District court violated the Sixth Amendment by responding to a jury question without first consulting defense counsel. Martinez was tried for illegal reentry into the United States. There was an allegation that he had been removed subsequent to December 3, 2010, which increased the statutory maximum sentence from 2 years to 20. During deliberations, the jury sent a question concerning the significance of the December 3, 2010 date. Without consulting counsel, the judge responded that it was a matter for the court to consider, not the jury. The jury convicted Martinez and he appealed, challenging the court’s decision to answer the question before consulting with counsel. Held: Reversed. The Sixth Amendment requires a court to consult defense counsel when it receives a jury question. (United States v. Barragan-Devis (9th Cir. 1998) 133 F.3d 1287, 1288-1289.) Since the trial court did not do that in this case, it erred. But whether that error amounts to structural error or is amenable to harmless error analysis depends on the “nature of the jury’s request and the need for counsel’s participation in formulating a response.” Here, it was unnecessary to decide whether the error was structural in this case because it was not harmless beyond a reasonable doubt under the three-part test set forth in United States v. Frazin (9th Cir. 1986) 780 F.2d 1461, which considers (1) the probable effect of the message actually sent, (2) the likelihood that the court would have sent a different message had it consulted with appellants beforehand, and (3) whether any changes in the message that appellants might have obtained would have affected the verdict in any way. Accordingly, the district court’s error was not harmless beyond a reasonable doubt, Martinez’s sentence was vacated, and the matter remanded.

The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/10/15-50205.pdf