by Douglas Ankney

The U.S. Court of Appeals for the First Circuit ruled that the Government is barred – on double jeopardy grounds – from seeking the death penalty at the retrial of Alexis Candelario-Santana because the jury’s verdict that did not impose the death sentence at Candelario’s first trial was ambiguous, and the U.S. District Court for the District of Puerto Rico prematurely declared a mistrial.

Candelario was indicted on numerous charges, including 18 murder-related charges for his role in a mass shooting that killed nine people. The Government sought the death penalty on 16 of the 18 charges. A jury convicted him on all counts.

The trial moved to the penalty phase. The Federal Death Penalty Act (“FDPA”) requires the jury to return a special verdict. 18 U.S.C. § 3593(d). After one day of deliberation, the jury informed the court it had “concluded deliberations” and presented the jury form to the judge. The form revealed the jury (1) unanimously found Candelario was death eligible and that the Government had proven nine aggravating factors, (2) that one or more members had found 12 mitigating factors, and (3) they were unable to come to agreement on the issue of punishment and “under[stood] that the Court w[ould] impose a sentence of life imprisonment without the possibility of release.”

Upon receiving the verdict form, the district court announced the jury’s decision without informing counsel that the jury wasn’t unanimous. The district court asked each member of the jury “is this your verdict?” Each juror responded in the affirmative. The district court then discharged the jury without giving an Allen v. United States, 164 U.S. 492 (1896), charge, i.e., didn’t inform counsel of the jury’s non-unanimous decision prior to announcing verdict.

In August 2013, Candelario was sentenced to life imprisonment. His conviction was reversed on appeal because the trial court had ordered that the courtroom be closed during the testimony of one witness without making the prerequisite finding that the closing was necessary to protect the witness’ safety, and this error violated Candelario’s right to a public trial.

On remand, the Government again notified the district court of its intent to seek the death penalty. Candelario moved to strike the notice of intent on double jeopardy grounds. The district court denied the motion, reasoning that the jurors’ inability to reach a unanimous verdict regarding punishment during the penalty phase of the first trial meant the court had declared a mistrial when it discharged the jury. Because the jury didn’t affirmatively reject or repudiate the death penalty, the Government wasn’t precluded on double jeopardy grounds from seeking the death penalty at retrial. Thus, the district court denied Candelario’s motion, and he took an interlocutory appeal.

The sole question on appeal was “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 subsequent penalty phase,” the Court stated.

The Court observed that double jeopardy protections of the Fifth Amendment ordinarily do not attach to sentencing proceedings but only protect against a second prosecution for the same offense after an acquittal or conviction and against multiple punishments for the same offense. Monge v. California, 524 U.S. 721 (1998); Brown v. Ohio, 432 U.S. 161 (1977). But the death penalty is an exception. Arizona v. Rumsey, 467 U.S. 203 (1984). The penalty phase of a trial under the FDPA requires the jury to make unanimous findings as to whether the defendant is death eligible, unanimously find whether there are aggravating factors, and make a unanimous finding as to the punishment. 18 U.S.C. § 3593(e). The district court is then bound by the jury’s verdict. And if the jury is unable to make any of these unanimous findings, the district judge imposes punishment up to natural life in prison based on the sentencing factors of 18 U.S.C. 3553(a), but the judge cannot impose a sentence of death. Jones v. United States, 527 U.S. 373 (1999). Because these procedures are comparable to a trial, protections against double jeopardy are triggered. Rumsey.

And those protections apply the same as they would in any other criminal proceeding, e.g., if a jury imposes a sentence of death the government may seek death at a retrial, but if the jury imposes life imprisonment, the government is barred by the Double Jeopardy Clause from seeking death on retrial. Sampson v. United States, 724 F.3d 150 (1st Cir. 2013). But when the jury fails to reach a unanimous verdict and there is a retrial, the court’s inquiry focuses on whether that failure constituted an “acquittal” based on findings sufficient to establish a legal entitlement to a life sentence. Sattazahn v. Pennsylvania, 537 U.S. 101 (2003). And that inquiry is comparable to the one conducted when a district court declares a mistrial. If a mistrial is declared where the defendant requested or consented to it, double jeopardy does not bar reprosecution. United States v. Dinitz, 424 U.S. 600 (1976). Also, double jeopardy does not bar reprosecution if a mistrial was caused by manifest necessity, e.g., the jury was genuinely deadlocked. United States v. Garske, 939 F.3d 321 (1st Cir. 2019).

But in reviewing a district court’s decision declaring a mistrial based upon a deadlocked jury, the First Circuit considers whether the district court explored other options, gave counsel the opportunity to object, and acted only after sufficient reflection. United States v. Toribio-Lugo, 376 F.3d 33 (1st Cir. 2004). Double jeopardy does bar retrial on a particular charge when the jury was dismissed without returning an express verdict on the charge and without the defendant’s consent even though the jury had a full opportunity to return a verdict and there were no extraordinary circumstances to prevent it from doing so. Green v. United States, 355 U.S. 184 (1957). When a mistrial is declared, courts must resolve any doubts in favor of the liberty of the citizen. Downum v. United States, 372 U.S. 734 (1963). These principles apply with the same force to the penalty phase of a capital trial. Sattazahn.

In the instant case, the record didn’t clearly reflect that the jury was genuinely deadlocked. The district court failed to make any inquiry, give an Allen charge, inform counsel of its decision to discharge the jury and allow opportunity for objections, or give due reflection to the jury’s answers on the form, the Court determined.

Further, the jury’s answers on the form supported three possible positions: (1) the jury was deadlocked as to whether to impose the death penalty, so it chose the third option; (2) the jury unanimously rejected the death penalty and wanted a life sentence imposed; or (3) the jury unanimously rejected the death sentence but couldn’t unanimously decide on whether life or some other lesser sentence should be imposed. These ambiguities left considerable doubts because if options 2 or 3 accurately reflected the verdict, then double jeopardy bars the Government from again seeking the death penalty.

The Court concluded that because the district court prematurely dismissed the jury and because the jury’s verdict was ambiguous, double jeopardy bars the Government from seeking the death penalty at the retrial.

Accordingly, the Court reversed the decision of the district court and remanded with instructions to strike the Government’s notice of intent to seek the death penalty. See: United States v. Candelario-Santana, 977 F.3d 146 (1st Cir. 2020). 

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