United States v. Bladimir, No. 15-50205 (9th Cir. 2017)
Annotate this CaseDefendant appealed his conviction and sentence for being a removed alien found in the United States in violation of 8 U.S.C. 1326. The court concluded that the district court's failure to consult defendant's counsel before responding to a jury note, regarding defendant's removal date, violated Federal Rule of Criminal Procedure 43 and the Sixth Amendment. The court concluded that the error was constitutionally harmful because much of the government's documentary evidence concerning defendant'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. Therefore, the court vacated the sentence and strike the special finding. On remand, the court explained that the government may elect to retry the removal date issue before a sentencing jury, or it may request that the district court resentence defendant under the two-year sentencing provision in section 1326(a). Upon remand, the court instructed that the case shall be reassigned to a different district court judge.
Court Description: 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 UNITED STATES V. MARTINEZ 3 panel instructed that the case be reassigned to a different district judge.
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