Sunday, March 12, 2017

Case o' The Week: 1 (Jury Note) + 0 (Defense counsel) = 1 (Remand): Bladimir Martinez, Jury Notes, and Structural Error

The Honorable Judge Kim Wardlaw

"You have a problem with that?"
(Because, it turns out, the Ninth does as well). 
 United States v. Bladimir Martinez, 2017 U.S. App. LEXIS 4270 (9th Cir. Mar. 10, 2017), decision available here.

Players: Decision by Judge Wardlaw, joined by Judges Reinhardt and ND Cal District Judge Ronald Whyte. 
 Big win for AFD Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Martinez was found just north of the border. Id. at *3-4. He was charged with 8 USC § 1326. Id. at *3. Specifically, he was charged with having been removed “subsequent to December 3, 2010,” the date of an agg felony conviction. Id.
  The jury was not instructed that it had to make a finding about the removal date, or that this removal date had to be proved beyond a reasonable doubt. Id. at *5.
  The jury wrote a note, asking about a portion on the verdict form that listed the December date. Id. at *5-*6. Without telling counsel, the judge wrote back, “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.” Id. at *6.
  Eight minutes later the jury reported it had reached a (guilty) verdict. Id.
  When counsel returned, the court revealed the earlier question and explained, “I didn’t think it was important to bring [counsel] back in to answer this question, so I answered it myself . . . . So you know, if you have a problem with that, I guess you’ll take it up with the Court of Appeals.” Id. at *6.
  “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.” Id.

Issue(s): “[W]hether the judge's ex parte response to a mid-deliberations jury note about the significance of an Apprendi sentencing factor was structural in nature[?]” Id. at *17-*18.

Held: “We need not decide in this case . . . because we find that the constitutional error was not harmless beyond a reasonable doubt . . . .” Id.
   “The court’s failure to consult Martinez’s counsel before responding to the jury note violated [Fed. R. Crim. Proc. 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).” Id. at *1.
  “[T]he district court judge expressed views . . . that reasonably could lead the defendant to question the presence of bias. Because we do not think that the district court judge would be able to put these views out of his mind and in order to preserve the appearance of justice, upon remand the Clerk . . . shall reassign this case to a different district court judge . . . .” Id. at *28.

Of Note: The Court reversed after a jury trial, so why wasn’t the conviction knocked, instead of the sentence?
  The timing of the removal escalated the exposure on this case from two, to twenty, years. Id. *3. Martinez was found guilty of the offense – being found in the U.S. after removal – but because the jury question bore on this timing issue (removal after agg felony?) this was Apprendi sentencing error. The case was accordingly remanded for a sentencing finding by a jury, or (preferably!), imposition of the two-year max sentence. Id. at *27 & n.7.

How to Use: The hairy issue at the heart of Martinez was Cronic structural error. Id. at *14. Judge Wardlaw carefully works through this analysis, concluding that the Ninth “seems to have muddled the analysis of which trial stages are ‘critical stages’ so as to trigger Sixth Amendment rights and which are ‘critical stages’ so that the absence of counsel during the stage is structural error.” Id. at *14 & n.4.
  Though the Court dodges the ultimate issue here, Martinez is nonetheless a useful decision to at least identify the competing authority on structural error.                                              
For Further Reading: The Brave Little Tailor has nothing on POTUS: last week, President Trump fell 46 in one blow.
 For a list of the U.S. Attorneys asked to resign by the new Administration, with separate links to reporting articles, see Wikipedia entry here

Image of the Honorable Judge Kim Wardlaw from

Image of Mickey Mouse, as the Brave Little Tailor, from 

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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Friday, March 24, 2017 5:39:00 AM  

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