Today, in United States v. Martinez, --- F.3d -- Case No. 15-50205 (9th Cir. 2017), the Court vacated the defendant's sentence because the district court failed 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 that escalated the statutory maximum sentence from two
years to twenty.
In this 1326 case, the jury was asked to return a special verdict on the defendant's removal date (which as noted impacts the statutory maximum). The jury sent a note asking, “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, without notifying or consulting counsel, 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.”
A few minutes later, the jury found the defendant guilty and answered the special verdict question in the affirmative. The district court convened the parties, informed them that it had received a note from
the jury. The district court then 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.”
On appeal, the Ninth Circuit found that the district court's action violated Rule 43 and the Sixth Amendment. It also found the error was not harmless beyond a reasonable doubt.
The decision is worth a read. It is also an important reminder that we should always ask the court to instruct the jury that it must apply the beyond a reasonable doubt standard to special verdict questions that impact the minimum or maximum sentence.
