                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    No. 15-50205
           Plaintiff-Appellee,
                                               D.C. No.
                 v.                      3:14-cr-00117-BEN-1

 BLADIMIR MARTINEZ,
        Defendant-Appellant.                    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 common-
law 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 Rosales-
Rodriguez, 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, applying Chapman
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.3 Id. 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 fact-
specific 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 of supplemental 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 (5th Cir.
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 mid-
deliberations 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 statutory maximum 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. Guerrero-
Jasso, 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 (9th Cir. 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 Almendarez-
Torres. 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 Rosales-
Rodriguez, 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 certainly could 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 supplementary instruction, 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, nine-
month 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. Calderon-
Segura, 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.
