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Name: United States v. Yamashiro
Case #: 12-50608
Court: US Court of Appeals
District 9 Cir
Opinion Date: 06/12/2015

Trial court committed structural error when it allowed victim allocution to proceed when the defendant’s attorney was not present. Yamashiro pled guilty to wire fraud and money laundering. At sentencing, he requested a substitution of counsel, which the district court granted, and a new date was set for sentencing. Before Yamashiro’s new counsel arrived, the court listened to allocution from one victim witness. Yamashiro’s original counsel remained in court during the allocution, but the court said that he did not have to do anything. At Yamashiro’s rescheduled sentencing hearing, the district court sentenced him to 189 months, even though the probation office recommended a low-end sentence of 63 months. Yamashiro appealed. Held: Sentence vacated and the case remanded. The Sixth Amendment right to counsel attaches to all critical stages of a criminal prosecution, and sentencing is a critical stage. The government argued that the victim allocution portion of sentencing is not a critical stage because the victims are not subject to cross-examination or other trial-like confrontations. However, “the essence of a ‘critical stage’ is not its formal resemblance to a trial, but the adversary nature of the proceeding, combined with the possibility that a defendant will be prejudiced in some significant way by the absence of counsel.” (United States v. Leonti (9th Cir. 2003) 326 F.3d 111, 1117.) The Ninth Circuit held that victim allocution qualifies as a critical stage under this definition. The court also held that the denial of counsel during victim allocution was structural error, which is not subject to harmless-error analysis.