FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30521 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00191-FV

KENNETH SOUTHWELL,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, Chief Judge, Presiding

Argued and Submitted

September 14, 2005—Seattle, Washington

Filed December 30, 2005

Before: Arthur L. Alarcón, Alex Kozinski and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Kozinski

16907
COUNSEL

Kimberly A. Deater, Federal Defenders of Eastern Washington and Idaho, Spokane, Washington, for the defendantappellant. 

UNITED STATES v. SOUTHWELL 16909
James A. McDevitt, United States Attorney; Thomas O. Rice,

Assistant United States Attorney, Spokane, Washington, for

the plaintiff-appellee.

OPINION

KOZINSKI, Circuit Judge: 

We consider whether the district court’s failure to answer

the jury’s question during deliberations was an abuse of discretion and, if so, whether the defendant was prejudiced

thereby. To answer the latter question, we also decide whether

a jury must unanimously reject an affirmative defense before

it can find a defendant guilty. 

Facts

Kenneth Southwell was accused of starting a fire at the

Heart Seed Company of Fairfield, Washington, a company

with a significant interstate business, and was charged with

malicious use of a fire to damage property used in interstate

commerce. See 18 U.S.C. § 844(i). Southwell pleaded not

guilty and, in the alternative, not guilty by reason of insanity.

Consistent with 18 U.S.C. § 17, the jury was instructed that

“[t]he defendant must prove insanity at the time [of the

offense] by clear and convincing evidence—that is, that it is

highly probable that the defendant was insane.” The jury was

also provided with the following verdict form: “We, the Jury,

find the defendant, Kenneth Southwell ________ (Guilty/Not

Guilty/Not Guilty Only by Reason of Insanity) of the charge

in the indictment.” The presiding juror was instructed to write

the jury’s unanimous verdict in the blank. 

The jury was also instructed as follows: 

16910 UNITED STATES v. SOUTHWELL
You may unanimously reach one of three verdicts:

“guilty,” “not guilty,” or “not guilty only by reason

of insanity.” 

If you unanimously find that the government has

proven each element of the offense beyond a reasonable doubt, the presiding juror will write “guilty” on

the verdict form. 

If you unanimously find that the government has

not proven each element of the offense beyond a reasonable doubt, the presiding juror will write “not

guilty” on the verdict form. 

If you unanimously find that the government has

proven each element of the offense beyond a reasonable doubt, but unanimously agree that the defendant

has shown by clear and convincing evidence that he

was insane as defined in these instructions, then your

presiding juror will write “not guilty only by reason

of insanity” on the verdict form. 

When you have reached unanimous agreement as

to your verdict, you will have your presiding juror

fill in, date and sign the verdict form to state the verdict upon which you unanimously agree. You should

then notify the Bailiff of the fact that you have

reached a verdict, but not the nature of the verdict.

You will then return with your verdict to the courtroom. 

A verdict must represent the considered judgment

of each juror. In order to return a verdict, it is necessary that each juror agree thereto. A verdict must be

unanimous. 

On the second day of deliberations, the jury sent the following note to the court: 

UNITED STATES v. SOUTHWELL 16911
Can we find the defendant guilty if we unanimously

conclude that the defendant: 

1. Maliciously; 

2. damaged or destroyed a building, or other real

or personal property; 

3. by means of fire; and 

4. the building, or personal or real property was

used in interstate or foreign commerce or in

any activity affecting interstate or foreign

commerce, 

but do not agree unanimously that the defendant was

sane or insane? 

Southwell’s attorney asked the court to instruct the jury that

“no, they could not find the defendant guilty if they were not

unanimous on the issue of insanity.” Alternatively, defense

counsel proposed “a simple instruction from the Court that

they have to be unanimous on the insanity issues as well

before they could return a verdict.” As defense counsel

explained, 

In looking at [the above jury instruction], I think it’s

possible for the jury to get the erroneous impression

that they could find Mr. Southwell guilty if they

agreed that the government met its burden on all the

elements under [18 U.S.C. §] 844[(i)], but were still

not unanimous when it came to the issue of whether

or not Mr. Southwell was insane at the time. 

The district court saw matters otherwise, explaining that its

instructions on this point were “very clear.” Over defense

counsel’s objection, the court provided the following response

to the jury: “Please use your best recollection of the evidence

16912 UNITED STATES v. SOUTHWELL
and the instructions of the law you have been given. If you are

able to reach a verdict, only one unanimous verdict may be

returned.” 

The next day, the jury returned a verdict of guilty. The district court then polled the jury by asking “each of you who

had as your personal verdict the verdict of guilty as indicated

in the verdict form, please raise your hand, if this is, if this

verdict is your personal verdict.” All 12 jurors raised their

hands. The court rejected Southwell’s request for additional

polling to determine whether the jurors had unanimously

rejected the insanity defense. Southwell appeals his conviction. 

Discussion

[1] “The necessity, extent and character of additional [jury]

instructions are matters within the sound discretion of the trial

court.” Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir.

1970) (per curiam). That discretion is abused, however, when

the district court fails to answer a jury’s question on a matter

that is not fairly resolved by the court’s instructions. Because

it is not always possible, when instructing the jury, to anticipate every question that might arise during deliberations, “the

district court has the responsibility to eliminate confusion

when a jury asks for clarification of a particular issue.” United

States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986); see also

Bollenbach v. United States, 326 U.S. 607, 612-13 (1946)

(“When a jury makes explicit its difficulties a trial judge

should clear them away with concrete accuracy.”). This the

district court failed to do. 

[2] Although the court’s instructions were not a model of

clarity,1 they did not misstate the law. Rather, the instructions

1For example, the jury was instructed to reach “one of three verdicts,”

even though the jury could find Southwell guilty of having committed the

offense and not guilty by reason of insanity. The instructions failed to

UNITED STATES v. SOUTHWELL 16913
were unclear as to what the jury should do in the very situation outlined in the jury’s question—if the jurors “unanimously conclude[d] that the defendant” committed each

element of the offense, “but d[id] not agree unanimously that

the defendant was sane or insane.” 

The jury could reasonably have read the instructions one of

two ways in this situation. One way would have been to

declare itself deadlocked because they could not reach agreement as to sanity. The other way would have been to return

a verdict of guilty because they did unanimously agree as to

guilt but could not agree whether defendant was insane—as

defense counsel pointed out to the district court. Neither result

is expressly sanctioned by the instructions nor is either result

precluded, which is doubtless why the jury requested a clarification as to how they should proceed in these circumstances.

[3] Rather than recognizing this ambiguity and providing a

supplementary instruction, the district court told the jurors to

“use your best recollection of the evidence and the instructions of the law you have been given. If you are able to reach

a verdict, only one unanimous verdict may be returned.”

However, for the reasons explained, the instructions did not

provide a clear answer—or any answer—to the question the

jury asked; thus referring the jury back to the instructions did

nothing to clear up the ambiguity. Failure to provide the jury

with a clarifying instruction when it has identified a legitimate

ambiguity in the original instructions is an abuse of discretion.

[4] The error here was particularly serious because it concerned the burden of proof. Southwell has a right under the

Constitution to a unanimous jury verdict. See United States v.

explain that a finding of not guilty by reason of insanity would supersede

its finding of guilt. We need not decide whether the original instructions

were deficient on account of this ambiguity because we find the district

court’s response to the jury’s question inadequate. See p. 16914 infra. 

16914 UNITED STATES v. SOUTHWELL
Frega, 179 F.3d 793, 810 (9th Cir. 1999); United States v.

Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988). The failure to

properly instruct the jury on the unanimity requirement was

constitutional error, and requires reversal unless “the error

was harmless beyond a reasonable doubt.” United States v.

Pierre, 254 F.3d 872, 877 (9th Cir. 2001) (quoting United

States v. Chu, 988 F.2d 981, 985 (9th Cir. 1993) (quoting

United States v. Rubio-Villareal, 967 F.2d 294, 297 n.3 (9th

Cir. 1992) (en banc))). 

[5] Whether the error was harmless hinges on whether the

ambiguity cut for or against defendant. Thus, if the jury could

properly have convicted Southwell if it was unanimous on

guilt but divided as to sanity, then the failure to tell them so

would have been harmless. If, on the other hand, the jury had

to be unanimous both as to guilt and as to sanity, then defendant would have been prejudiced because the jurors might

have returned a guilty verdict even though they could not

unanimously agree as to whether Southwell was insane. To

resolve the prejudice question, then, we must determine what

the court’s answer to the jury’s question should have been. 

[6] We are aware of no prior federal court having resolved

this issue. Although some members of the Supreme Court

have expressed opposing views, none commanded a majority

of the Court. Compare McKoy v. North Carolina, 494 U.S.

433, 450-51 (1990) (Blackmun, J., concurring) (“The dissent’s analogy presumes that once the elements of an offense

have been proved, the jury’s failure to agree as to an affirmative defense results in a conviction . . . but our cases do not

say that, and it is not at all clear that a conviction, rather than

a hung jury, would be the outcome.” (citing State v. Harris,

152 A.2d 106, 109 (R.I. 1959))); with id. at 467 n.4 (Scalia,

J., dissenting, joined by Rehnquist, C.J., and O’Connor, J.)

(“If the jurors follow their instructions, it would appear that

the jury that has considered but not unanimously found an

affirmative defense must return a verdict of guilty.”). Absent

controlling authority on point, we are guided by the numerous

UNITED STATES v. SOUTHWELL 16915
state courts that have considered this precise question, as well

as by prior federal courts that have considered, in the civil

context, whether an affirmative defense must be unanimously

rejected. 

[7] In State v. Miyashiro, 979 P.2d 85 (Haw. Ct. App.

1999), the Hawaii Intermediate Court of Appeals held that an

affirmative defense must be unanimously rejected before a

defendant can be found guilty: 

[I]f the jurors unanimously agreed that all the elements of the charged offense have been proved

beyond a reasonable doubt but are unable to reach

unanimous agreement as to the affirmative defense

of entrapment, no unanimous verdict can be reached

as to the charged offense because some jurors would

vote for conviction and others for acquittal. In such

instance, a mistrial would have to be declared due to

the hung jury.

Id. at 95; see also People v. McIntyre, 271 Cal. Rptr. 467, 469

(Cal. Ct. App. 1990) (“If the jury did not agree on entrapment,

there was a hung jury.”). This rationale applies equally to the

insanity defense: “The jury’s determination on an insanity

defense is as demanding of unanimity as is the determination

on the plea of not guilty. . . . If the jury could not agree upon

defendant’s sanity then no verdict could be reached.” Harris,

152 A.2d at 109; see also State v. Uyesugi, 60 P.3d 843, 857-

60 (Haw. 2002) (defendant’s statement “that before reaching

a guilty as charged verdict, rejection of the mental defense

must also be unanimous . . . sets forth a correct statement of

the law”) (internal quotation marks omitted). No state court,

so far as we are aware, has reached a contrary conclusion. 

[8] We have likewise held in the civil context that “a defendant cannot be held liable until the jury unanimously rejects

an affirmative defense.” Jazzabi v. Allstate Ins. Co., 278 F.3d

979, 982-83 (9th Cir. 2002); see also Baxter Healthcare Corp.

16916 UNITED STATES v. SOUTHWELL
v. Spectramed, Inc., 49 F.3d 1575, 1579-80, 1583-84 (Fed.

Cir. 1995) (affirming a district court’s refusal to enter judgment for plaintiff on two special interrogatories setting forth

affirmative defenses when the jury did not unanimously agree

on answers to the interrogatories). As we explained in Jazzabi, “elements and affirmative defenses are co-equal components of the jury’s liability determination: Liability cannot be

established until after the jurors unanimously agree that the

elements are satisfied and they unanimously reject the affirmative defenses.” 278 F.3d at 984. 

[9] The same logic applies with at least equal force to affirmative defenses in criminal cases. If a juror finds that the government has proven each element of the offense beyond a

reasonable doubt, and also finds that the defendant has not

proven insanity by clear and convincing evidence, he must

find the defendant guilty. If another juror finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven

insanity by clear and convincing evidence, he must find the

defendant not guilty by reason of insanity.2 Since a jury verdict must be unanimous, a jury united as to guilt but divided

as to an affirmative defense (such as insanity) is necessarily

a hung jury. 

2Contrary to Southwell’s assertion, insanity does not negate mens rea.

Were insanity a mens rea defense, the government would be required to

prove a defendant sane beyond a reasonable doubt. But 18 U.S.C. § 17

clearly makes insanity an affirmative defense, which the defendant must

prove by clear and convincing evidence: 

The government bears the burden of proving beyond a reasonable

doubt that a defendant had the required specific intent to commit

a charged crime, yet the defendant is required to prove the affirmative defense of insanity by clear and convincing evidence.

Moreover, a jury finding of “not guilty by reason of insanity”

results in civil commitment proceedings, while a finding that

mens rea is lacking results in acquittal. 

United States v. Westcott, 83 F.3d 1354, 1359 (11th Cir. 1996) (internal

citation omitted). 

UNITED STATES v. SOUTHWELL 16917
[10] The jurors asked the court whether they could convict

Southwell if they were unanimous on guilt but divided as to

sanity. For the reasons explained, the correct answer was

“no.” The district court’s failure to answer the jury’s question

left open the possibility that they convicted Southwell even

though they were divided as to sanity. Here, this is more than

a theoretical possibility, because we can infer from the jury’s

note that that’s where it stood at the time. It’s possible, of

course, that, after further deliberations, the jury did reach unanimity on the question of sanity. But nothing in the court’s

instructions required them to do so. It is therefore entirely

possible that the jury, faced with instructions that left the

issue open, interpreted them as permitting a guilty verdict

even though they were not unanimous as to sanity. In these

circumstances, we cannot say that the error was harmless

beyond a reasonable doubt. See Pierre, 254 F.3d at 877. 

[11] Had the district court granted defense counsel’s

motion to re-poll the jury, we would know whether the jurors

were unanimous both as to guilt and as to sanity.3 The district

court, however, refused and the court’s original polling asked

only whether the jury was unanimous as to guilt, but not

whether it was unanimous as to sanity. Because we have no

way of determining whether the jury was unanimous as to

3At the time defense counsel made her request that the jury be re-polled

on the question of sanity, the jurors had just left the courtroom but had

been asked to remain in the jury room to wait for the judge. Because the

“jury remain[ed] as an undispersed unit within the control of the court and

with no opportunity to mingle with or discuss the case with others, it [was]

undischarged and [could] be recalled.” United States v. Marinari, 32 F.3d

1209, 1214 (7th Cir. 1994); see also Fed. R. Crim. P. 31(d) (defendant has

right to poll jury after they return a verdict but before they are discharged).

Our precedents are not to the contrary. See, e.g., United States v. Williams,

990 F.2d 507, 512-13 (9th Cir. 1993) (further polling not permitted once

jury has been discharged); United States v. Weiner, 578 F.2d 757, 764 (9th

Cir. 1978) (per curiam) (same). We note this only to point out that the

prejudice arising from the district court’s earlier abuse of discretion of not

answering the jury’s question could have been, but was not, corrected by

re-polling the jury. 

16918 UNITED STATES v. SOUTHWELL
sanity, we must reverse. See United States v. Garcia-Rivera,

353 F.3d 788, 792 (9th Cir. 2003) (reversing conviction

because the district court’s jury instructions were ambiguous

and the court’s failure to poll the jurors to see whether they

were confused resulted in a “questionable verdict”).

Conclusion

We reverse the judgment of conviction and remand for a

new trial. 

REVERSED on the issues discussed in this opinion and

REMANDED.

4

4Because we reject Southwell’s other challenges to his conviction,

including sufficiency of the evidence, which are considered in a separate

memorandum disposition filed concurrently with this opinion, the defendant may be retried. 

UNITED STATES v. SOUTHWELL 16919