United States Ninth Circuit

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US v. Martinez, 15-50205

Sentence for being a removed alien found in the U.S., 8 U.S.C. section 1326, is vacated where: 1) 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; and 2) the 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.

Appellate Information

  • Argued
  • Submitted
  • Decided
  • Published 2017/03/10

Judges

  • WARDLAW

Court

  • United States Ninth Circuit

Counsel


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