F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

B L A D I M I R M A

R T I N E Z , Defendant-Appellant

. No. 15-50205

D.C. No. 3:14-cr-00117-B EN-1

OPI N I ON

A ppeal from the United States District Court for the Southern District of California Rog er T. B enitez , District J u dg e, Presiding

Arg ued and Submitted Aug ust 1, 2016 Pasadena, California

F iled March 10, 2017

B efore: Stephen Reinhardt and Kim McL ane W ardlaw, Circuit J udg es, and Ronald M. W hy te, * District J udg e

. Opinion by

J udg e W ardlaw

* T h e H o n orab le Ro n ald M. W h y te, Un ited States District J u dg e f or th e No rth ern District o f

Calif o rn ia, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. M A R T I N E Z 2

SUMMARY * *

Crim inal Law

The panel vacated a sentence for being a removed alien found in the United States, struck a special finding by the jury that escalated the statutory max imum sentence from two
y ears to twenty , and remanded.

The panel held that the district judg e’s failure to no t ify and consult with defense counsel b efore responding to a jury question seeking g uidanc e o n the sig nificance of the special findi n g as to the defendant’s removal date violated F ed. R. Crim. P. 43(a) and the d efendant’s Six th Amendment rig ht to counsel.

The p anel held that the judg e’s error was not h a r m l ess bey ond a reasonable doubt because much of the g overnment’s documentary evidence concerning the defendant’s prior removal contained d emonstrable errors, and because defense counsel, h ad she been consulted, would have specificall y requested that the district court i n s t r uct the jury that the
g over n ment was required to prove the removal date bey ond a reasonable doubt.

The p anel inst

ructed that the g overnment, on r emand, may elect to r etry the rem o v a l d a t e before a sentencing jury o r request that the district court resentence the d efendant under the two-y ear sentencing provision in 8 U.S.C. § 1326(a). The

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M A R T I N E Z 3

panel instructed that the case be rea s s i gn e d to a different district judg e.

COUNSEL

Doug K eller ( arg ued), F ederal Defenders of San Dieg o, I n c., San Dieg o, California for Defendant-Appellant.

Mark R. Rehe (arg

ue d )

, Assistant United States Attorney
, L aura E. Duffy

, United States Attorney
, and Peter Ko, Assistant U n i t e d States Attorney
, Chief, Appellate Section, C r i m i n a l D i v i s i o n , S a n D i e g o , C a l i f o r n i a , f o r Plaintiff-Appellee.

OP INION

W A RDL AW , Circuit J udg e:

B ladimir Martinez appeals his conviction by jury trial a nd his sentence f

or being a removed alien found in the United States in violation of 8 U.S.C. § 1326. D uring its deliberations, the jury sent a note to the judg e seeking
g uidance on the sig nificance of a s p e c i al finding as to Martinez ’s r emoval date. T h e special fi n d i ng h ad sig nificance only with r espect to the sentence imposed by the jury

. Without r esponding in open court and without notify ing

or consulting counsel, the judg e penned his own response on the note and returned it to the jury

. B etween the time the jury

se n t i t s note and the return of the verdict, an eig ht-minute time p e riod elapsed. The jury found Martinez g uilty of illeg al reentry and specially and separately found that he was “removed subsequent to Decemb e r 3, 2010,” therebyU N I T E D S T A T E S V

. M A R T I N E Z 4

escalating the statutory max imum sentence from two y ears to t w e nty

. T he court’s failure to consult Martinez ’s couns el before responding to the jury n o te violated F ederal Rule o f Criminal Pr o cedure 43 ( “Rule 43”) and the Six th Amend m e n t

. B ecause much of the g overnment’s d ocumentary e vidence concerning Martinez ’ s prior removal contained demonstrable errors, and because defense counsel, had she been c onsulted, wou l d h a ve specifically requested that the trial court instruct t h e j u r y that the g overnment was required to prove the removal date b e y o n d a reasonable doubt, the district judg e’s error was constitutionally harmful. W e t herefore vacate Martinez ’s sentence and strike t h e special finding

. On r e m an d

, the g overnment may elect to retry the re m o v al date issue before a sentencing jury

, or it
may request that the d istrict c ourt r esentence Martinez under the two-y ear sentencing

provision in 8 U.S.C. § 1326(a).

I.

I n D e c ember 2013, B order Patrol ag ents apprehended Martinez while he was attempting to hide himself in an area just north o f the United States–Mex ico border. The
g overnment charg ed Martinez by information with one count of being a “removed a lien found in the Unit ed States,” in violation of 8 U.S.C. § 1 3 2 6. The information also charg ed that Martinez h ad b e e n removed “ subsequent to December 3, 2010,” the date he was convicted f o r felony commission of a lewd or lascivi o u s a c t on a child under the ag e of 14 under California Penal Code § 288(b)(1).

The central issue at tr i a l w a s alienag e. I n a one-day

e videntiary phase, the g overnment adduced evidence t h at Ma r t i n e z was removed from the United States in 2012 a nd
reenter ed in 2 013 as a noncitiz e n without permission toU N I T E D S T A T E S V

. M A R T I N E Z 5

reenter. Defense co u n s el did not call any witnesses, but challeng ed the accuracy o f the prosecution’s immig r ation documents which h ad been created by g overnment ag ents during Martinez ’s prior r emoval and his 2013 a pprehension. The documents indicated that Martinez had told immig r ation officers he was not a U.S. citiz en but inconsistently stated he was a citiz en of Guatemala and Mex ico.

On the second day

, the court g a ve the jury its initial instructions, which addressed the one charg e, i ts elements, the
g o v e rnment’s burden of proof bey ond a reasonable doubt, and the requirement o f unanimity

. These instructions failed
to mention that the jury would b e asked to make a finding concerning Martinez ’s removal dat e o r that the g overnment had to prove the removal date bey ond a reasonable doubt.

F o l l owing closing arg uments, the court delivered i t s “ f i n a l instructions.” The court also reviewed the verdict form with the jury

. The judg e identified the two questions on the form: whether o r not Martinez was g uilty of being a removed alien found in the United States, and, if s o , whether Martinez h ad been “removed from the United States after Decemb e r 3 rd, 2010.” The judg e did not tell the jury that the g overnment had to prove that Martinez was removed after December 3, 2010 bey o nd a r e a s o nable doubt, but did tell the jury that to respond y es to the question it m u s t u n animously ag ree that Martinez had b een removed after t h a t d ate. T he judg e also told the jury that if it needed to c o m municate to the c ourt, it could do so b y w r i t t en n o te, b u t that any response mig ht be delay ed b ecause the c o urt would “consult with the l a w y ers before answering

it.”

At 10:40 a.m., the jury sent a note to the court that asked, “On the jury form, what sig nificance is the date of DecemberU N I T E D S T A T E S V

. M A R T I N E Z 6

3rd, 20 10? (on the portion that asks if he was deported subsequent to the date of 12/3/201 0 )

. ” The court wrote its
response directly on the jury note, sta t i n g, “ I t is a matter for the court to consider, not the jury

. T he jury has to consider whether the d efendant was deported or removed a fter that date.”

Eig ht minutes after it had sent its first note, at 1 0:48 a.m., the jury sent a second note announcin g that it had reached a verdict. The judg e convened c ounsel, but before bring ing in the jur y , i n f

o r med counsel that he had r eceived a note from the jury

. He stated, “ I didn’t think it was important to bring [ counsel] b ack in to answer this question, so I answered it
my self.” The judg e also told counsel, “So y ou k now, if y ou have a problem with that, I g u ess y ou’ll take it up with the Court of Appeals.” The jury found Martinez g uilty a nd that he was removed afte r December 3
, 2010. T he court sentenced Martinez to 57 months in p rison, with two y ears o f

s upervised release. D efense counsel apparently had a problem with the court’s d ecision not to consult with counsel before answering the jury ’s q uestion, and this is the resulting appeal.

II.

W e have jurisdiction under 28 U .S.C. § 1291. W e r eview M a rtinez ’s Rule 43 a

nd Six th Amendment claims de n o v o

. See United States v. Danielson

, 325 F .3d 1054, 1066 ( 9th Cir. 2003); see also United States v. R osales-Rodriguez

, 289 F .3d 1106, 1109–11 (9th Cir. 2002). 1

1 T h e g o v ern m en t arg u es th a t p lain

- erro r rev iew ap p lies b ecau s e Martin ez n ev er o b

j ected belo w

. Co u

n s el f o r Martin ez, h o w ev er, did n o t h av e t h e o p p o rtu n ity to ob

j ect bef ore th e co u rt an sw ered t h e j u ry ’ sU N I T E D S T A T E S V

. M A R T I N E Z 7

III.

The district court violated F ederal Rule of Criminal Procedure 43(a) and Ma r t i n ez ’s Six th Amendment rig ht to counsel by f

ailing to no t i f

y and consult with his counsel before responding

to the jury ’s question.

A. Rule 43(

a)

Rule 43 provides a d efenda n t a n ex pansive rig h t to be present throug hout his trial. Thoug h that rig ht is also
g uaranteed by the Constitution, Rule 4 3 codified a c ommonlaw rig ht to be present that is “broader than the constitutional rig ht alone.” 3B Charles Alan W rig h t et al., Federal Practice and Procedure § 721 (4th ed. 2016). Rule 43 outlines when the defendant’s presence is required (g enerally every critical stag e of the trial), when it is not, and when presence may be waived.

I t is well established that a district court’s failure to notify defense counsel about a jury note and to gi v e counsel the opportunity to be heard before the court responds violates Rule 43. I n Rogers v. United States
, 422 U.S. 35 (1975), the deliberating jury s ent a n ote to the court inquiring “whether

q u estio n

. Mo reo v er, th e co u rt t o ld co u n sel th at if it h ad a p r o b l e m w i th th e co u rt’ s co m

m u n icatio n w ith th e j u ry , “ [T ]h at is th e w ay it g o es,” an d th at Martin e z co u ld “ tak e it u p w ith th e C o u rt of A

p p eals.” Ob v io u sly

, o b j ectin g af ter th e j u ry ren d ered its v e r d ict w ith th e in f lu en ce o f th e

co u rt’ s u n ilatera l r e sp on se w o u ld h av e b een f u tile. “ A f

ailu re to raise a f u tile o b j ectio n d o es n o t w aiv e th e o b j ectio n .” Un ited Sta tes v. Kyle

, 7 3 4 F.3 d 9 56
, 9 6 2 n .3 (9 th Cir. 2 0 1 3 ); cf. Un ited S ta tes v. Ba rra g an -Devis
, 1 3 3 F.3 d 1 2 8 7 , 1 2 8 9 (9 th Cir. 1 9 9 8 ) (rev iew in g d e n o v o a claim sim i lar
to Martin ez’ s w

h ere d ef en se co u n sel d id n o t learn ab o u t th e j u ry n o te u n t i l af ter th e v erd ict an d d id n o t o b j ect).U N I T E D S T A T E S V

. M A R T I N E Z 8

the court would acce p t the Verdict—Guilty as charg ed with

ex treme mercy o f the Court.” Id. a t 36 (internal quotation marks o mitted). 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 w as in the affirmative.” Id. (internal quotation marks omitted). F ive minutes la t er, the jury returned a g uilty verdict recomm e n d i ng the court’s
mercy

. Id. at 37. The Supreme Court held t h a t the district court’s ex parte response to the jury ’ s “ r e q uest for f urther i n s tructions” violated Rule 4 3, which required that t h e messag e be “answered in open court, ” a n d that defense counsel be “ g iven an opportunity to be heard before the trial judg e responded.” Id. at 39.

W h ile the Rogers Court n oted that “a violation of Rule 43
may in some circumstances b e h armless error,” the Court determined that both “the nature of the information convey ed
to the jury

, in addition to the manner i n w h i c h it was

c o n v ey ed,” rendered it p rejudicial. Id. at 40. Specifically

, t h e district court should have, “[ a] t the very least,” told the jury that its recommendation for merc y was not “binding in
any w ay .” Id. The Court also n o ted that, after deliberating for almost two hours, the jury returned its verdict f i ve minutes after learning that it could recommend mercy , which strong ly sugge sted that the district court’s response induced unanimity

. Id.

The Rogers Court relied on two earlier decisions in which the Court had found error u nder simila r f a c ts, b ut b y reasoning from the principles a ttendant to the orderly conduct of a jury trial, including “the rig h t to be heard.” The first decision, Fillippon v

. Albion Vein Slate Co.
, 250 U

. S

. 76 (1919), involved a civil suit for neg lig ence. Id. a t 77. T h ere, during deliberations, the jury sent a note to the district courtU N I T E D S T A T E S V

. M A R T I N E Z 9

a s k i n g w hether the plaintiff could be found contributoril y neg lig ent, and the c o urt replied in writing with supplementary instructions. Id. at 80. The court did so in the absence of the
pa rt i e s and their counsel, and without calling the jury into
open court. Id. The Court wrote that the supplement ary instructions “oug ht to [ have] be[ en] g iven either in the
presence of counsel or after notice and an oppo rtunity to be present.” Id. at 81. I t ex plained that “the orderly conduct o f

a trial by jury

, essentia l t o the proper protection of the rig ht
to be heard, entitles the parties . . . to be present in p erson o r by c o u nsel at all proceeding s from the time the jury is impanel e d u n t i l it is discharg ed.” Id. The Court thus

r e v e rsed the judg ment and remanded the case to the district court, noting tha t “erroneous ruling s are p resumptively injurious, e specially those embodied in instructions to the jury .” Id. at 82.

The Rogers Court also relied on Shields v. United States
, 273 U.S. 583 (1927), which involved a criminal prosecution. I n that case, the jury sent a note to the district court d uring deliberations stating that it had reached a verdict f o r five o f the eig ht defendants. Id. at 5 8 4. The court replied in writing that the jury must reach a ver d i c t as to all of the d e fendants. Id. Neither the defendants nor their counsel were advised o f the communications, nor were the communications made in
open co u rt. Id. at 585. T he Supreme Court remanded the

case fo r a n e w trial, ex plaining that its holding followed a fortiori from the rule laid out in F illippon

, which re quired, “especially in a criminal c a se,” that jury instructions be g iven in the p resence of c ounsel or after notice and an opportunity to be present. Id. at 588–89.

I n our circuit, w e have held that a court violates Rule 43
not only when it f

ails to consult counsel about a jury note, butU N I T E D S T A T E S V

. M A R T I N E Z 10

also when it does so inadequately

. I n U nited States v. Artus
, 591 F .2d 526 (9th Cir. 1979), the jury sent a note to the court asking about the jury instructions a nd the g overnment’s closing arg ument, in w hich the prosecutor had intr o duced facts not in e vidence. Id. at 527. The c ourt informed counsel that it would speak to the jury foreperson. Id. The court did
so, answering at leng th several factual inquiries from the foreperson about t h e c a s e. I d. at 528. W e held that, even thoug h the court informed counsel that it would a n s w er the foreperson’s questions b eforehand, the court violated Rule 43 because it “did not adequat e l y consult with counsel prior to g iving the supplemental instructions.” Id. W e reasoned that “[ t] he interchang e between jury and judg e shoul d be surrounded with formalit ies so that the Defendant has an adequate opportuni t y t o evaluate the propriety of the proposed response or instruction, formulat e objections, o r sug g est a different r esponse.” Id. O n the basis of the court’s violation of Rule 43 a n d the g o v ernment’s improper
statements during closi n g arg ument, we reversed the conviction. Id. at 529.

B. Sixth Amendment

W e have held that the Six th Amendment, in addi t ion to Rule 43, r equires a c o u r t to c onsult defense counsel w hen it receives an inquiry from the jur y

. 2 I n United States v

.

2 Martin ez b ases h is co n stitu t io n al claim o n th e Six th A m en d m en t. W e h av e s o m etim es situ ated sim ilar claim s u n d er th e Six th A m en d m en t’ s rig h t to co u n sel, see Mu sla d in v. La ma r q u e , 5 5 5 F.3 d 8 3 0 , 8 36 (9 th Cir. 2 0 0 9 ), an d at o th er tim es th e rig h t to c o n f ro n t w itn esses, see Ro sa l esRo d rig u ez , 2 8 9 F.3 d at 1 10 9 –1 0 . T h e sco p e o f a d ef en d an t ’ s rig h t

to b e

n o tif ied an d h eard reg ard i n g a j u ry n o te h as n o t v aried

, h o w ev er, b ased on th e sp ecif ic clau se w e h av e in v o k ed

. Fu rth erm o re, w e h av e h eld th at Fif thU N I T E D S T A T E S V

. M A R T I N E Z 11

Barragan-Devis
, a sing le juror sent a note to the court during delibe ra t ions asking about the evidence showing the defendant’s intent to possess and distribute heroin. 133 F .3d
at 1288–89. W ithout c onsult i n g counsel, the court c hose to not respond. Id. at 1289. W e h e l d t h a t the court’s decision violated the defendant’s Six th Amendment “r i g ht to be represented by his attorney at

. . . a conference” during which defendant’s counsel could h ave a rg ued in favor of a reply

. Id.

W e affirmed the c onviction, however, apply ing Chapman

v. California

, 386 U.S. 18 (1967), and f inding th a t the error

was harmless bey on d a r easonable doubt. Barragan-Devis
, 133 F .3d at 1289–90. To determine whether the error was harmless, we considered the three factors identified in United States v. Frazin :

Fi rst, we consider the probable effect of t h e messag e a c tually sent, second, the likelihood that the court wo u ld have sent a different
messag e had it consult e d with appellants beforehand and third, whether a n y chang es in the messag e that a

ppellants mig ht have obtai n e d would h ave affected the verdict in
any way

.

Id. at 1289 (quoting F

razin
, 780 F .2d at 1 470–71). W e concluded that the error was h armless because t h e court’s silence likely did not influence the jury

, t h e j u ry previously received the relevant jury instructions reg ar ding intent, a nd the note “d[ id] not reveal any leg al disorientation on the part

A m en d m en t d u e pro cess pro v id es a sim ilar g u aran tee. S ee U n ited S ta tes v. Fra zin , 7 8 0 F.2 d 1 4 6 1 , 1 4 6 9 (9 th Cir. 1 9 8 6 ).U N I T E D S T A T E S V

. M A R T I N E Z 12

of the juror or the jury ” but rather “reveal[ ed] some d ifficulty in assessing the probative value of the e v idence.” Id. at 1290.

I n U nited States v. R o s a l e s-Rodriguez

, we e x tended this S i x th Amendment rig ht to require trial courts to cons u l t counsel about the court’s c o mmunications to a delibe r a t i ng jury

, even when those communications are not initiated by the jury

. T h e r e , the court sent an unsolicited note to the jury in the absence o f c o u nsel and the p arties. Rosales-Rodriguez

, 289 F .3d at 1109. The not e i n f ormed the jury that if deliberations were n ot concluded by F riday at 4:30 p.m., an alternate juror would be substituted for a d e l i b erating juror who had a conflict th e following week, and deliberations would have to beg in anew. Id. W e concluded t hat the n ote

was a supplementary instruction that the court should have reviewed with counsel, because counsel mig h t have objected
to the instruction or soug ht alternative lang uag e. Id. at 1110. W e then d etermined that the failure to g ive counsel the

o p p o r tunity to be heard was both a constitutional a nd statutory violation. 3 Id. at 1 110–11

. Nevertheless, the violation was harmless bey ond a reasonable do u b t b ecause the jury reached its verdict b y F riday at 11:00 a.m., sug g esting that the jury ha d no difficulty reaching a verdict, and would h ave returned it w ell before 4:30 p.m. reg ardless of the note. Id. at 1111.

3 We n o ted th at “ [t]h e co n stitu tio n a l r i g h t , w

h ich is th e rig h t to b e p resen t at ev ery ‘ critical stag e’ o f th e trial, is b ased in th e Fif th A m en d m en t D u e P ro cess Clau se an d th e Six t h A m e nd m en t R ig h t to Co n f ro n tatio n Clau se.” Id

. at 1 10 9

.U N I T E D S T A T E S V

. M A R T I N E Z 13

IV.

The district court violated Martinez ’ s constitutional a nd statutory ri gh t s by failing to notify counsel of the jury n ote and to g ive c ounsel the o pportunity to be heard durin g the preparation of the response.

Martinez arg ues that this er r or was structural, requiring automatic reversal under United S tates v. Cronic
, 4 6 6 U.S. 648 (1984). H e c i tes Musladin v. Lamarque
, 555 F .3d 830 (9th Cir. 2009), and U

nited States v. Mohsen

, 587 F .3d 1028 (9th Ci r

. 2009), two r ecent c ases in which w e found the f a i l ure to consult counsel before r esponding to a jury n ote constitutional error, but did not h o l d that the error was structural. I ndeed, w e h ave never held tha t s uch error is structural error under Cronic

.

I n Musladin

, a state capital case o n hab e a s review, we considered w hether clearly established f e deral law e x isted requiring consultation w ith counsel whe n t h e court receives

a mid-deliberations inquiry from the jury

. 555 F .3d at 833–35. To d etermine w hether the mid-deliberations communication constituted a Cronic “critical stag e ” of trial,

we considered whether it wa s a s tag e that “held sig nificant

c o n s e q u e n c e s f

o r t h e a c c u s e d

. ” 4 I d

. a t 8 3 9

4 Ou r circu i t seem s to h av e m u d d led th e an aly sis o f w

h ich trial stag es

are “ critical stag es” so as to trig g er Six th A m en d m en t rig h ts an d w h ich are

“ critical stag es” so t h a t t h e ab sen ce o f co u n sel d u rin g th e stag e is
stru ctu ral erro r.

W e h av e articu lated a th ree- f acto r test f

o r d eterm i n in g w

h eth er a stag e o f a crim in al p ro ceed in g is a “ critical stag e” d u rin g w h ich th e d ef en d an t h as a Six t h A m en d m en t rig h t t o co u n sel: w h eth er d u rin g th at stag e, “ (1 ) ‘ f

ailu re to p u rsu e strateg ies o r rem ed i es resu lts in a lo s s ofU N I T E D S T A T E S V

. M A R T I N E Z 14

sig n if ican t ri g h t s , ’ (2 ) ‘ sk illed co u n sel w o u ld be u sef u l in h elp i n g th e

accu sed u n d erstan d th e leg al co n f ro n t atio n ,’ an d (3 ) ‘ th e p ro ceed in g tests th e m erits o f th e accu sed ’ s case.’ ” Ho vey v. Ayers
, 4 5 8 F.3 d 8 9 2
, 9 01 (9 th Cir. 2 0 06 ) ( q u o t i n g Men efield v. Bo rg , 8 8 1 F.2 d 6 96
, 6 9 8

– 9 9 (9 th Cir.1 9 8 9 )).

T h e Su p rem e Co u rt h as h eld th at a “ critical stag e” u n d er Cro n i c i s “ a step o f a crim in al p ro ceed in g , su ch as arraig n m en t, th at h [o ld s] sig n if

ican t

co n seq u en ces f

o r th e accu sed .” Bell

, 5 3 5 U.S. at 6 9 6

. In at least o n e case,

w e m eld ed th e tw o “ critical stag e” d eterm in atio n s to g eth er, su g g estin g th at a Six t h A m en d m en t v io latio n in v olv in g t h e ab sen ce o f co u n s el alw ay s req u ires au to m atic r e ve r s a l

. S ee Un ited S ta tes v. Ha m ilto n , 3 9 1 F.3 d 1 0 6 6
, 1 0 7 0 (9 th Cir. 2 0 0 4 ). In s ev eral o t h e r cases, w e h av e reco g n ized th at th e C ro n ic “ critical stag e” d eterm in atio n i s sep arate b u t n ev erth eless

u sed th e Ho vey test f

o r d eterm in in g w

h eth er a stag e im

p licates th e Six th A m en d m en t. S

ee, e.g

. , McNea l v. Ad

a m s , 6 2 3 F.3 d 1 2 8 3
, 1 2 89 (9 th Cir. 2 0 1 0 ); Un ited Sta tes v. Ben fo rd

, 5 7 4 F.3 d 1 2 2 8, 1 2 3 2

– 3 3 (9 th Cir. 2 0 0 9 ). In McNea l v. Ad

a ms , f o r ex am p l e, w e stated th at w e w ere “ issu [in g ] th [e]

o p in i o n t o clarif

y th e d if f eren ce b etw een a stag e at w h ich th e d ef

en d an t h as a rig h t to co u n sel, s ee Memp a v. Rh a y , 3 8 9 U.S. 1 2 8
, 1 3 4 (1 96 7 ), an d

a critical stag e req u irin g p er s e rev ersal if co u n sel is ab sen t, s e e U n ited S ta tes v. Cro n ic , 4 6 6 U.S. 6 4 8 , 6 5 8

- 5 9 (1 9 8 4 ).” 6 2 3 F.3 d at 1 2 8 5 . T h e

o p in io n in McNea l n ev erth eless ap p lied th e test f ro m Ho vey to d eterm in e

w h eth er th e h earin g at i ssu e w as a Cro n ic “ critical stag e.” J u d g e B erzo n

w ro te sep arately

to clarif y th e d istin ctio n :

I b eliev e th e m aj o rity co n f u ses th e “ critical stag e”
stan d ard ap p licab le to Un ited S ta tes v. Cro n ic
, 4 6 6 U .S. 6 4 8 (1 9 84 ) w i th th e sep arate “ critical stag e” stan d ard
ap plicab le to all claim s u n d er th e Six th A m en d m en t. P u t sim p ly

, th e m aj o rity erro n eo u sly t reats th e tw o as th e sam e, w

h en th ey are n o t. T h e stan d ard ap p licab le in th e fi r st in s tan ce is “ an y stag e o f a crim in al
p ro ceed in g w

h ere su bstan tial rig h ts o f a crim in al

a c c u sed m ay b e af

f ected ,” Ho vey v. Ayers
, 4 5 8 F.3 d 8 9 2
, 9 0 1 ( 9 th Cir.2 0 0 6 ) (citatio n an d q u o tatio n m ark s

o m itted ), w

h ile th at ap p licab le i n th e seco n d in stan ce is

w h eth er th e den ial o f co u n sel at a g iv en stag e h o l d s

su ch “ sig n if

ican t co n seq u e n ces” f

o r th e o v erallU N I T E D S T A T E S V

. M A R T I N E Z 15

(quoting Bell v. Cone
, 535 U.S. 685, 695–96). W e concluded that it d id, e x p laining that the “‘s tag e’ at which the deprivation of counsel may be c r i t ical should be u nderstood

as the formulation of the response to a jury ’s request for additional instructions, rather than its delivery .” Id. at 842. F inding that this principle w as not clearly established federal law, however, we held that because the court simply referred the jury to the prior instructions, instructions that defense counsel h a d p articipated in formulating

, it would not be unreasonable to conclude that th i s w a s not a Cronic critical stag e. Id. at 842–43. I n so s t at ing

, and in a series o f footnotes, we disting u ished a mong the ty pes o f jury inquiries that mig ht or mig ht not trig g e r a critical stag e, such a s rereading the prior instructions, see Hudson v

. Jones
, 351 F .3d 212, 217 (6th Cir

. 2 003), rereading testimony

, see United States v. Toliver

, 3 30 F .3d 6 07, 614–15 ( 3d Cir. 2003), or providing supplemental instructions, see French v

. Jones
, 332 F .3d 430, 4 3 8 (6th Cir. 2003), sug g esting a facts p e c i fic inquiry somewhat at odds with the c oncept o f structural error. 5 Musladin , 555 F

. 3d at 842.

p ro ceed in g th at a p rej u d i c e i n q u iry is im p ractical, see Mu sla d in v. La ma rq ue , 5 5 5 F.3 d 8 3 0
, 8 3 9

- 4 0 (9 th Cir. 2 0 0 9 ).

McNea l

, 6 2 3 F.3 d at 12 8 9 –9 0 (B erzo n , J
., co n c u r r in g in th e j u d g m en t) (citatio n s o m itted ).

5 In M u sla d in
, w e ex plain ed h o w o th er circu its h av e treated a co u rt’ s

m id

- d elib eratio n s co m

m u n icatio n s w ith t h e j u ry

. In th e F irst an d Six th Circu its, t h e deliv ery o f su

p p lem en tal j u

ry in stru ctio n s, b u t n o t p rev io u sly read an d ag reed

- to in stru ctio ns , i s a Cro n ic critical stag e. See Hu d so n , 3 5 1 F.3 d at 21 7 ; Fren ch

, 3 3 2 F.3 d at 4 3 8 ; Cu rtis v. Du va l

, 12 4 F.3 d 1
, 4

– 5 (1 st Cir. 1 99 7 )). T h e Fif

th C ircu it h as h eld th at a co u rt’ s f ailu re to co n su l t

co u n sel w

h en it ref ers t h e j u ry to p rev io u s in stru ctio n s d o es n o t req u ire

au to m atic rev ersal. U

n ited S ta tes v. Hillsma n , 4 8 0 F.3 d 3 3 3
, 3 36 (5 th Cir.U N I T E D S T A T E S V

. M A R T I N E Z 16

I n M ohsen

, after con c l u ding the court erred by failing to consult the parties or counsel before responding to the jury ’s request to see the indictment with the “specific charg es,” we d e t ermined that the e rror was harmless b ey ond a reason a b l e d o u bt. 587 F .3d at 1031. W e rejected Mohsen’s arg um e n t that answering a jury ’ s q u estion without consulting counsel is alway s structural e rror requiring reversal, s tating that in Musladin “[ w ] e n ever sug g ested that all e rrors reg arding jury communications during deliberations were subje c t to automatic r eversal.” Id. a t 1032. We disting uished the j u r y request in Musladin from that in Mohsen b ecause “[ u ] nlike the c ommunication i n M usladin

, the jury note [in Mohsen ]

w a s not a question about the law g overning the jury ’ s deliberations.” I

d. Nor did the n o t e in Mohsen make any “substantive inquiry about the fac t s o r the law,” disting uishing it from jury notes in other previous cases. Id. (citing Frantz v

. Hazey
, 533 F

. 3d 724, 741–42 ( 9th Cir. 2 008) (en banc)). W e then c ited three cases in which we had f ound

a court’s ex parte response to the jury to be harmless error: Rosales-Rodriguez

, w hich involved a court’s uns olicited supplementary instruction reg arding the substitution of an alternate juror, 289 F .3d at 1110 ; Barragan-Devis
, in which the court chose not to res p o n d t o a note from a sing le juror, 133 F .3d at 1289; and Frazin
, in w h i c h the court responded
to a note th a t the jury was deadlocked with an instruction to continue deliberations, 780 F .2d at 1469. Mohsen

, 587 F .3d
at 1032

. Thus, our previous cases sug g est that the question whether the failure to c o nsult counsel about a middeliberations jury note is structural e rror t u rns on both the

2 0 0 7 ). A n d th e T h ird Circu it h as h eld th at p ro v id in g reco rd testim o n y

w ith o u t co n su l tin g co u n se l i s no t stru ctu ral erro r. To liver

, 3 3 0 F .3 d at 6 1 4

– 1 5

.U N I T E D S T A T E S V

. M A R T I N E Z 17

nature o f the jury ’s request and the need for counsel’s participation in formulating a response.

Here, the jury was req u i r ed to find bey ond a reasonable doubt that Martinez was removed after December 3, 2010, the date he was convicted of the predicate ag g ravated felony . I f the jury so concluded, the statutory max imum sentence for his illeg a l r e e n try conviction would jump from two to twenty
y ears under 8 U.S.C. § 1 326(b)(2). F actual deter m i n ations that “increase[ ] the penalty for a crime bey ond the prescribed statutory max imum must b e subm i tted to a jury

, and proved bey o n d a reasonable doubt.” 6 Apprendi v. New Jersey
, 530 U.S. 466, 490 (2000); see also U n i t ed States v. GuerreroJasso
, 752 F .3d 1186, 1190 (9th Cir. 2014) (“As a pplied
to § 1326, the Apprendi principle requires t h a t t o trig g er § 1 3 2 6 ( b ) ’ s t w e n t y

- y e a r

- m a x i m u m s e n t e n c e , f a c t s establishing that the removal occurred af t e r a n ag g ravated felony conviction must be admitted by the defendant o r proved to a jury .”).

6 T h e j u ry n eed o n ly an sw er th e q u estio n w h eth er th e rem o v al

o ccu rred af

t er th e d ate o f co n

v i ctio n

. U n d er Almen d

arez-To r res v. Un ited S ta tes , 5 2 3 U.S. 2 24 (1 9 9 8 ), th e j u ry w as n o t req u i red to f in d th at Martin ez in f

act su f f ered t h e co n v ictio n

. Id

. at 2 2 6 ; see also Un ited S ta tes

v. Pa ch eco -Zep ed

a , 2 34 F.3 d 4 1 1
, 4 1 5 (9 th C ir. 2 0 0 0 ) (h o ld in g t h at, u n der Almen d a r ez-To rres , th e g o v ern m en t w as n o t r e q u ired to “ in clu d e [th e d ef en d an t ’ s] p rio r ag g rav ated f elo n y co n v ictio n s in th e in d ictm en t, su b m i t th em to a j u ry , o r p ro v e th em bey on d a reaso n ab le d o u b t” f o r a 8 U.S.C. § 1 3 2 6 (b )(2 ) sen ten ce en h an cem en t). T h eref o re, at trial, th e g o v ern m en t d id n o t presen t ev id en ce ab o u t M a r tin ez’ s p rev io u s co n v ictio n , an d th e j u ry w as th u s u n aw are d u rin g delib eratio n s of w

h a t D e c e m

b er 3
, 2 0 1 0
rep resen ted

. Martin ez co n ten d s, “ f o r p reserv atio n p u rp o s es,” t h at th e Six th A m en d m en t req u ired th e g o v ern m en t to p ro v e b ey o n d a reaso n ab le d o u b t to th e j u ry th e f

act o f h is co n v ictio n

. He reco g n izes, h ow ev er, th at th e Su prem e Co u rt p rev io u s ly rej ected t h a t arg u m en t in Almen d a rezTo rres . W e d o so as w ell.U N I T E D S T A T E S V

. M A R T I N E Z 18

W e n e e d not decide in this case, however, whether t h e j udg e’s e x parte response to a mid-deliberations jury no t e about the sig nificance o f an Ap p r e n di sentencing factor was st r u c t u r al in nature because we find that the constitutional
error was not harmless bey ond a reasonable doubt under the three-part Frazin test. Even if we were to determine that the judg e’s formulation of his response to this jur y note, which dealt o nly with sentencing

, w as a “ critical sentencing stag e,” the result would be the same: we must vacate Ma r t i n e z ’s

s e n tence and remand for resentencing

. United S tates v. Y a mashi r o , 788 F .3d 1 231, 1235–36 (9th Cir. 2015) ( vacating
sentence for structural error w here defendant was deprived o f counsel during victim’s allocution at sentencing proceeding ). An error, constitutional or o t h e r w ise, that r elates solely to sentencing d oes not require the vacation of a conviction. See id. ; see also Robinson v

. Ignacio
, 360 F .3d 1 044, 1 0 61 (9th Cir. 2004) (g ranting writ of habeas corpus and remanding for resentencing

without performing harmless error analy sis).

A. Probable effect of the message actually sent

A court’s m e s s ag e to a deliberating jury inevitably influences the jury ’s analy s i s

. “ Particularly in a criminal trial, the judg e ’s l a s t w o rd is apt to b e the decisive word.” Frantz
, 533 F .3d at 742 (quoting Bollenbach v. United States
, 326 U.S. 607, 612 (1946)). F or that reason, when a court receives a jury

note, how the court’s “reply

. . . [ is] worded”

can have just as much impact as the court’s dec i s i o n , for

ex a mple, w hether or not to g ra n t t h e jury ’s request to see evidence. Id. Even “‘ana ly tically correct’ answers to a jury
may u n necessarily

—and improperly

—influence a jury .” Id. (quoting Arizona v. Jo h n s o n , 351 F

. 3d 988, 994 (9th Cir. 2003)).U N I T E D S T A T E S V

. M A R T I N E Z 19

T h e unique circumstances surrounding the removal da t e finding like l y heig htened the impact of the court’s messag e

. The jury did not learn that it would need to make a special finding about Martinez ’ s removal d ate until just before deliberations beg an. A nd the cour t ga v e only a brief instruction r eg arding that f i n d i n g , stating that the jurors h ad
to unanimously ag ree that Martinez w a s removed a fter December 3, 2010

. T h e court never instructed the jury that this f inding

, like the elemen ts of the c r ime itself, had to be proven bey

ond a reasonable doubt by the g overnment.

The court’s messag e, thoug h technically accurate to those versed in the law who would likely interpret it a s referencing sentencing

, was misleading to the jury

. I n reply to the jury ’s questio n , t h e c o urt stated, “I t is a matter f or the court to consider, not t he jury

. The jury has to consider whether the defendant was deported or removed a f t e r that date.” The
response was confusing —it was internally inco n s i stent because it both told the jury that the d ate was a matter for the
court to consider and then said it was for the jury to consider. M o r e o ver, the court told the jurors they needed only t o consider when Martinez was r emoved, not that the y n eeded
to determine whether t h e g overnment proved the removal date bey ond a reasonable doubt. F urther, the m e ssag e sug g ested that, unlike the determination of g uilt, the court a nd jury shared the factfinding task concerning the removal date.

That the court’s messag e c aused the ju r y t o quickly

ex a mine the evidence of the r e m o val date under an impermissible burden of proof is made more probable by the l apse o f o nly eig ht minutes between the jury n ote an d i t s return o f the verdict—time which included g etting the note to the judg e, the judg e thin k i n g about and then writing the
response, and the delivery of the judg e’s response. I ndeed, inU N I T E D S T A T E S V

. M A R T I N E Z 20

Rogers
, the Supreme Court held that the return o f a jury verdict only five minutes after the court’s messag e “strong ly
sug g est[ e d] that the trial judg e’s response may have induced unanimity .” 422 U.S. at 40.

The court’s r esponse here was different in kind from the
responses in case s w h e r e w e have found a court’s error harmless. The response was unlike that in Barraga n-Devis
, where the c ourt chose not to respond to a sing le juror’s note. 133 F .3d at 1289. I t was also unlike that in Mohsen

, where the court refused to provide a c opy of the indictment because the verdict form in front of the jurors contai n ed the same information. 5 87 F. 3 d at 1031. I n both of those c ases, the court’s responses on their face made it hig hly unlikely that the jury was affected i n s u ch a way as to prejudice the defendant. The response here w as also unlike that in RosalesRodriguez

, where the court informed the jury tha t o n e j uror had a conflict the following week. 289 F .3d at 1109. I n that
case, the court’s response certainly could have caused the jury to rush to a verdict, b ut other evidence dissuaded us that the jury was in fact pressured to do so.

I nstead

, the circumstances here are similar to those in which a court’s ex p a r te response was fo u nd to be constitutionally h armful. The court did not refuse to respond

o r refer to previously -ag r eed instructions. Rather, it craf t e d

a new instruction to the jury

. I n Artus
, we held that the court’s new instructions, delivered outside the presence o f

c o u nsel, prejudiced the defendant so as to require revers a l

. 591 F .2d a t 528–29. Similarly

, in Rogers
, the Supreme Court held that the district court’s supplementary instruction, telling the jury that it could recommend mercy in sentencin g, was not harmless b ey ond a rea s o n a b l e doubt. 422 U.S. at 40. I ndeed, two other c ircuits have r ecog niz ed that a newU N I T E D S T A T E S V

. M A R T I N E Z 21

i nstruction delivered without consulting counsel is so lik el y to b e prejudicial that those c ircuits require automatic reversal for such error. See French

, 332 F .3d at 438 ( S i x t h Circuit); Curtis
, 124 F .3d at 4–5 (F irst Circuit).

B. The likelihood that the court would have sent a different message if defense counsel were consulted

Consulting with c o u n s el on the jury note likely would have produce d a different r esponse. The jury ’s question pertained to a finding that c ould i n c r e ase Martinez ’s

max imum sentence from two to twenty y ears, so there is little doubt that defense counsel would have taken c a r e to ensure that the court answered the note in a way that would not prejudice Martinez

. M a r t i nez contends that his counsel would have, at a minimum, asked tha t the court’s response “provide proper g

uidance on the deliberative sig nificance of
t he date finding

, including that it had to be proven bey ond a

r e a s o n able doubt.” That would h ave been a reasonable proposal in lig ht of the court’s prior omissions of the
g overnment’s burden of proof f or the removal d ate finding

. Additionally

, defense counsel would have e n s u red that the jury was instructed not merely to “consider” the da t e o f removal, but to make an aff i r m a t i ve determination about it. F urther, counsel l i k ely w ould have recommended that the
note ex clude any ment i o n o f the court’s role in considering the previous conviction or removal dates. B y telling the jury that dates were “a matter for the court to c onsider” in addition
to the jury

, the note wrong ly indicated that the jury shared its factfinding task with the court. Ther e i s n o r e ason to think that the judg e would have r e f used to incorporate counsel’s uncontroversial sug g estions, which would have resulted in a clearer and more accurate response to the jury ’s question.U N I T E D S T A T E S V

. M A R T I N E Z 22

C. Effect on the verdict

A prope r r e sponse could have made the difference between a two-y ear prison se ntence and the four-y ear, ninemonth prison sentence the court im p o s e d

. Much of the documentary evidence the g overnm e nt submitted contained inaccuracies, which the g overnment was forced to concede. Had the jury b een specifically instructed on the b urden o f proof as to the removal date, it mig ht well have found that the
g overnment did not meet its burden.

The g overnment introduced sever al documents concerning Martinez ’s p revious removal. Among ot her thing s, t h e s e ex hibits recorded immig ration ag ents’ interviews with Mar t inez leading up to his removal a nd documented his ex it f

rom the United States. All of the f orms appeared to have been completed i n 2012. I n a ddition to proving at trial that Martinez p reviously had b e en removed, the g overnment u sed the forms to prove Martinez ’s alienag e , because some of the forms claimed th at Martinez h ad admitted to immig ration ag e nts that he was a noncitiz en.

As p a r t o f h is defense strateg y of attacking the
g overnment’s e v i dence of alienag e, Martinez was able to demonstrate error s o n the documents from his removal in 2012, as well as from his apprehension in 2013. His counsel showed, for e x ample, that a report concerning Martinez ’s apprehension in 2013 incorrectly stated that he was detained in J uly rather than December. Counsel also pointed out that Martinez ’s 2012 warrant of removal incorrectly li s t e d the immig ration ag ent as “ J ohnny W illiams” instead of “Robin B aker.” I n closing

, defense counsel arg ue d that there was a hig h potential for inaccuracies in th e s e reports because “anU N I T E D S T A T E S V

. M A R T I N E Z 23

ag ent

. . . is cutting a

nd pasting and i s u s i n g the same f orms every time.” Defense counsel further ex plained:

Every one w h o testified is testify ing about thing s that happened at least ten months a go, up to two y ears ag o. They don’t remember

ex a ctly what happened. They ’re rely ing on their r eports. A nd the question is, are these reports, is this p aperwork, s o accurate, so t r u s t w o r t hy that it’s proof bey o n d a reasonable doubt?

Thoug h Martinez n ever d irectly refuted his da t e o f removal
at trial, and his counsel assumed during closing arg ument that the d ates on the re m o val forms were correct, Martinez repeatedly questioned the a ccuracy of the documents in other
contex ts. The g overnment even conceded the errors during its closing arg ument, stating

, “Okay

, there w e r e s o me mistakes in the reports. I t happens.”

The evidence of m i s takes in Martinez ’s immig r ation documents disting uishes this case f rom previous decisions in which we have held that a jury necessarily f ound bey ond a reasonable doubt that the defendant’s re m o v a l was subsequent to an ag g ravated felon y conviction for purposes of 8 U.S.C. § 1326(b)(2). S ee United States v. CalderonSegura
, 512 F .3d 1104, 1 111 (9t h C i r

. 2008); United States

v. Martinez-Rodriguez

, 472 F .3d 1 0 87, 1092 (9th Cir. 2006). I n those case s , the g overnment failed to alleg e that the defendant’s remo v a l date was subsequent to an ag g ravated felony c onviction, and the jury never made an ex press finding

on that question. During sentencing

, however, the court made the finding and applied the h ig her statutory max imum under 8 U.S.C. § 1326(b)(2 )

. We nevertheless affirmed theU N I T E D S T A T E S V

. M A R T I N E Z 24

s e n t ences, reasoning that the jury necessarily found that t h e removal date w as subsequent to the convictions because t h e removal d o cuments at trial listed only dates subsequent to the conviction date.

Here, d ef

ense counsel showed and the g overnment conceded that Martinez ’s immig ration documents contained mistakes, includ i ng at least one incorrect date. W e cannot

assume that the jury d e termined that every thing on the d o cuments was correct simply because it relied on th o s e do c uments to conclude that Martinez previously h ad been removed. I

ndeed, it would have been rational for the jury to decide that the ex istence of num e rous d ocuments recording Martinez ’s removal indicated that the removal happened, but
to nevertheless conclude that it could not rely on those documents f

o r the accuracy o f s p ecific dates. This is especially true because such details are more susceptible to inaccuracies caused by

actions like cutting and pasting from other documents.

* * *

There is no question that the jury ’s task in answering the special finding w as simple: either the date of Martinez ’s removal was a fter December 3, 2010 or it was not. However, there is much cause to conclude that t h e f inding was influenced by the court’s error: the evidence o f t h e documents’ unreliability

, the failure to instruct on the burden of proof, the court’s misleading response to the jury note that effectively lessened the g overnment’s b urden o f proof, a nd the ba r e e i ght minutes that e lapsed between the jury ’s n ote and its return of the g uil t y v e r d ict w ith the removal date finding

. W e c annot say that the court’s error was so unlikelyU N I T E D S T A T E S V

. M A R T I N E Z 25

to affect the special finding that it w a s h a rmless b ey ond a reasonable doubt.

V.

W e hold th a t the court erred by r esponding to the jury
note without consul t i n g counsel, in violation of Rule 43(a) and the Six th Amendment. F urthermore, we h o l d t hat the court’s e r r o r w as not h armless bey ond a reasonable doubt with respect to the jury ’s sp e c i al finding

. B ecause that finding increased the statutory max imum sentence f or which Martinez was elig i b l e , we vacate Martinez ’s sentence a nd strike the special finding

. On remand, the government may elect to retry the removal date issue before a sentencing jury

, or it may r equest tha t t h e district court r esentence Martinez under the two-y e a

r sentencing provi sion in 8 U .S.C. § 1326( a )

. 7 See United States v. Vera
, 770 F .3d 1232, 1253 (9th Cir. 2014).

H o w e ver, the district court judg e ex pressed v iews both during a pre-trial hearing and following h is failure to consult counsel when he received the jury note that reasonably could lead the defendant to question the presence of bias. B ecause

we do n ot think that the district court judg e w ould be able to put these views o u t o f his mind and in order to preserve the
appearance o f justice, u

pon rema n d the Clerk of the United S t a t es District Court for the Southern District o f Californ i a

7 W e d o n o t rev erse Martin ez’ s co n v ictio n b e cau se th e j u ry w as p ro p erly i n stru cted on th e ch arg e an d retu rn ed a g u ilty v erd ict u n related
to its sp ecial f

in d in g , w h ich b o re o n ly o n th e statu to ry m ax im u m sen t en ce.U N I T E D S T A T E S V

. M A R T I N E Z 26

s h a l l reassig n this case to a different d istrict court judg e for further proceeding s. See United States v

. W orking

, 287 F .3d 801, 809 (9th Cir. 2002).

VACATED; REMANDED.