United States v. Maxwell Jones, 653 F. App'x 861

Maxwell Jones was convicted by jury of three counts of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g) and 924(a)(2) after two severed jury trials.
The district court sentenced Jones to 144 months’ imprisonment.
Pretrial identification involved a photospread; Jones argued the photospread and later showing of his facial scar to jurors were improper.
During trial the court communicated with a distraught juror outside counsel presence and answered a jury question about jurors’ personal information; Jones challenged these contacts.
At sentencing the court relied on three 2003 Washington state convictions (entered pro se) to calculate the Guidelines; the Government conceded those 2003 convictions were constitutionally invalid.
The Ninth Circuit affirmed the conviction, vacated the sentence, and remanded for resentencing without using the three uncounseled 2003 convictions; the court noted the district court may consider any later-imposed state sentence that was pending at the original sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Photospread suggestiveness	Photospread emphasized Jones and led to misidentification	Photospread was not impermissibly suggestive; identifications reliable	Photospread not impermissibly suggestive; identifications reliable under totality of circumstances (affirmed)
Ex parte communication with juror / jury question	Communications deprived Jones of counsel and were prejudicial	Contacts were innocuous, ancillary, and harmless	No plain error; communications permissible under circumstances (affirmed)
Jury viewing defendant's facial scar during deliberations	Allowing jurors to view scar was improper where defendant didn’t present himself	A jury may view facial features if it had opportunity to observe defendant; no plain error shown	No plain error in permitting jurors to view scar (affirmed)
Use of 2003 uncounseled state convictions at sentencing	Using uncounseled convictions violated Sixth Amendment / invalid for Guidelines	Government conceded convictions were invalid; court used them at sentencing	Sentence vacated; on remand those uncounseled convictions cannot be used to compute Guidelines (vacated and remanded)

United States v. Bagley, 772 F.2d 482 (9th Cir. 1985) (framework for evaluating suggestive photographic identifications)
Rushen v. Spain, 464 U.S. 114 (1983) (standards for communications with jurors outside presence of counsel)
United States v. Madrid, 842 F.2d 1090 (9th Cir. 1988) (ex parte juror contacts and harmlessness analysis)
United States v. Rincon, 28 F.3d 921 (9th Cir. 1994) (permitting jury observation of defendant’s physical features when opportunity to observe at trial existed)
United States v. Christensen, 801 F.3d 970 (9th Cir. 2015) (plain-error standard for trial irregularities)
United States v. Klump, 57 F.3d 801 (9th Cir. 1995) (consideration of sentences imposed after original sentencing for criminal history calculation)