US v. Martinez, No. 15-50205 (3-10-17)(Wardlaw w/Reinhardt & Whyte). The 9th held that the district court erred by responding to a jury note without consulting counsel in violation of Fed. R. Crim. P. 43(a) and the sixth amendment. The jury was asked for a special finding in a 1326 reentry case. The special finding dealt with the date of removal (raising the stat max from 2 years to 20). The jury asked about the date's significance, and the court, without consulting counsel, responded to the note by stating that it was a matter for the court to consider. This response could not be harmless. The immigration file had numerous mistakes, and the defense was that the government could not prove removal, with the mistakes, beyond a reasonable doubt. The court response relieved the jury of finding the date beyond a reasonable doubt. The sentence is vacated and remanded. On remand, the government can retry the removal date issue or the defendant can be sentenced under the two year max.
Congrats to Doug Keller of the Federal Defenders of San Diego.
The decision is here: