FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

BLADIMIR MARTINEZ, 

Defendant-Appellant.

No. 15-50205

D.C. No. 

3:14-cr-00117-BEN-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted August 1, 2016

Pasadena, California

Filed March 10, 2017

Before: Stephen Reinhardt and Kim McLane Wardlaw,

Circuit Judges, and Ronald M. Whyte,* District Judge.

Opinion by Judge Wardlaw

* The Honorable Ronald M. Whyte, United States District Judge for

the Northern District of California, sitting by designation.
2 UNITED STATES V. MARTINEZ

SUMMARY**

Criminal 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 maximum sentence from two

years to twenty, and remanded.

The panel held that the district judge’s failure 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 violated Fed. R.

Crim. P. 43(a) and the defendant’s Sixth Amendment right to

counsel.

The panel held that the judge’s error was not harmless

beyond a reasonable doubt because much of the government’s

documentary evidence concerning the defendant’s prior

removal contained demonstrable errors, and because defense

counsel, had she been consulted, would have specifically

requested that the district court instruct the jury that the

government was required to prove the removal date beyond

a reasonable doubt. 

The panel instructed that the government, on remand, may

elect to retry the removal date before a sentencing jury or

request that the district court resentence the defendant under

the two-year sentencing provision in 8 U.S.C. § 1326(a). The

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MARTINEZ 3

panel instructed that the case be reassigned to a different

district judge.

COUNSEL

Doug Keller (argued), Federal Defenders of San Diego, Inc.,

San Diego, California for Defendant-Appellant.

Mark R. Rehe (argued), 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.

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
4 UNITED STATES V. MARTINEZ

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
UNITED STATES V. MARTINEZ 5

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
6 UNITED STATES V. MARTINEZ

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 

1 The government argues that plain-error review applies because

Martinez never objected below. Counsel for Martinez, however, did not

have the opportunity to object before the court answered the jury’s
UNITED STATES V. MARTINEZ 7

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 commonlaw 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 (1975), the

deliberating jury sent a note to the court inquiring “whether

question. Moreover, the court told counsel that if it had a problem with

the court’s communication with the jury, “[T]hat is the way it goes,” and

that Martinez could “take it up with the Court of Appeals.” Obviously,

objecting after the jury rendered its verdict with the influence of the

court’s unilateral response would have been futile. “A failure to raise a

futile objection does not waive the objection.” United States v. Kyle, 734

F.3d 956, 962 n.3 (9th Cir. 2013); cf. United States v. Barragan-Devis,

133 F.3d 1287, 1289 (9th Cir. 1998) (reviewing de novo a claim similar

to Martinez’s where defense counsel did not learn about the jury note until

after the verdict and did not object).
8 UNITED STATES V. MARTINEZ

the court would accept the Verdict—Guilty as charged with

extreme mercy of the Court.” Id. at 36 (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. 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.

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. 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

(1919), involved a civil suit for negligence. Id. at 77. There,

during deliberations, the jury sent a note to the district court
UNITED STATES V. MARTINEZ 9

asking whether the plaintiff could be found contributorily

negligent, and the court replied in writing with supplementary

instructions. Id. at 80. 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. 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 in person or

by counsel at all proceedings from the time the jury is

impaneled until it is discharged.” Id. The Court thus

reversed the judgment and remanded the case to the district

court, noting that “erroneous rulings are presumptively

injurious, especially 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. 

In that case, the jury sent a note to the district court during

deliberations stating that it had reached a verdict for five of

the eight defendants. Id. at 584. The court replied in writing

that the jury must reach a verdict as to all of the defendants. 

Id. Neither the defendants nor their counsel were advised of

the communications, nor were the communications made in

open court. Id. at 585. The Supreme Court remanded the

case for a new trial, explaining that its holding followed a

fortiori from the rule laid out in Fillippon, which required,

“especially in a criminal case,” that jury instructions be given

in the presence of counsel or after notice and an opportunity

to be present. Id. at 588–89.

In our circuit, we have held that a court violates Rule 43

not only when it fails to consult counsel about a jury note, but
10 UNITED STATES V. MARTINEZ

also when it does so inadequately. In United States v. Artus,

591 F.2d 526 (9th Cir. 1979), the jury sent a note to the court

asking about the jury instructions and the government’s

closing argument, in which the prosecutor had introduced

facts not in evidence. Id. at 527. The court informed counsel

that it would speak to the jury foreperson. Id. The court did

so, answering at length several factual inquiries from the

foreperson about the case. Id. at 528. We held that, even

though the court informed counsel that it would answer the

foreperson’s questions beforehand, the court violated Rule 43

because it “did not adequately consult with counsel prior to

giving the supplemental instructions.” Id. We reasoned that

“[t]he interchange between jury and judge should be

surrounded with formalities so that the Defendant has an

adequate opportunity to evaluate the propriety of the

proposed response or instruction, formulate objections, or

suggest a different response.” Id. On the basis of the court’s

violation of Rule 43 and the government’s improper

statements during closing argument, we reversed the

conviction. Id. at 529.

B. Sixth Amendment

We have held that the Sixth Amendment, in addition to

Rule 43, requires a court to consult defense counsel when it

receives an inquiry from the jury.

2

In United States v.

2 Martinez bases his constitutional claim on the Sixth Amendment. 

We have sometimes situated similar claims under the Sixth Amendment’s

right to counsel, see Musladin v. Lamarque, 555 F.3d 830, 836 (9th Cir.

2009), and at other times the right to confront witnesses, see RosalesRodriguez, 289 F.3d at 1109–10. The scope of a defendant’s right to be

notified and heard regarding a jury note has not varied, however, based on

the specific clause we have invoked. Furthermore, we have held that Fifth
UNITED STATES V. MARTINEZ 11

Barragan-Devis, a single juror sent a note to the court during

deliberations asking about the evidence showing the

defendant’s intent to possess and distribute heroin. 133 F.3d

at 1288–89. Without consulting counsel, the court chose to

not respond. Id. at 1289. We held that the court’s decision

violated the defendant’s Sixth Amendment “right to be

represented by his attorney at . . . a conference” during which

defendant’s counsel could have argued in favor of a reply. Id.

We affirmed the conviction, however, applyingChapman

v. California, 386 U.S. 18 (1967), and finding that the error

was harmless beyond a reasonable 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:

First, we consider the probable effect of the

message actually sent, second, the likelihood

that the court would have sent a different

message had it consulted with appellants

beforehand and third, whether any changes in

the message that appellants might have

obtained would have affected the verdict in

any way. 

Id. at 1289 (quoting Frazin, 780 F.2d at 1470–71). We

concluded that the error was harmless because the court’s

silence likely did not influence the jury, the jury previously

received the relevant jury instructions regarding intent, and

the note “d[id] not reveal any legal disorientation on the part

Amendment due process provides a similar guarantee. See United States

v. Frazin, 780 F.2d 1461, 1469 (9th Cir. 1986).
12 UNITED STATES V. MARTINEZ

of the juror or the jury” but rather “reveal[ed] some difficulty

in assessing the probative value of the evidence.” Id. at 1290.

In United States v. Rosales-Rodriguez, we extended this

Sixth Amendment right to require trial courts to consult

counsel about the court’s communications to a deliberating

jury, even when those communications are not initiated by the

jury. There, the court sent an unsolicited note to the jury in

the absence of counsel and the parties. Rosales-Rodriguez,

289 F.3d at 1109. The note informed the jury that if

deliberations were not concluded by Friday at 4:30 p.m., an

alternate juror would be substituted for a deliberating juror

who had a conflict the following week, and deliberations

would have to begin anew. Id. We concluded that the note

was a supplementary instruction that the court should have

reviewed with counsel, because counsel might have objected

to the instruction or sought alternative language. Id. at 1110.

We then determined that the failure to give counsel the

opportunity to be heard was both a constitutional and

statutory violation.3Id. at 1110–11. Nevertheless, the

violation was harmless beyond a reasonable doubt because

the jury reached its verdict by Friday at 11:00 a.m.,

suggesting that the jury had no difficulty reaching a verdict,

and would have returned it well before 4:30 p.m. regardless

of the note. Id. at 1111.

3 We noted that “[t]he constitutional right, which is the right to be

present at every ‘critical stage’ of the trial, is based in the Fifth

Amendment Due Process Clause and the Sixth Amendment Right to

Confrontation Clause.” Id. at 1109.
UNITED STATES V. MARTINEZ 13

IV.

The district court violated Martinez’s constitutional and

statutory rights by failing to notify counsel of the jury note

and to give counsel the opportunity to be heard during the

preparation of the response.

Martinez argues that this error was structural, requiring

automatic reversal under United States v. Cronic, 466 U.S.

648 (1984). He cites Musladin v. Lamarque, 555 F.3d 830

(9th Cir. 2009), and United States v. Mohsen, 587 F.3d 1028

(9th Cir. 2009), two recent cases in which we found the

failure to consult counsel before responding to a jury note

constitutional error, but did not hold that the error was

structural. Indeed, we have never held that such error is

structural error under Cronic.

In Musladin, a state capital case on habeas review, we

considered whether clearly established federal law existed

requiring consultation with counsel when the court receives

a mid-deliberations inquiry from the jury. 555 F.3d at

833–35. To determine whether the mid-deliberations

communication constituted a Cronic “critical stage” of trial,

we considered whether it was a stage that “held significant

consequences for the accused.”

4

Id. at 839 

4 Our circuit 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. 

We have articulated a three-factor test for determining whether a

stage of a criminal proceeding is a “critical stage” during which the

defendant has a Sixth Amendment right to counsel: whether during that

stage, “(1) ‘failure to pursue strategies or remedies results in a loss of
14 UNITED STATES V. MARTINEZ

significant rights,’ (2) ‘skilled counsel would be useful in helping the

accused understand the legal confrontation,’ and (3) ‘the proceeding tests

the merits of the accused’s case.’” Hovey v. Ayers, 458 F.3d 892, 901 (9th

Cir. 2006) (quoting Menefield v. Borg, 881 F.2d 696, 698–99 (9th

Cir.1989)).

The Supreme Court has held that a “critical stage” under Cronic is “a

step of a criminal proceeding, such as arraignment, that h[olds] significant

consequences for the accused.” Bell, 535 U.S. at 696. In at least one case,

we melded the two “critical stage” determinations together, suggesting

that a Sixth Amendment violation involving the absence of counsel always

requires automatic reversal. See United States v. Hamilton, 391 F.3d

1066, 1070 (9th Cir. 2004). In several other cases, we have recognized

that the Cronic “critical stage” determination is separate but nevertheless

used the Hovey test for determining whether a stage implicates the Sixth

Amendment. See, e.g., McNeal v. Adams, 623 F.3d 1283, 1289 (9th Cir.

2010); United States v. Benford, 574 F.3d 1228, 1232–33 (9th Cir. 2009). 

In McNeal v. Adams, for example, we stated that we were “issu[ing] th[e]

opinion to clarify the difference between a stage at which the defendant

has a right to counsel, see Mempa v. Rhay, 389 U.S. 128, 134 (1967), and

a critical stage requiring per se reversal if counsel is absent, see United

States v. Cronic, 466 U.S. 648, 658-59 (1984).” 623 F.3d at 1285. The

opinion in McNeal nevertheless applied the test from Hovey to determine

whether the hearing at issue was a Cronic “critical stage.” Judge Berzon

wrote separately to clarify the distinction:

I believe the majority confuses the “critical stage”

standard applicable to United States v. Cronic, 466 U.S.

648 (1984) with the separate “critical stage” standard

applicable to all claims under the Sixth Amendment. 

Put simply, the majority erroneously treats the two as

the same, when they are not. The standard applicable

in the first instance is “any stage of a criminal

proceeding where substantial rights of a criminal

accused may be affected,” Hovey v. Ayers, 458 F.3d

892, 901 (9th Cir.2006) (citation and quotation marks

omitted), while that applicable in the second instance is

whether the denial of counsel at a given stage holds

such “significant consequences” for the overall
UNITED STATES V. MARTINEZ 15

(quoting Bell v. Cone, 535 U.S. 685, 695–96). We concluded

that it did, explaining that the “‘stage’ at which the

deprivation of counsel may be critical should be understood

as the formulation of the response to a jury’s request for

additional instructions, rather than its delivery.” Id. at 842. 

Finding that this principle was not clearly established federal

law, however, we held that because the court simply referred

the jury to the prior instructions, instructions that defense

counsel had participated in formulating, it would not be

unreasonable to conclude that this was not a Cronic critical

stage. Id. at 842–43. In so stating, and in a series of

footnotes, we distinguished among the types of jury inquiries

that might or might not trigger a critical stage, such as

rereading the prior instructions, see Hudson v. Jones, 351

F.3d 212, 217 (6th Cir. 2003), rereading testimony, see

United States v. Toliver, 330 F.3d 607, 614–15 (3d Cir.

2003), or providing supplemental instructions, see French v.

Jones, 332 F.3d 430, 438 (6th Cir. 2003), suggesting a factspecific inquiry somewhat at odds with the concept of

structural error.5 Musladin, 555 F.3d at 842.

proceeding that a prejudice inquiry is impractical, see

Musladin v. Lamarque, 555 F.3d 830, 839-40 (9th Cir.

2009).

McNeal, 623 F.3d at 1289–90 (Berzon, J., concurring in the judgment)

(citations omitted).

5

In Musladin, we explained how other circuits have treated a court’s

mid-deliberations communications with the jury. In the First and Sixth

Circuits, the delivery ofsupplemental jury instructions, but not previously

read and agreed-to instructions, is a Cronic critical stage. See Hudson,

351 F.3d at 217; French, 332 F.3d at 438; Curtis v. Duval, 124 F.3d 1, 4–5

(1st Cir. 1997)). The Fifth Circuit has held that a court’s failure to consult

counsel when it refers the jury to previous instructions does not require

automatic reversal. United States v. Hillsman, 480 F.3d 333, 336 (5thCir.
16 UNITED STATES V. MARTINEZ

In Mohsen, after concluding 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 charges,” we

determined that the error was harmless beyond a reasonable

doubt. 587 F.3d at 1031. We rejected Mohsen’s argument

that answering a jury’s question without consulting counsel

is always structural error requiring reversal, stating that in

Musladin “[w]e never suggested that all errors regarding jury

communications during deliberations were subject to

automatic reversal.” Id. at 1032. We distinguished the jury

request in Musladin from that in Mohsen because “[u]nlike

the communication in Musladin, the jury note [in Mohsen]

was not a question about the law governing the jury’s

deliberations.” Id. Nor did the note in Mohsen make any

“substantive inquiry about the facts or the law,”

distinguishing it from jury notes in other previous cases. Id.

(citing Frantz v. Hazey, 533 F.3d 724, 741–42 (9th Cir. 2008)

(en banc)). We then cited three cases in which we had found

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

Rosales-Rodriguez, which involved a court’s unsolicited

supplementary instruction regarding the substitution of an

alternate juror, 289 F.3d at 1110; Barragan-Devis, in which

the court chose not to respond to a note from a single juror,

133 F.3d at 1289; and Frazin, in which the court responded

to a note that 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 suggest that the question

whether the failure to consult counsel about a middeliberations jury note is structural error turns on both the

2007). And the Third Circuit has held that providing record testimony

without consulting counsel is not structural error. Toliver, 330 F.3d at

614–15. 
UNITED STATES V. MARTINEZ 17

nature of the jury’s request and the need for counsel’s

participation in formulating a response. 

Here, the jury was required to find beyond a reasonable

doubt that Martinez was removed after December 3, 2010, the

date he was convicted of the predicate aggravated felony. If

the jury so concluded, the statutorymaximum sentence for his

illegal reentry conviction would jump from two to twenty

years under 8 U.S.C. § 1326(b)(2). Factual determinations

that “increase[] the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”6 Apprendi v. New Jersey, 530

U.S. 466, 490 (2000); see also United States v. GuerreroJasso, 752 F.3d 1186, 1190 (9th Cir. 2014) (“As applied

to § 1326, the Apprendi principle requires that to trigger

§ 1326(b)’s twenty-year-maximum sentence, facts

establishing that the removal occurred after an aggravated

felony conviction must be admitted by the defendant or

proved to a jury.”). 

6 The jury need only answer the question whether the removal

occurred after the date of conviction. Under Almendarez-Torres v. United

States, 523 U.S. 224 (1998), the jury was not required to find that

Martinez in fact suffered the conviction. Id. at 226; see also United States

v. Pacheco-Zepeda, 234 F.3d 411, 415 (9thCir. 2000) (holding that, under

Almendarez-Torres, the government was not required to “include [the

defendant’s] prior aggravated felony convictions in the indictment, submit

them to a jury, or prove them beyond a reasonable doubt” for a 8 U.S.C.

§ 1326(b)(2) sentence enhancement). Therefore, at trial, the government

did not present evidence about Martinez’s previous conviction, and the

jury was thus unaware during deliberations of what December 3, 2010

represented. Martinez contends, “for preservation purposes,” that the

Sixth Amendment required the government to prove beyond a reasonable

doubt to the jury the fact of his conviction. He recognizes, however, that

the Supreme Court previously rejected that argument in AlmendarezTorres. We do so as well.
18 UNITED STATES V. MARTINEZ

We need not decide in this case, however, whether the

judge’s ex parte response to a mid-deliberations jury note

about the significance of an Apprendi sentencing factor was

structural in nature because we find that the constitutional

error was not harmless beyond a reasonable doubt under the

three-part Frazin test. Even if we were to determine that the

judge’s formulation of his response to this jury note, which

dealt only with sentencing, was a “critical sentencing stage,”

the result would be the same: we must vacate Martinez’s

sentence and remand for resentencing. United States v.

Yamashiro, 788 F.3d 1231, 1235–36 (9th Cir. 2015) (vacating

sentence for structural error where defendant was deprived of

counsel during victim’s allocution at sentencing proceeding). 

An error, constitutional or otherwise, that relates solely to

sentencing does not require the vacation of a conviction. See

id.; see also Robinson v. Ignacio, 360 F.3d 1044, 1061 (9th

Cir. 2004) (granting writ of habeas corpus and remanding for

resentencing without performing harmless error analysis). 

A. Probable effect of the message actually sent

A court’s message to a deliberating jury inevitably

influences the jury’s analysis. “Particularly in a criminal

trial, the judge’s last word is apt to be the decisive word.” 

Frantz, 533 F.3d at 742 (quoting Bollenbach v. United States,

326 U.S. 607, 612 (1946)). For 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 decision, for

example, whether or not to grant the jury’s request to see

evidence. Id. Even “‘analytically correct’ answers to a jury

may unnecessarily—and improperly—influence a jury.” Id.

(quoting Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir.

2003)). 
UNITED STATES V. MARTINEZ 19

The unique circumstances surrounding the removal date

finding likely heightened the impact of the court’s message. 

The jury did not learn that it would need to make a special

finding about Martinez’s removal date until just before

deliberations began. And the court gave only a brief

instruction regarding that finding, stating that the jurors had

to unanimously agree that Martinez was removed after

December 3, 2010. The court never instructed the jury that

this finding, like the elements of the crime itself, had to be

proven beyond a reasonable doubt by the government. 

The court’s message, though technically accurate to those

versed in the law who would likely interpret it as referencing

sentencing, was misleading to the jury. In reply to the jury’s

question, the court stated, “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.” The

response was confusing—it was internally inconsistent

because it both told the jury that the date was a matter for the

court to consider and then said it was for the jury to consider. 

Moreover, the court told the jurors they needed only to

consider when Martinez was removed, not that they needed

to determine whether the government proved the removal

date beyond a reasonable doubt. Further, the message

suggested that, unlike the determination of guilt, the court and

jury shared the factfinding task concerning the removal date.

That the court’s message caused the jury to quickly

examine the evidence of the removal date under an

impermissible burden of proof is made more probable by the

lapse of only eight minutes between the jury note and its

return of the verdict—time which included getting the note to

the judge, the judge thinking about and then writing the

response, and the delivery of the judge’s response. Indeed, in
20 UNITED STATES V. MARTINEZ

Rogers, the Supreme Court held that the return of a jury

verdict only five minutes after the court’s message “strongly

suggest[ed] that the trial judge’s response may have induced

unanimity.” 422 U.S. at 40.

The court’s response here was different in kind from the

responses in cases where we have found a court’s error

harmless. The response was unlike that in Barragan-Devis,

where the court chose not to respond to a single juror’s note. 

133 F.3d at 1289. It was also unlike that in Mohsen, where

the court refused to provide a copy of the indictment because

the verdict form in front of the jurors contained the same

information. 587 F.3d at 1031. In both of those cases, the

court’s responses on their face made it highly unlikely that

the jury was affected in such a way as to prejudice the

defendant. The response here was also unlike that in RosalesRodriguez, where the court informed the jury that one juror

had a conflict the following week. 289 F.3d at 1109. In that

case, the court’s response certainlycould have caused the jury

to rush to a verdict, but other evidence dissuaded us that the

jury was in fact pressured to do so.

Instead, the circumstances here are similar to those in

which a court’s ex parte response was found to be

constitutionally harmful. The court did not refuse to respond

or refer to previously-agreed instructions. Rather, it crafted

a new instruction to the jury. In Artus, we held that the

court’s new instructions, delivered outside the presence of

counsel, prejudiced the defendant so as to require reversal. 

591 F.2d at 528–29. Similarly, in Rogers, the Supreme Court

held that the district court’s supplementaryinstruction, telling

the jury that it could recommend mercy in sentencing, was

not harmless beyond a reasonable doubt. 422 U.S. at 40. 

Indeed, two other circuits have recognized that a new
UNITED STATES V. MARTINEZ 21

instruction delivered without consulting counsel is so likely

to be prejudicial that those circuits require automatic reversal

for such error. See French, 332 F.3d at 438 (Sixth Circuit);

Curtis, 124 F.3d at 4–5 (First Circuit).

B. The likelihood that the court would have sent a different

message if defense counsel were consulted 

Consulting with counsel on the jury note likely would

have produced a different response. The jury’s question

pertained to a finding that could increase Martinez’s

maximum sentence from two to twenty years, so there is little

doubt that defense counsel would have taken care to ensure

that the court answered the note in a way that would not

prejudice Martinez. Martinez contends that his counsel

would have, at a minimum, asked that the court’s response

“provide proper guidance on the deliberative significance of

the date finding, including that it had to be proven beyond a

reasonable doubt.” That would have been a reasonable

proposal in light of the court’s prior omissions of the

government’s burden of proof for the removal date finding.

Additionally, defense counsel would have ensured that the

jury was instructed not merely to “consider” the date of

removal, but to make an affirmative determination about it. 

Further, counsel likely would have recommended that the

note exclude any mention of the court’s role in considering

the previous conviction or removal dates. By telling the jury

that dates were “a matter for the court to consider” in addition

to the jury, the note wrongly indicated that the jury shared its

factfinding task with the court. There is no reason to think

that the judge would have refused to incorporate counsel’s

uncontroversial suggestions, which would have resulted in a

clearer and more accurate response to the jury’s question.
22 UNITED STATES V. MARTINEZ

C. Effect on the verdict

A proper response could have made the difference

between a two-year prison sentence and the four-year, ninemonth prison sentence the court imposed. Much of the

documentary evidence the government submitted contained

inaccuracies, which the government was forced to concede. 

Had the jury been specifically instructed on the burden of

proof as to the removal date, it might well have found that the

government did not meet its burden.

The government introduced several documents

concerning Martinez’s previous removal. Among other

things, these exhibits recorded immigration agents’

interviews with Martinez leading up to his removal and

documented his exit from the United States. All of the forms

appeared to have been completed in 2012. In addition to

proving at trial that Martinez previously had been removed,

the government used the forms to prove Martinez’s alienage,

because some of the forms claimed that Martinez had

admitted to immigration agents that he was a noncitizen. 

As part of his defense strategy of attacking the

government’s evidence of alienage, Martinez was able to

demonstrate errors on the documents from his removal in

2012, as well as from his apprehension in 2013. His counsel

showed, for example, that a report concerning Martinez’s

apprehension in 2013 incorrectly stated that he was detained

in July rather than December. Counsel also pointed out that

Martinez’s 2012 warrant of removal incorrectly listed the

immigration agent as “Johnny Williams” instead of “Robin

Baker.” In closing, defense counsel argued that there was a

high potential for inaccuracies in these reports because “an
UNITED STATES V. MARTINEZ 23

agent . . . is cutting and pasting and is using the same forms

every time.” Defense counsel further explained:

Everyone who testified is testifying about

things that happened at least ten months ago,

up to two years ago. They don’t remember

exactly what happened. They’re relying on

their reports. And the question is, are these

reports, is this paperwork, so accurate, so

trustworthy that it’s proof beyond a

reasonable doubt?

Though Martinez never directly refuted his date of removal

at trial, and his counsel assumed during closing argument that

the dates on the removal forms were correct, Martinez

repeatedly questioned the accuracy of the documents in other

contexts. The government even conceded the errors during

its closing argument, stating, “Okay, there were some

mistakes in the reports. It happens.” 

The evidence of mistakes in Martinez’s immigration

documents distinguishes this case from previous decisions in

which we have held that a jury necessarily found beyond a

reasonable doubt that the defendant’s removal was

subsequent to an aggravated felony conviction for purposes

of 8 U.S.C. § 1326(b)(2). See United States v. CalderonSegura, 512 F.3d 1104, 1111 (9th Cir. 2008); United States

v. Martinez-Rodriguez, 472 F.3d 1087, 1092 (9th Cir. 2006). 

In those cases, the government failed to allege that the

defendant’s removal date was subsequent to an aggravated

felony conviction, and the jury never made an express finding

on that question. During sentencing, however, the court made

the finding and applied the higher statutory maximum under

8 U.S.C. § 1326(b)(2). We nevertheless affirmed the
24 UNITED STATES V. MARTINEZ

sentences, reasoning that the jury necessarily found that the

removal date was subsequent to the convictions because the

removal documents at trial listed only dates subsequent to the

conviction date.

Here, defense counsel showed and the government

conceded that Martinez’s immigration documents contained

mistakes, including at least one incorrect date. We cannot

assume that the jury determined that everything on the

documents was correct simply because it relied on those

documents to conclude that Martinez previously had been

removed. Indeed, it would have been rational for the jury to

decide that the existence of numerous documents recording

Martinez’s removal indicated that the removal happened, but

to nevertheless conclude that it could not rely on those

documents for the accuracy of specific 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 was simple: either the date of Martinez’s

removal was after December 3, 2010 or it was not. However,

there is much cause to conclude that the finding was

influenced by the court’s error: the evidence of the

documents’ unreliability, the failure to instruct on the burden

of proof, the court’s misleading response to the jury note that

effectively lessened the government’s burden of proof, and

the bare eight minutes that elapsed between the jury’s note

and its return of the guilty verdict with the removal date

finding. We cannot say that the court’s error was so unlikely
UNITED STATES V. MARTINEZ 25

to affect the special finding that it was harmless beyond a

reasonable doubt. 

V.

We hold that the court erred by responding to the jury

note without consulting counsel, in violation of Rule 43(a)

and the Sixth Amendment. Furthermore, we hold that the

court’s error was not harmless beyond a reasonable doubt

with respect to the jury’s special finding. Because that

finding increased the statutory maximum sentence for which

Martinez was eligible, we 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).

7

See United States v. Vera, 770 F.3d 1232, 1253

(9th Cir. 2014). 

However, the district court judge expressed views both

during a pre-trial hearing and following his failure to consult

counsel when he received the jury note 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 of the United

States District Court for the Southern District of California

7 We do not reverse Martinez’s conviction because the jury was

properly instructed on the charge and returned a guilty verdict unrelated

to its special finding, which bore only on the statutory maximum sentence.
26 UNITED STATES V. MARTINEZ

shall reassign this case to a different district court judge for

further proceedings. See United States v. Working, 287 F.3d

801, 809 (9th Cir. 2002).

VACATED; REMANDED.