United States Court of Appeals For the First Circuit

No. 19-1191

UNITED STATES OF AMERICA,

Appellee,

v.

ALEXIS CANDELARIO-SANTANA, a/k/a "Congo",

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

David Ruhnke, with whom Ruhnke & Barrett, Francisco Rebollo- Casalduc, Francisco Rebollo-Casalduc Law Office, Kendys Pimentel- Soto, and Kendys Pimentel-Soto Law Offices, LLC, were on brief, for appellant. Scott H. Anderson, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and David C. Bornstein, Assistant United States Attorney, were on brief, for appellee.

October 8, 2020 HOWARD, Chief Judge. On October 19, 2012, the appellant,

Alexis Candelario-Santana ("Candelario") was charged in a 52-count

superseding indictment in connection with the October 17, 2009

shooting at La Tómbola, a mini-market and bar in Toa Baja, Puerto

Rico. Relevant to this appeal, Candelario was charged with nine

counts of committing a violent crime (here, murder) in aid of

racketeering, in violation of

, and nine counts of

using a firearm during a crime of violence, in violation of

(j). In advance of trial, the government filed a

notice of its intent to seek the death penalty on sixteen of these

counts.

In 2013, a jury found Candelario guilty on all charges

but failed to reach a unanimous decision on the question of

punishment. The district court, consistent with its

representations to the jury during trial, imposed an incarcerative

sentence for the term of Candelario's natural life without the

possibility of release. Candelario timely appealed his

conviction, arguing that the district court's decision to close

the courtroom during the testimony of a single witness violated

his Sixth Amendment right to a public trial. See United States v.

Candelario-Santana,

(1st Cir. 2016). We concluded

that this courtroom closing constituted structural error and

vacated his conviction.

. On remand, now before a

different district court judge, the government again notified the

- 2 - court of its intention to seek the death penalty on sixteen of the

charges levied against Candelario.

In response, Candelario moved to strike the government's

notice of intent to seek the death penalty on double jeopardy

grounds. The district court denied the motion and Candelario

timely appealed.

We now reverse and remand for further proceedings.

I. BACKGROUND

Because the facts underlying Candelario's original

conviction were set forth in some detail in our opinion in his

initial appeal, see Candelario-Santana, 843 F.3d at 15–16, we

recite them only briefly. We focus our attention on the original

jury's verdict following the penalty phase of Candelario's trial.

A. The Facts

In 1993, Candelario became the head of a drug-

trafficking organization known as the Palo de Goma drug point,

which operated primarily in the Sabana Seca barrio of Toa Baja,

Puerto Rico. During this time, Candelario, along with various co-

conspirators, trafficked in heroin, cocaine, and marijuana, and

used violence to maintain exclusive control of the organization's

"territory." In 2003, Candelario pled guilty in a Puerto Rico

court to twelve counts of second-degree murder and was sentenced

to imprisonment. Nonetheless, he continued to be involved in the

- 3 - drug organization from prison. Candelario was released from

custody in February 2009.

On October 17, 2009, several gunmen entered the La

Tómbola mini-market and bar in Sabana Seca during its opening night

party. They opened fire on the crowd gathered there. Several

witnesses identified Candelario as one of the shooters. One of

the witnesses stated that she heard Candelario shout, "Nobody is

getting out of here alive," while firing on the crowd. The

shooting left nine people dead, including an unborn child, and

nineteen others injured.

Shortly thereafter, Candelario was indicted along with

several others in federal court in connection with the shooting.

The indictment included eighteen murder-related charges that

carried the possibility of a death sentence. On July 8, 2012, the

government notified the district court that it intended to seek

the death penalty against Candelario on sixteen of the eighteen

murder charges. The government did not seek the death penalty for

the two charges related to the death of an unborn child. After a

sixteen-day trial, the jury convicted Candelario on all counts,

including the sixteen capital counts.

B. The Original Penalty Phase

The trial then moved to the penalty phase. During this

phase, the district court instructed the jury orally that "[t]he

selection between two serious choices, the death penalty or

- 4 - lifetime imprisonment without the possibility of release is yours

and yours alone to make." After instructing the jury with respect

to the relevant aggravating and mitigating factors, the burdens of

proof, and the proper order of deliberations, the district court

stated:

[i]f you determine beyond a reasonable doubt that the aggravating factor or factors found to exist sufficiently outweigh any mitigating fact or factors found to exist to justify a sentence of life for a given capital offense, you will enter your determination as to whether death is justified in the corresponding section of the verdict form . . . If you unanimously determine that the aggravating factor or factors do not exist, do not sufficiently outweigh any fact or factors that exist to justify a sentence of death, you will enter your determination as to whether the defendant be sentenced to life imprisonment without possibility of release in the pertinent section of the verdict form.

However, if you are unable to come to [an] agreement of [a] unanimous nature on the issue of punishment, after following the instruction [regarding the duty to deliberate] . . . I will impose a sentence of life imprisonment without the possibility of release. There is a space in your verdict form addressing this outcome.

In reference to the duty to deliberate, the district

court instructed the members of the jury that they had a "duty to

consult with one another and to deliberate with a view to reaching

[an] agreement if you [the members of the jury] can do so without

doing violence to your individual judgment." It reminded the

members of the jury that "[e]ach of you must decide the case for

- 5 - yourself, but [that] you should do so only after consideration of

the evidence with your fellow jurors." The members of the jury,

the court noted, had an obligation to "examine the questions

submitted to you openly and frankly, with proper regard to the

opinion of others and with a willingness to examine your own

views." Beyond this instruction, however, the district court did

not give the jury further oral instructions regarding their duty

to reach a unanimous verdict. The district court gave the jury

substantively identical written instructions.

The jury was then sent to deliberate, and it was required

by statute to return a special verdict. See

(d).

In particular, it was required to state both (1) whether it found

beyond a reasonable doubt that Candelario was death eligible; and,

(2) its finding on each statutory and non-statutory aggravating

factor that the government had argued existed in this case. The

jury was also required to indicate how many of its members found

each of the mitigating factors by a preponderance of the evidence.

The verdict form finally asked the jury to state with respect to

each of the capital counts whether it "determine[d], by unanimous

vote, that a sentence of death shall be imposed"; "determine[d],

by unanimous vote, that a sentence of life imprisonment without

possibility of release shall be imposed"; or determined that

"[a]fter due deliberation, [the members of the jury] are unable to

come to unanimous agreement on the issues of punishment. We [the

- 6 - jury] understand that the Court will impose a sentence of life

imprisonment without the possibility of release."

After approximately one day of deliberation, the jury

informed the district court that it had "concluded deliberations."

The jury unanimously found that Candelario was death eligible and

that the government had proven six statutory aggravating factors

and three non-statutory aggravating factors beyond a reasonable

doubt. With respect to the mitigating factors, at least one member

of the jury found and considered ten of the twelve mitigating

factors presented by Candelario, and two additional ones that had

not been raised by counsel. With respect to each of the capital

counts, however, the jury stated that it was unable to come to a

unanimous agreement on the issue of punishment and "under[stood]

that the Court will impose a sentence of life imprisonment without

the possibility of release."

Upon receiving the verdict form, the district court

announced the jury's decision and asked each member of the jury if

"this [is] your verdict." Each juror answered in the affirmative,

and the district court discharged the jury. The district court

did not give the jury an Allen charge or expressly inform counsel

that the jury was not unanimous before announcing the verdict.

See generally, Allen v. United States,

(1896).

- 7 - C. Appeal and Remand

At a hearing held on August 23, 2013, the district court

sentenced Candelario to a sentence of life imprisonment and a

(purely hypothetical) period of five years of supervised release.

Candelario timely appealed his conviction, arguing only

that the district court's decision to hear testimony from one

witness in a closed session violated his Sixth Amendment right to

a public trial. Candelario-Santana,

. We agreed

with Candelario, holding that the district court had failed to

make any finding that closing the courtroom was necessary to

protect an "overriding interest" in the witness's personal safety.

at 23–24. This failure constituted structural error and

entitled Candelario to a new trial.

On remand, the government again notified the court of

its intention to seek the death penalty. Candelario moved to

strike the notice of intent on double jeopardy grounds. Relying

on the Supreme Court's decision in Sattazahn v. Pennsylvania,

(2003), the district court denied Candelario's motion,

holding that the original trial jury did not acquit Candelario of

capital murder. In doing so, the court stated that the original

penalty-phase jury was deadlocked on the question of death and as

a consequence, the government was not barred from seeking the death

penalty on retrial.

We now reverse.

- 8 - II. JURISDICTION

Though not raised by the parties, we "have an independent

obligation to determine whether subject-matter jurisdiction

exists," especially in cases in which no final judgment has been

rendered. Arbaugh v. Y & H Corp.,

(2006).

Therefore, we begin by briefly addressing whether we have the power

to reach the merits of Candelario's claim.

In most circumstances, "[f]inality of judgment has been

required as a predicate for federal appellate jurisdiction." Abney

v. United States,

(1977). However, this

requirement gives way, and interlocutory appeal is permitted, in

the small class of cases in which a decision by the district court

"finally determine[s] claims of right separable from, and

collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require

that appellate consideration be deferred until the whole case is

adjudicated."

at 658–59 (citing Cohen v. Beneficial Indus.

Loan Corp.,

(1949)).

This case falls into that class. The protection

Candelario invokes "is a guarantee against being twice put to

trial" and would be defeated if he was forced to wait until a final

judgment had been reached to seek review.

(emphasis

added); see also United States v. Keene,

(1st

Cir. 2002).

- 9 - III. STANDARD OF REVIEW

Ordinarily, a motion to dismiss on double jeopardy

grounds rests on a pure question of law that we review de novo.

See Keene,

(citing United States v. Morris,

(1st Cir. 1996)). However, this seemingly simple

principle is complicated where, as here, the district court's

decision with respect to the motion depends on whether the original

penalty-phase jury was in fact deadlocked on the issue of the death

penalty and on whether the district court properly discharged the

jury after confirming its verdict.

In denying Candelario's motion to strike, the district

court treated the original court's decision to discharge the jury

and hold a separate sentencing proceeding as a declaration of a

mistrial. See Mistrial, Black's Law Dictionary at 1200 (11th ed.

2019) (defining "mistrial" as "[a] trial that ends inconclusively

because the jury cannot agree on a verdict"). Now on appeal,

Candelario argues that this conclusion was erroneous. The original

jury, he argues, unanimously rejected the death penalty and the

original court simply effectuated the jury's verdict by imposing

a life sentence. In evaluating this argument, the district court

relied entirely on the record of the original penalty-phase

proceedings and did not engage in further fact-finding.

Consequently, at least this part of Candelario's argument presents

a question of law that we review de novo. See Keene, 287 F.3d at

- 10 - 233 (citing, inter alia, United States v. Pierro,

(1st Cir. 1994)).

However, Candelario has not clearly argued either

initially on appeal or before the district court that the original

court's decision to accept the jury's verdict was erroneous. To

the extent we reach that question, we will evaluate – favorably to

the government – the original court's actions for plain error.

See, e.g., United States v. Olano,

, 731–32 (1993);

United States v. Davis,

, 236–37 (1st Cir. 2019)

(applying plain error review to unpreserved claims of error during

sentencing).

IV. ANALYSIS

The only question before us on appeal is whether the

jury's failure to reach a unanimous verdict "on the issues of

punishment" during the penalty phase of the initial trial triggers

the protection against double jeopardy during a potential

subsequent penalty phase. Candelario has not argued (nor can he

do so convincingly) that double jeopardy bars the government from

retrying him for the charged offenses following remand. See, e.g.,

Bravo-Fernandez v. United States,

(2016) ("When

a conviction is overturned on appeal, the general rule is that the

Double Jeopardy Clause does not bar reprosecution." (internal

quotations and citations omitted)); cf. Tibbs v. Florida,

, 40–41 (1982) ("[T]he Double Jeopardy Clause [only] precludes

- 11 - retrial once the reviewing court has found the evidence legally

insufficient to support conviction." (internal quotations and

citations omitted)).

Candelario insists that the jury's decision here

amounted, in substance, to an acquittal of the death penalty

because the jury agreed to a sentence of life imprisonment.

Implicit in his argument is the idea that, by instructing the jury

repeatedly as to the consequences of deadlock (namely, that it

would result in an imposition of a life sentence), the district

court reduced the jury's choice to a binary one –- i.e., to either

death or life in prison -- and that any decision by the jury other

than a unanimous verdict for death acquitted Candelario of the

death penalty.

The government responds by arguing that the jury

explicitly failed to reach a unanimous conclusion with respect to

punishment and therefore, that the jury's decision cannot fairly

be read to acquit Candelario of the death penalty. Double jeopardy

therefore does not prevent the government from seeking the death

penalty upon retrial.

In making this argument, the government, like the

district court, relies heavily on the Supreme Court's decision in

Sattazahn v. Pennsylvania,

(2003). There, the Supreme

Court held that, when the penalty-phase jury is unable to "reach[ ]

a decision on death or life" and is discharged "without making any

- 12 - findings regarding aggravating or mitigating circumstances," the

defendant has not been "acquitted" of capital murder. Sattazahn,

537 U.S. at 112–13. Thus, "[the Sattazahn defendant's] 'jeopardy'

never terminated with respect to either" capital murder or the

lesser-included offense of first-degree murder, and the government

could seek the death penalty on retrial.

. However,

the Court in Sattazahn noted that the jury there was discharged

only after the defendant moved for a mistrial under Pennsylvania

law, so there was no question that a mistrial was proper; the

Pennsylvania trial court granted the defendant's motion,

discharged the jury as hung, and entered a sentence of life

imprisonment.

.

In applying Sattazahn, the district court in this case

found that the jury was "clear and deliberate in expressing its

deadlock," and therefore, that its original verdict could not

properly constitute an "acquittal." Consequently, the district

court held that the government was entitled to seek the death

penalty a second time.

We do not disagree with the district court's conclusion

that, if the jury truly was "clear and deliberate in expressing

its deadlock" with respect to the death penalty, double jeopardy

would not bar the government from seeking the death penalty upon

retrial. We are not convinced, however, that the record so clearly

supports the government's position that the jury was hopelessly

- 13 - deadlocked on the question of death. We therefore cannot say that

the district court properly concluded that the original penalty-

phase jury was deadlocked. Nor can we say that, even if the jury

was deadlocked, the original trial judge's decision to declare a

mistrial was "reasonably necessary" under the circumstances.

United States v. Toribio-Lugo,

(1st Cir. 2004)

(quoting Keene,

). Consequently, the government is

now barred from seeking the death penalty a second time.

A. The FDPA

We begin our analysis of Candelario's claim by

determining whether double jeopardy applies at all. The Double

Jeopardy Clause of the Fifth Amendment "protects against a second

prosecution for the same offense after [an] acquittal . . . [or]

conviction. And, it protects against multiple punishments for the

same offense." Brown v. Ohio,

(1977) (citing

North Carolina v. Pearce,

(1969)). However,

double jeopardy ordinarily does not attach to sentencing

proceedings, even in circumstances where a judge (or, in some

states, a jury) is required to make factual findings to determine

whether a defendant is subject to an enhanced sentence. See, e.g.,

Monge v. California,

(1998); Bullington v.

Missouri,

(1981). In the context of sentencing,

the Supreme Court has reasoned, "the determinations at issue do

not place a defendant in jeopardy for an 'offense,'" but rather

- 14 - serve as "a stiffened penalty for the latest crime." Monge,

(internal quotations and citations omitted).

The exception is the death penalty context. In that

circumstance, the Supreme Court has made clear that capital

defendants are entitled to have a jury, not a judge, determine

both whether they are death eligible and whether to impose the

death penalty. See Ring v. Arizona,

(2002)

("Capital defendants, no less than noncapital defendants, we

conclude, are entitled to a jury determination of any fact on which

the legislature conditions an increase in their maximum

punishment." (citing Apprendi v. New Jersey,

(2000)));

Hurst v. Florida,

(2016) ("Ring required a

jury to find every fact necessary to render [the defendant]

eligible for the death penalty.").

Congress has incorporated this requirement into the

Federal Death Penalty Act ("FDPA") by requiring a penalty-phase

hearing after a defendant has been convicted of a capital offense

before the same jury that convicted him.

(a),

3593(b). During this hearing, a jury is required to find: (1) that

the defendant is death eligible; (2) the existence of any

aggravating factor "beyond a reasonable doubt;" and, (3) any

mitigating factor "by a preponderance of the information."

(c). After hearing the evidence, the jury is required

to return a special verdict detailing its findings and recommending

- 15 - "by unanimous vote . . . whether the defendant shall be sentenced

to death, to life imprisonment without possibility of release or

some other lesser sentence."

(e). The district

court is then bound to sentence the defendant according to the

jury's verdict.

If there is no recommendation, the right to determine

the sentence returns to the trial judge, who has the discretion to

impose an incarcerative sentence for a term of years, up to a term

of the defendant's natural life, according to the factors set forth

in

(a); the judge cannot, however, impose a

sentence of death. See Jones v. United States,

, 380–

81 (1999) (interpreting

); United States v.

Tsarnaev,

(2020) ("And if [the jury] cannot make

a unanimous recommendation, the judge steps in and can impose

either a life sentence without possibility of release or any lesser

sentence allowed by law." (emphasis added)); see also

at 41

n.12 (same).

Because this kind of proceeding is "comparable to a

trial," double jeopardy applies. Arizona v. Rumsey,

(1984) (citing Bullington,

); see also Sampson

v. United States (Sampson II),

(1st Cir. 2013)

("After all, the Double Jeopardy Clause . . . applies to sentencing

hearings in capital cases." (internal citation omitted)). What is

more, it applies in the same way, and to the same extent, as it

- 16 - would in any other criminal proceeding. If a penalty-phase jury

imposes a sentence of death, the government, on retrial, may seek

death a second time; if the jury imposes a sentence of life

imprisonment, the government is barred by the Double Jeopardy

Clause from seeking death on retrial. See Sampson II, 724 F.3d at

160–61.

Finally, if the jury fails to reach a unanimous verdict,

our inquiry focuses on whether this failure constituted an

"'acquittal' based on findings sufficient to establish a legal

entitlement to the life sentence." Sattazahn,

;

see also Sampson v. United States (Sampson III),

, 44-

45 (1st Cir. 2016). In essence, this inquiry is identical to the

one we conduct when a district court declares a mistrial because

of jury deadlock. We will therefore turn our attention to that

circumstance.

B. Double Jeopardy After Mistrial

"When a mistrial is declared before the jury returns its

verdict, jeopardy may or may not persist" to bar reprosecution.

Toribio-Lugo,

(citing, inter alia, Arizona v.

Washington,

(1978)). Certainly, double jeopardy

does not bar reprosecution in cases where the defendant either

requests or explicitly consents to the declaration of a mistrial.

See United States v. Dinitz,

, 607–08 (1976)

(explaining that "[d]ifferent considerations obtain, however, when

- 17 - a mistrial is declared at the defendant's request" and holding

that, in such circumstances, double jeopardy does not bar

reprosecution (citing, inter alia, United States v. Jorn,

(1971) and United States v. Tateo,

(1964))).

Double jeopardy also does not bar reprosecution if "a

mistrial was occasioned by manifest necessity." Toribio-Lugo,

(citing United States v. Perez,

,

579–80 (1824)); see also United States v. Garske,

(1st Cir. 2019), cert denied

(2020) ("The

general rule is that a judge's decision to discharge an empaneled

jury and declare a mistrial prior to verdict does not bar retrial

when, taking all the circumstances into consideration, there is a

manifest necessity for that act, or the ends of public justice

would otherwise be defeated." (internal citations and quotations

omitted)); Keene,

("[A]n appropriately declared

mistrial does not insult principles of double jeopardy (and

therefore, does not bar retrial)"); Washington,

("[W]e require a 'high degree' [of necessity] before concluding

that a mistrial is appropriate.").

Because the decision to declare a mistrial is within the

sound discretion of the district court, our review is "inevitably

reduce[d] to whether the district judge's declaration of a mistrial

was reasonably necessary under all the circumstances." Toribio-

- 18 - Lugo,

(citing Keene,

). In doing

so, we consider whether the district court explored other options,

gave counsel the opportunity to object, and acted "after sufficient

reflection."

In the vast majority of cases, the district

court's decision to declare a mistrial when the jury is "genuinely

deadlocked" is manifestly necessary, and the defendant may be

retried without insulting principles of double jeopardy.

Washington,

; Keene,

.

The key to this principle, of course, is that the jury

must be genuinely deadlocked. There is no requirement that a trial

court "consider any particular means of breaking the impasse"

before declaring a mistrial because of a hung jury. Blueford v.

Arkansas,

(2012). The Supreme Court has frowned

upon establishing a mechanical rule that requires a district court

to take specific steps or make specific findings before concluding

that a jury is deadlocked and unlikely to reach a verdict. Renico

v. Lett,

, 775–76 (2010); see also Washington, 434

U.S. at 516–17 (holding that a trial judge's failure to make an

explicit finding of manifest necessity does not render the

declaration of a mistrial constitutionally defective when the

basis for that determination is adequately disclosed by the

record).

This does not mean, however, that a district court can

discharge a jury any time the court believes (reasonably or

- 19 - otherwise) that jurors disagree with one another; nor does it

insulate the district court's decision to discharge the jury from

appellate review. Though we defer to the district court's

judgment, its decision to discharge the jury must be an exercise

of "sound discretion," meaning it must take some step to ensure

that the jury truly is unable to reach a verdict before discharging

it. Renico,

; see also Illinois v. Somerville,

, 470–71 (1973) ("The determination by the trial court to

abort a criminal proceeding where jeopardy has attached is not one

to be lightly undertaken, since the interest of the defendant in

having his fate determined by the jury first impaneled is itself

a weighty one."). Double jeopardy bars retrial on a particular

charge when "the jury was dismissed without returning any express

verdict on that charge and without [defendant's] consent [despite

having] a full opportunity to return a verdict and [in the absence

of any] extraordinary circumstances . . . which prevented it from

doing so." Green v. United States,

(1957).

This principle applies with the same force to the penalty

phase of a capital trial as it does to any other criminal

proceeding in which a jury is called upon to make a determination

of guilt. See generally, Sattazahn,

.

C. The Penalty-Phase Verdict

Here, the record as a whole does not make clear that the

jury was genuinely deadlocked on the question of death, thus making

- 20 - the "declaration of a mistrial . . . reasonably necessary under

all the circumstances." Toribio-Lugo,

(citing

Keene,

). Rather, the record can be read to support

the conclusion that, at least with respect to the death penalty,

the jury had reached a unanimous verdict. Moreover, even if the

jury was not unanimous when the verdict was read, there were no

"extraordinary circumstances" that would have prevented the jury

from reaching a unanimous verdict after further deliberation.

Green, 355 U.S. at 190–91.

1. The Verdict Was Ambiguous

During the penalty phase, the district court instructed

the jury only once before it began deliberations that "[t]he

selection between two very serious choices: (1) the death penalty;

or (2) lifetime imprisonment without the possibility of release,

is yours and yours alone to make." Though the verdict form

included a so-called "third option" if the jury was not unanimous,

the district court's comments (and the verdict form itself) also

made clear to the jury that, if it could not reach a unanimous

decision on the appropriate punishment, Candelario would be

sentenced to life imprisonment. These instructions are not

erroneous; the district court is permitted, though not required,

to instruct the jury as to the consequences of its decision. See

Jones,

; Tsarnaev,

.

- 21 - However, these instructions, when read with the jury's

responses on the verdict form, render the verdict ambiguous and

raise the possibility that the jury intended to acquit Candelario

of the death penalty. Unlike the jury in Sattazahn, the jury here

returned specific findings with respect to Candelario's

eligibility for the death penalty and the aggravating and

mitigating factors presented by counsel. Only after doing so did

the jury turn to the question of punishment and state, with respect

to each capital count, that it did not "determine, by unanimous

vote, that a sentence of death shall be imposed."

It is possible to read the verdict form, as both parties

propose, to indicate that the jury approached the question of

punishment as a binary choice between life and death. The

government argues that, by choosing the third option, the jury

indicated that it was deadlocked as to whether to impose the death

penalty. Candelario, in turn, argues that, because the jury

instructions presented the choice as a binary one, we should read

the verdict form as reflecting the jury's unanimous intent to

impose a sentence of life imprisonment; any verdict other than a

unanimous death sentence, Candelario argues, amounts to a clear

verdict for a sentence of life imprisonment.

But, it is also reasonable to read the verdict form as

suggesting that the jury approached the question of punishment

sequentially: it is reasonable to conclude that the jury first

- 22 - considered and unanimously rejected a sentence of death before

even considering a sentence of life imprisonment.1 And, in this

circumstance, it is possible to read the verdict form as stating

that the jury was divided between a sentence of life imprisonment

and some lesser sentence. See

(allowing a court

to impose a sentence below life imprisonment if authorized by law

if a penalty-phase jury does not return a recommendation); see

also

(j)(1) (allowing for a sentence of imprisonment

1 This ambiguity is particularly salient because first-degree murder is a lesser-included offense of capital murder and because the district court gave no clear instruction to the jury as to the order of its deliberations with respect to the ultimate penalty. The states are divided on the question of how the trial court should instruct a jury in these circumstances. Several states use some variation of what has been called an "acquittal-first" charge, which requires the jury to acquit the defendant of a greater- included offense before considering the lesser-included charge. See State v. Davis,

(Tenn. 2008) (collecting cases). The others use a "reasonable efforts" instruction, which "allows the jury to consider lesser-included offenses if it cannot reach a verdict on the greater offense after having made reasonable efforts to do so."

(collecting cases). The difference between these two approaches is most consequential in the double jeopardy context because a defendant convicted of a lesser- included offense in an "acquittal-first" jurisdiction is protected from retrial on the greater offense. A defendant in a "reasonable efforts" jurisdiction is not. Other circuits have not required district courts to instruct the jury in any particular way with respect to lesser-included offenses, though they have required courts to give effect to the defendant's preference, if he expresses one. See, e.g., United States v. Tsanas,

(2d Cir. 1978); United States v. Jackson,

(9th Cir. 1984). Candelario made no request with respect to any lesser-included offense instruction here, and none was given. Consequently, we have no guidance as to how the jury approached these deliberations.

- 23 - "for any term of years or for life"); but see

(a)(1) (suggesting that the sentence for murder in aid of

racketeering be "death or life imprisonment").

All three interpretations are supported by the plain

text of the verdict form, read along with the jury instructions.

Even after examining the full record, we cannot say with reasonable

certainty which of the three interpretations that we have outlined

was intended by the jury. Cf. Tsarnaev,

(Torruella, J., concurring in part, joining in part, and concurring

in judgment) (noting the necessity of a reasonable "degree of

certainty" in the outcome of the capital sentencing process). This

is especially true because of the context in which the verdict was

rendered. As the Supreme Court has acknowledged, capital

sentencing is a moral enterprise in which the jury is called upon

to make "difficult and uniquely human judgments." McCleskey v.

Kemp,

(1987); see also Tsarnaev,

(Torruella, J., concurring in part, joining in part, and

concurring in judgment) (noting that "the decision of whether to

recommend a death sentence is mostly a question of mercy."

(internal quotations omitted)). Consequently, trying to determine

on appeal the reactions of a jury to evidence presented during the

penalty phase of a capital trial, in the absence of a clear

verdict, "is a dangerously speculative enterprise." Satterwhite

- 24 - v. Texas,

(1988) (Marshall, J., concurring); see

also Caldwell v. Mississippi,

(1985).

Moreover, the original trial court took no steps to

clarify the jury's verdict; when polling the jury, the court asked

each member only if "this [is] your verdict." (emphasis added).

Even if this failure to clarify the verdict would not rise to the

level of reversible error in an ordinary case, capital proceedings

are different and carry with them a "greater need for reliability."

Satterwhite,

(Marshall, J., concurring) (citing,

inter alia, California v. Ramos,

, 998–99 (1983)); see

also Kyles v. Whitley,

(1995) ("Our duty to

search for constitutional error with painstaking care is never

more exacting than it is in a capital case." (quoting Burger v.

Kemp,

(1987)); Tsarnaev,

(suggesting that the district court's obligation to protect the

defendant's rights is heightened in a capital case because of the

stakes involved). Cf. United States v. Poole,

(10th Cir. 2008) ("When a jury returns a verdict that is plainly

ambiguous or uncertain on its face, the district court has a duty

to resolve that doubt.").

Even in non-capital cases, ambiguous verdicts (much like

ambiguous criminal statutes) must be construed in favor of the

defendant. See Blum, George, L., et. al., 75B Am. Jur. 2d, Trial

§ 1472 (2020); see also, e.g., Franklin v. Klopotoski, 2013 WL

- 25 - 5468251 at *5 (E.D. Penn. Aug. 7, 2013) (applying this rule);

Alvarez-Guerrero v. Uttecht,

at *8 (W.D. Wash.

Nov. 8, 2016) (same); cf. Albernaz v. United States,

(1981) ("[The] policy of lenity means that the Court will not

interpret a federal criminal statute so as to increase the penalty

it places on an individual when such an interpretation can be based

on no more than a guess . . . ." (quoting Bifulco v. U.S.,

(1980)). Surely, that consideration is heightened

in a capital case. See Bucklew v. Percythe,

(2019) (Sotomayor, J., dissenting) ("[T]he equities in a death

penalty case will almost always favor the prisoner . . . ."

(citing, inter alia, Nken v. Holder,

(2009)).

Applying this principle, we are required to interpret the ambiguity

inherent in the original jury's verdict in favor of Candelario; we

are, in other words, required to read the verdict as unanimously

rejecting the death penalty.

This is sufficient for us to conclude that the first

life sentence "was an 'acquittal' based on findings sufficient to

establish legal entitlement to a life sentence." Sattazahn,

. Double jeopardy therefore bars the government from

seeking the death penalty on retrial.

2. The Mistrial Declaration

Even if we accept the government's reading of the verdict

and conclude that the jury was, in fact, not unanimous on the

- 26 - question of death, we must still reverse. Because it is not

evident from the record that further deliberation would have been

futile, the original trial court's declaration of a mistrial was

not manifestly necessary under the circumstances.

The jury gave the district court no indication that it

was unable to reach a unanimous verdict before the verdict was

delivered; the jury's note to the court says only that it "[has]

concluded deliberations." After reviewing the verdict form, the

district court did not consult with counsel, remind the jury of

its obligation to reach a unanimous verdict or give an Allen

charge; or even ask the jurors whether they genuinely believed

they had reached an impasse. Instead, the district court merely

asked the individual members of the jury whether "this [is] your

verdict." (emphasis added).

Though we do not require the district court to take any

specific step before announcing the jury's verdict, we do require

something more than what the district court did here. See, e.g.,

Blueford,

; Renico, 559 U.S. at 775–76. At the

very least, we require the district court to consider other options

to ensure that the jury is genuinely deadlocked before discharging

it. See Toribio-Lugo,

; Garske,

-

35. Indeed, this obligation is heightened when, as here, the

stakes are life and death, and where both parties have a compelling

interest in a unanimous verdict. Jones,

(noting

- 27 - that, while the defendant always has a strong interest in a

unanimous verdict resolving the charges against him, "in a capital

sentencing proceeding, the Government has a strong interest in

having the jury express the conscience of the community over the

ultimate question of life or death" (internal quotations

omitted)).

The district court also did not give defense counsel a

meaningful opportunity to object before discharging the jury. The

record suggests that the parties were not aware of the fact that

the jury was not unanimous before the verdict was announced and

confirmed. The district court only addressed counsel after reading

and confirming the verdict in open court to ask if there was

"[a]nything else" before discharging the jury. Given the

circumstances, we cannot say that this was sufficient to protect

Candelario's right to object to the declaration of a mistrial.2

2 It is difficult to imagine a defendant in Candelario's shoes actually objecting to the district court's decision to discharge the jury. When the verdict was announced, Candelario was assured that he would not be sentenced to death. Had the jury been sent back for further deliberation, it is possible that the jury could have changed its mind and imposed the death penalty. Blueford v. Arkansas,

, 607–08 (2012). To be sure, a contemporaneous objection is required to preserve an issue for appeal. Strict mechanical application of the rule, however, would require a capital defendant to make what amounts to an impossible choice -- either to object to the mistrial and have the jury sent back, potentially to return a verdict of death, or to forfeit this objection and accept a life sentence. Cf. Sattazahn v. Pennsylvania,

(Ginsburg, J., dissenting) (expressing concern that the Court's holding "confronts defendants with a perilous choice . . . [A] defendant

- 28 - Taken together, then, the circumstances do not clearly

show that the jury was hopelessly deadlocked and that the district

court's decision to discharge the jury without a verdict was

manifestly necessary. Just as we cannot be sure that the jury

intended to unanimously reject the death penalty by selecting the

third option on the verdict form, we also cannot be sure that the

jury would not have reached a clear, unanimous verdict if it had

been given more time and further instruction.

We do know, however, that the original trial judge did

not give the jury that opportunity and took no steps to safeguard

either party's interest in a unanimous verdict once the jury began

deliberating. Nor did the trial court give Candelario a reasonable

opportunity to comment on the most appropriate path forward after

being informed that the jury was not unanimous. When these

circumstances are taken together, when the stakes are so high, we

cannot require a capital defendant to bear the consequences of the

resulting error or ambiguity. See Downum v. United States,

(1963) (noting that, in cases where a mistrial is

in Sattazahn's position must relinquish either her right to file a potentially meritorious appeal, or her state-granted entitlement to avoid the death penalty" (citing Green v. United States,

, 193–94 (1957) ("The law should not, and in our judgment does not, place the defendant in such an incredible dilemma."))). Nevertheless, because Candelario did not object, we still review the district court's decision to discharge the jury only for plain error.

- 29 - declared, courts must "resolve any doubt in favor of the liberty

of the citizen").

It also is clear that the error in discharging the jury

without clarifying the verdict "affected [Candelario's]

substantial rights" and "seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings" because of

the stakes involved. Puckett v. United States,

(2009) (quoting Olano,

) (second alteration in

original). "The awesome severity of a sentence of death makes it

qualitatively different from all other sanctions. . . . For this

reason, the Court has emphasized the greater need for reliability

in capital cases, and has required that capital proceedings be

policed at all stages by an especially vigilant concern for

procedural fairness and for the accuracy of factfinding."

Satterwhite, 486 U.S. at 262–63 (Marshall, J., concurring)

(citing, inter alia, Ramos, 463 U.S. at 998–99).

Thus, even if we accepted the government's position that

the original penalty-phase jury failed to agree unanimously on the

question of death, we cannot affirm. The district court order

that resulted in the present appeal was predicated on the

assumption that the initial penalty-phase jury was properly

discharged. Because this assumption is incorrect, the district

court's decision must be reversed.

- 30 - V. CONCLUSION

For the foregoing reasons, we reverse the decision of

the district court and remand with instructions to strike the

government's notice of intent to seek the death penalty in this

case.

- 31 -