an expansive right to be present throughout his trial. Though that right is also guaranteed by the Constitution, Rule 43 codified a common-law right to be present that is "broader than the constitutional right alone." 3B Charles Alan Wright et al., Federal Practice and Procedure § 721 (4th ed. 2016). Rule 43 outlines when the defendant's presence is required (generally every critical stage of the trial), when it is not, and when presence may be waived.

It is well established that a district court's failure to notify defense counsel about a jury note and to give counsel the opportunity to be heard before the court responds violates Rule 43. In Rogers v. United States , 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), the deliberating jury sent a note to the court inquiring "whether the court would accept the Verdict—Guilty as charged with extreme mercy of the Court." Id. at 36, 95 S.Ct. 2091 (internal quotation marks omitted). The court did not alert the defendant or his counsel and instead instructed the court's marshal "to advise the jury that the [c]ourt's answer was in the affirmative." Id. (internal quotation marks omitted). Five minutes later, the jury returned a guilty verdict recommending the court's mercy. Id. at 37, 95 S.Ct. 2091. The Supreme Court held that the district court's ex parte response to the jury's "request for further instructions" violated Rule 43, which required that the message be "answered in open court," and that defense counsel be "given an opportunity to be heard before the trial judge responded." Id. at 39, 95 S.Ct. 2091.

While the Rogers Court noted that "a violation of Rule 43 may in some circumstances be harmless error," the Court determined that both "the nature of the information conveyed to the jury, in addition to the manner in which it was conveyed," rendered it prejudicial. Id. at 40, 95 S.Ct. 2091. Specifically, the district court should have, "[a]t the very least," told the jury that its recommendation for mercy was not "binding in any way." Id. The Court also noted that, after deliberating for almost two hours, the jury returned its verdict five minutes after learning that it could recommend mercy, which strongly suggested that the district court's response induced unanimity. Id.

The Rogers Court relied on two earlier decisions in which the Court had found error under similar facts, but by reasoning from the principles attendant to the orderly conduct of a jury trial, including "the right to be heard." The first decision, Fillippon v. Albion Vein Slate Co. , 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919), involved a civil suit for negligence. Id. at 77, 39 S.Ct. 435. There, during deliberations, the jury sent a note to the district court asking whether the plaintiff could be found contributorily negligent, and the court replied in writing with supplementary instructions. Id. at 80, 39 S.Ct. 435. The court did so in the absence of the parties and their counsel, and without calling the jury into open court. Id. The Court wrote that the supplementary instructions "ought to [have] be[en] given either in the presence of counsel or after notice and an opportunity to be present." Id. at 81, 39 S.Ct. 435. It explained that "the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties ... to be present...