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 RebolloCasalduc, Francisco Rebollo-Casalduc Law Office, Kendys PimentelSoto, 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 
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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 18 U.S.C. § 1959, and nine counts of 

using a firearm during a crime of violence, in violation of 18 

U.S.C. § 924(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, 834 F.3d 8, 23 (1st Cir. 2016). We concluded 

that this courtroom closing constituted structural error and 

vacated his conviction. Id. at 24. On remand, now before a 

different district court judge, the government again notified the 
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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 drugtrafficking 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 coconspirators, 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 
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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 
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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 
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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 18 U.S.C. § 3593(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 
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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, 164 U.S. 492 (1896). 
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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, 834 F.3d at 21. 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. 

Id. at 23–24. This failure constituted structural error and 

entitled Candelario to a new trial. Id. 

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, 537 

U.S. 101 (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. 
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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., 546 U.S. 500, 514 (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, 431 U.S. 651, 656 (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." Id. at 658–59 (citing Cohen v. Beneficial Indus. 

Loan Corp., 337 U.S. 541, 546 (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. Id. at 660 (emphasis 

added); see also United States v. Keene, 287 F.3d 229, 232 (1st 

Cir. 2002). 
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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, 287 F.3d at 233 (citing United States v. Morris, 99 

F.3d 476, 478 (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. Id. 

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 
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233 (citing, inter alia, United States v. Pierro, 32 F.3d 611, 617 

(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, 507 U.S. 725, 731–32 (1993); 

United States v. Davis, 923 F.3d 228, 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, 137 S. Ct. 352, 363 (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, 457 U.S. 

31, 40–41 (1982) ("[T]he Double Jeopardy Clause [only] precludes 
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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, 537 U.S. 101 (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 
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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. Id. at 113. 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. Id. at 104-05. 

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

the district court properly concluded that the original penaltyphase 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, 376 F.3d 33, 39 (1st Cir. 2004) 

(quoting Keene, 287 F.3d at 234). 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, 432 U.S. 161, 165 (1977) (citing 

North Carolina v. Pearce, 395 U.S. 711, 717 (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, 524 U.S. 721, 728 (1998); Bullington v. 

Missouri, 451 U.S. 430, 438 (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 
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serve as "a stiffened penalty for the latest crime." Monge, 524 

U.S. at 728 (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, 536 U.S. 584, 589 (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, 530 U.S. 466 (2000))); 

Hurst v. Florida, 136 S. Ct. 616, 622 (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. 18 U.S.C. §§ 3591(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." 18 

U.S.C. § 3593(c). After hearing the evidence, the jury is required 

to return a special verdict detailing its findings and recommending 
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"by unanimous vote . . . whether the defendant shall be sentenced 

to death, to life imprisonment without possibility of release or 

some other lesser sentence." 18 U.S.C. § 3593(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 18 U.S.C. § 3553(a); the judge cannot, however, impose a 

sentence of death. See Jones v. United States, 527 U.S. 373, 380–

81 (1999) (interpreting 18 U.S.C. § 3594); United States v. 

Tsarnaev, 968 F.3d 24, 90 (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 id. at 41 

n.12 (same). 

Because this kind of proceeding is "comparable to a 

trial," double jeopardy applies. Arizona v. Rumsey, 467 U.S. 203, 

209 (1984) (citing Bullington, 451 U.S. at 438); see also Sampson 

v. United States (Sampson II), 724 F.3d 150, 160 (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 
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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, 537 U.S. at 108; 

see also Sampson v. United States (Sampson III), 832 F.3d 37, 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, 376 F.3d at 38 (citing, inter alia, Arizona v. 

Washington, 434 U.S. 497, 505 (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, 424 U.S. 600, 607–08 (1976) 

(explaining that "[d]ifferent considerations obtain, however, when 
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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, 400 U.S. 

470, 484 (1971) and United States v. Tateo, 377 U.S. 463, 467 

(1964))). 

Double jeopardy also does not bar reprosecution if "a 

mistrial was occasioned by manifest necessity." Toribio-Lugo, 376 

F.3d at 38 (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 

579–80 (1824)); see also United States v. Garske, 939 F.3d 321, 

328-29 (1st Cir. 2019), cert denied 140 S. Ct. 1121 (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, 287 F.3d at 233 ("[A]n appropriately declared 

mistrial does not insult principles of double jeopardy (and 

therefore, does not bar retrial)"); Washington, 434 U.S. at 506 

("[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-
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Lugo, 376 F.3d at 39 (citing Keene, 287 F.3d at 234). In doing 

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

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

reflection." Id. 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, 434 U.S. at 509; Keene, 287 F.3d at 233. 

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, 566 U.S. 599, 609 (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, 559 U.S. 766, 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 
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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, 559 U.S. at 775; see also Illinois v. Somerville, 410 

U.S. 458, 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, 355 U.S. 184, 191 (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, 537 U.S. 101. 

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

all the circumstances." Toribio-Lugo, 376 F.3d at 39 (citing 

Keene, 287 F.3d at 234). 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, 527 U.S. at 383; Tsarnaev, 968 F.3d at 92-93. 
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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 
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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 18 U.S.C. § 3594 (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 18 U.S.C. § 924(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 greaterincluded offense before considering the lesser-included charge. 

See State v. Davis, 266 S.W.3d 896, 905 (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." Id. at 906 (collecting cases). The difference 

between these two approaches is most consequential in the double 

jeopardy context because a defendant convicted of a lesserincluded 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, 572 F.2d 340, 346 (2d Cir. 1978); United States 

v. Jackson, 726 F.2d 1466, 1469 (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. 
- 24 - 

"for any term of years or for life"); but see 18 U.S.C. 

§ 1959(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, 968 F.3d at 122 

(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, 481 U.S. 279, 311, 319 (1987); see also Tsarnaev, 968 F.3d 

at 120 (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 
- 25 - 

v. Texas, 486 U.S. 249, 262 (1988) (Marshall, J., concurring); see 

also Caldwell v. Mississippi, 472 U.S. 320, 380 (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, 486 U.S. at 263 (Marshall, J., concurring) (citing, 

inter alia, California v. Ramos, 463 U.S. 992, 998–99 (1983)); see 

also Kyles v. Whitley, 514 U.S. 419, 411 (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, 483 U.S. 776, 785 (1987)); Tsarnaev, 968 F.3d at 61 

(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, 545 F.3d 916, 918 

(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 
- 26 - 

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

Alvarez-Guerrero v. Uttecht, 2016 WL 7241568 at *8 (W.D. Wash. 

Nov. 8, 2016) (same); cf. Albernaz v. United States, 450 U.S. 333, 

342 (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., 447 

U.S. 381, 387 (1980)). Surely, that consideration is heightened 

in a capital case. See Bucklew v. Percythe, 139 S. Ct. 1112, 1146 

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

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

(citing, inter alia, Nken v. Holder, 556 U.S. 418, 434 (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, 537 

U.S. at 108. 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 
- 27 - 

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, 566 U.S. at 609; 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, 376 F.3d at 38-39; Garske, 939 F.3d at 334-

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, 527 U.S. at 382 (noting 
- 28 - 

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, 566 U.S. 599, 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, 537 U.S. 101, 126 (Ginsburg, J., 

dissenting) (expressing concern that the Court's holding 

"confronts defendants with a perilous choice . . . [A] defendant 
- 29 - 

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, 372 

U.S. 734, 738 (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, 355 

U.S. 184, 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. 
- 30 - 

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, 556 U.S. 129, 135 

(2009) (quoting Olano, 507 U.S. at 736) (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. 
- 31 - 

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.