United States Court of Appeals For the First Circuit
GARY LEE SAMPSON,
UNITED STATES OF AMERICA,
PETITION FOR A WRIT OF MANDAMUS TO AND APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Lynch, Selya, and Lipez, Circuit Judges.
Paul Mogin, with whom William E. McDaniels, Jennifer G. Wicht, Williams & Connolly LLP, Michael Burt, Law Office of Michael Burt, Danalynn Recer, and Gulf Region Advocacy Center were on brief, for appellant. Mark T. Quinlivan, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
August 4, 2016
LYNCH, Circuit Judge. Gary Lee Sampson pled guilty in
September 2003 to two counts of the crime of carjacking resulting
in death. In December 2003, following a penalty-phase trial, a
jury sentenced Sampson to death under the Federal Death Penalty
Act ("FDPA") for those crimes. See 18 U.S.C. §§ 3591–3599. His
death sentence was later vacated due to jury taint, and his case
returned to the district court for further proceedings. The
government filed an amended notice that it sought the death
penalty. That notice listed the factors that in its view justified
the death penalty, largely tracking the original notice. Sampson
challenged several aspects of that notice.
Sampson now both petitions for a writ of mandamus, and
appeals from an order by the district court denying his motion in
limine to dismiss or strike two non-statutory aggravating factors
the prosecution intends to present in a second penalty-phase
proceeding under the FDPA.1 Those factors, which were also
included in the original notice, are: (1) future dangerousness,
and (2) obstruction of justice by means of murder to conceal the
theft and attempted theft of victims' automobiles. The new
penalty-phase trial is scheduled to start on September 14, 2016.
We have expedited this appeal.
1 The term "appeal" hereinafter refers to Sampson's arguments before this court generally, including his arguments for granting mandamus and his arguments on the merits.
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Sampson argues that because the jury in his first
penalty-phase proceeding did not find unanimously that the
government proved these two non-statutory aggravating factors
beyond a reasonable doubt, their introduction at the new penalty-
phase proceeding is barred by the Double Jeopardy Clause of the
Constitution, including its collateral-estoppel component. Under
Supreme Court precedent, Sampson's claims must be rejected. We
affirm the district court's order.
The facts of the case are familiar from earlier opinions,
and we recite only those relevant to this appeal. See United
States v. Sampson (Sampson I), 486 F.3d 13 (1st Cir. 2007); United
States v. Sampson (Sampson II), 820 F. Supp. 2d 151 (D. Mass.
2011); United States v. Sampson (Sampson III), 820 F. Supp. 2d 202
(D. Mass. 2011); United States v. Sampson (Sampson IV), 58 F. Supp.
3d 136 (D. Mass. 2012); Sampson v. United States (Sampson V), 724
F.3d 150 (1st Cir. 2013).2
Sampson murdered three people over the course of a week
in 2001. He murdered Philip McCloskey in Massachusetts on July
24, 2001, and attempted to steal McCloskey's car; murdered Jonathan
2 This reproduces the sequence and labeling of Sampson decisions in Sampson V, 724 F.3d at 154, and adds Sampson V to that sequence.
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Rizzo in Massachusetts and stole Rizzo's car on July 27; and
murdered Robert Whitney in New Hampshire on July 30.
On August 8, 2002, a grand jury, in a second superseding
indictment, indicted Sampson on two counts of carjacking resulting
in death. The government then filed a notice of intent to seek
the death penalty, as required by the FDPA. See 18 U.S.C.
Under the FDPA, after the government has filed a notice
of intent to seek the death penalty, the criminal trial divides
into two phases, one focused on guilt (the "guilt phase") and the
other on sentencing (the "penalty phase"). See id. § 3593(b). If
the defendant is convicted of a predicate capital offense in the
guilt phase, the government then must prove beyond a reasonable
doubt in the penalty phase that the defendant was at least 18 years
old, committed one of four acts with the requisite mental state,3
and committed at least one of sixteen statutory aggravating
factors. Id. §§ 3591(a), 3592(c), 3593(c)–(d).
If the government satisfies these prerequisites and
proves that the defendant is eligible for death, the jury must
decide whether death is justified by weighing any proven mitigating
factors with the proven aggravating factors, including both
statutory and non-statutory aggravating factors. Id. § 3593(e).
3 Alternatively, the government may prove that the defendant engaged in espionage or treason. See id. § 3591(a)(1).
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"The term 'non-statutory aggravating factor' is used to 'refer to
any aggravating factor that is not specifically described in 18
U.S.C. § 3592.'" Sampson I, 486 F.3d at 44 n.14 (quoting Jones v.
United States, 527 U.S. 373 , 378 n.2 (1999)). The jury must submit
special findings on any aggravating factors, 18 U.S.C. § 3593(d),
and must find unanimously that the government has proven any
aggravating factors, statutory or non-statutory, beyond a
reasonable doubt, id. § 3593(c)–(d).
Sampson pled guilty to both charges of carjacking
resulting in death. The first penalty-phase hearing followed. At
the close of the penalty phase, the jury found unanimously for the
death penalty. For each count, the jury submitted a special
verdict form that contained separate findings on each alleged
statutory and non-statutory aggravating factor. The jury's
special verdict form stated that it found unanimously that the
government had proven two statutory aggravating factors and a
number of non-statutory aggravating factors for each charge
Pertinent to this appeal, the jury did not find
unanimously that the government had proven beyond a reasonable
doubt two alleged non-statutory aggravating factors, future
dangerousness and murder to obstruct justice, for either charge.4
4 Specifically, for both Count 1 ("Carjacking Resulting in the Death of Philip McCloskey") and Count 2 ("Carjacking Resulting
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That is, the unanimity requirement had not been met as to those
two factors. It is from this circumstance that Sampson constructs
his argument in this appeal.
After being sentenced to death, Sampson appealed, and
this panel affirmed. Sampson I, 486 F.3d at 52. Rehearing en
banc was denied. United States v. Sampson, 497 F.3d 55 , 56 (1st
In 2009, Sampson petitioned for a new trial under
28 U.S.C. § 2255. The district court, finding that a juror had
lied during the voir dire process in answering questions about her
ability to be impartial, Sampson II, 820 F. Supp. 2d at 192–97,
vacated Sampson's sentence, id. at 202. The government appealed,
in the Death of Jonathan Rizzo"), the jury checked "1 or More Jurors Say No" on the special verdict form in response to the following two non-statutory aggravating factors (represented here by the Count 1 factors): Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, murdered Philip McCloskey for the sole or primary purpose of preventing him from reporting the attempted theft of his automobile to authorities? Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of prison officials and inmates as demonstrated by his history of prison misconduct?
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and we took jurisdiction and affirmed on the basis of juror
misconduct. Sampson V, 724 F.3d at 170.
We further held that the juror's lies during voir dire
concealed significant evidence of bias that would have provided
grounds to excuse her for cause. Id. at 168. We held that Sampson
"was deprived of the right to an impartial jury and is entitled to
a new penalty-phase hearing." Id. The case returned to the
district court for further proceedings in 2013.
In March 2014, the government filed an amended notice of
intent to seek the death penalty. The amended notice again alleged
for both counts of Sampson's conviction, inter alia, the two non-
statutory aggravating factors -- that (1) Sampson is "likely to
commit criminal acts of violence in the future" and pose a danger
to prison officials and inmates ("future dangerousness"); and (2)
that Sampson murdered Philip McCloskey and Jonathan Rizzo "to
prevent [the victims] from reporting the carjacking[s] to
authorities" ("murder to obstruct justice") -- which the original
sentencing jury found that the government failed to prove beyond
a reasonable doubt to the satisfaction of all jurors. The amended
notice also stated that the government would use new evidence from
Sampson's conduct in prison from 2004 to the present in order to
prove future dangerousness.
On May 15, 2015, Sampson moved to dismiss or strike a
number of the statutory and non-statutory aggravating factors from
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the amended notice. He was partially successful. As to the issues
on appeal, Sampson argued that the renewed allegations of the non-
statutory aggravating factors of future dangerousness and
obstruction of justice violated the Double Jeopardy Clause's
retrial and collateral-estoppel components. The government
opposed the motion.
The district court denied the motion to dismiss or strike
the two non-statutory aggravating factors. It held that the Double
Jeopardy Clause does not preclude alleging the non-statutory
factors at the new penalty-phase hearing because the original
penalty-phase jury's findings on those factors did not constitute
an "acquittal." And it held that the factors are not barred by
the collateral-estoppel component of the Double Jeopardy Clause,
because "the jury verdict was tainted by a juror who lied about
her ability to be impartial," and because the jury's rejection of
the factors was "not essential to the judgment of death."
Sampson then moved for a certificate of appealability
under 28 U.S.C. § 2253(c). The district court, citing Abney v.
United States, 431 U.S. 651 , 662, 659 (1977), reasoned that its
rejection of Sampson's motion to dismiss or strike the two non-
statutory aggravating factors was a "pretrial order rejecting
[a] claim of former jeopardy," and so was one of the "small class
of cases that [are] beyond the confines of the final-judgment
rule." The district court granted Sampson's motion and issued a
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certificate of appealability on the following question: "Whether
the Double Jeopardy Clause bars the government, at Sampson's new
penalty phase hearing, from seeking to prove two non-statutory
aggravating factors which the jury at Sampson's first penalty phase
hearing found had not been proven beyond a reasonable doubt."
Sampson then filed this timely appeal.
Before reaching the merits of Sampson's appeal, we must
satisfy ourselves that we have jurisdiction to hear it. The
government disputes that we have jurisdiction, but argues that we
may skip that analysis in favor of a merits analysis. Sampson
argues, among other things, that we should exercise the mandamus
power available to us under the All Writs Act, 28 U.S.C. § 1651(a).
We conclude that, whether or not we have statutory jurisdiction,
we at least have and will exercise advisory mandamus jurisdiction.
The All Writs Act provides that "all courts established
by Act of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages
and principles of law." Id. "[M]andamus must be used sparingly
and only in extraordinary situations." In re Pearson, 990 F.2d
653 , 656 (1st Cir. 1993). There are two types of mandamus,
supervisory and advisory. United States v. Horn, 29 F.3d 754 , 769
n.19 (1st Cir. 1994). "The former is used when an appellate court
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issues the writ to correct an established trial court practice
that significantly distorts proper procedure," id., whereas the
latter is used in "cases . . . that present novel questions of
great significance which, if not immediately addressed, are likely
to recur and to evade effective review," United States v. Green,
407 F.3d 434 , 439 (1st Cir. 2005). "We typically exercise
[advisory mandamus] to settle substantial questions of law when
doing so would give needed guidance to lawyers, litigants, and
lower courts." Sampson V, 724 F.3d at 159.
We exercised advisory mandamus jurisdiction in the prior
appeal to address the juror misconduct issue. Id. at 159–61. It
is appropriate to exercise advisory mandamus here. Sampson's
appeal meets all of the stringent requirements for its "strong
medicine." In re Sony BMG Music Entm't, 564 F.3d 1 , 4 (1st Cir.
First, the issue, as framed, is novel.5 As Sampson
notes, neither this court nor the Supreme Court has passed on the
5 See In re Justices of Superior Court Dep't of Mass. Trial Ct., 218 F.3d 11 , 16 (1st Cir. 2000) (advisory mandamus appropriate because the "availability of pretrial federal habeas relief for 'disinterested prosecutor' claims [was] an issue of first impression" implicating "greater issues of federalism"); Horn, 29 F.3d at 770 (advisory mandamus appropriate for the question of whether sovereign immunity bars federal court's order of attorneys' fees and costs against government in criminal case because "[t]he issue presented ha[d] never before been squarely decided"); In re Globe Newspaper Co., 920 F.2d 88 , 90 (1st Cir. 1990) (advisory mandamus warranted to decide "novel and important" question of press access to jury list (quoting In re Globe
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precise type of double-jeopardy challenge presented in this
appeal. Second, it is of high public importance. "Like the right
to trial by jury, [the guarantee against double jeopardy] is
clearly 'fundamental to the American scheme of justice.'" Benton
v. Maryland, 395 U.S. 784 , 796 (1969) (quoting Duncan v. Louisiana,
391 U.S. 145 , 149 (1968)). Third, as we emphasized when we
exercised advisory mandamus to affirm the district court's vacatur
of Sampson's sentence for jury taint, an already significant legal
question is even more so in the context of a capital case, because
"death is  different." Sampson V, 724 F.3d at 159 (alteration
in original) (quoting Gardner v. Florida, 430 U.S. 349 , 357 (1977)
(plurality opinion)). Fourth, exercising review now offers
pragmatic benefits in this case. As Sampson notes, and as the
district court observed, deferring review of the district court's
rejection of his double-jeopardy challenge presents risks of a
third penalty trial. Incurring the pain inflicted by a third trial
is to be avoided, if not needed.
The government essentially concedes that the appeal
raises novel questions of public importance, that exercising
mandamus would offer significant pragmatic benefits, and that it
"undoubtedly would provide needed guidance to the district court,
the lawyers, and litigants in this case." The government rests
Newspaper Co., 729 F.2d 47 , 50 (1st Cir. 1984))).
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its argument against advisory mandamus instead on an assertion
that the issue raised in the appeal will not "almost certainly
recur," Green, 407 F.3d at 440, and that it will not evade review.
The government's point is that FDPA cases are extremely
rare in this circuit -- Sampson's was the first FDPA conviction
that we reviewed, see Sampson I, 486 F.3d at 176 -- and the
particular issue in this appeal will arise even less frequently,
making it implausible to consider the question in the appeal
"systemically important," In re Sony, 564 F.3d at 4. This is too
narrow a view of systemic importance. Federal courts often find
error in capital cases. See Glossip v. Gross, 135 S. Ct. 2726 ,
2759 (2015) (Breyer, J., dissenting). Similar double-jeopardy
challenges to subsidiary determinations by a sentencing jury in
capital cases may well recur.
The government argues that the question presented will
not evade review because Sampson can raise it after his
resentencing. But this misses the point. The double-jeopardy
challenge here asserts that Sampson should not have to defend once
more against the two non-statutory aggravating factors at issue.
Postponing review of the double-jeopardy challenge until after the
second penalty-phase proceeding will frustrate the appeal's
central assertion: that Sampson should not have to defend against
6 This court also has pending the appeal in United States v. Tsarnaev (No. 16-6001), another death-penalty case.
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these particular allegations again. The claim would evade review
because one of the most important protections of the Double
Jeopardy Clause would be lost. Abney, 431 U.S. at 662.
Sampson's appeal satisfies the stringent requirements of
advisory mandamus, and we take jurisdiction.
Double Jeopardy and Collateral Estoppel
Where, as here, an appeal raises "constitutional
questions 'such as the district court's denial of a motion to
dismiss . . . on the grounds of double jeopardy and collateral
estoppel,'" our review is de novo. United States v. Lanoue, 137
F.3d 656 , 661 (1st Cir. 1998) (alteration in original) (quoting
United States v. Aguilar-Aranceta, 957 F.2d 18 , 21 (1st Cir. 1992),
overruled on other grounds by Yeager v. United States, 557 U.S.
Sampson argues that the government's re-allegation of
the non-statutory aggravating factors of future dangerousness and
murder to obstruct justice violates the Double Jeopardy Clause.7
The Clause provides: "[N]or shall any person be subject for the
same offence to be twice put in jeopardy of life or limb." U.S.
7 Sampson also argued to the trial court that the future dangerousness factor was unconstitutionally unreliable and vague, and that the law of the case barred relitigating future dangerousness and murder to obstruct justice. Those issues are not before this court.
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Const. amend. V. He contends that the jury's special verdict on
the two non-statutory aggravating factors is an "acquittal" for
double-jeopardy purposes, and also that the collateral-estoppel
component of the Double Jeopardy Clause bars relitigating the two
factors. Neither argument is persuasive. We address each in turn.
A. The "Acquittal" Argument
The Supreme Court has explained that "the touchstone for
double-jeopardy protection in capital-sentencing proceedings is
whether there has been an 'acquittal.'" Sattazahn v. Pennsylvania,
537 U.S. 101 , 109 (2003). In the context of aggravating
circumstances at sentencing, the Court "reject[s] the . . . premise
. . . that a capital sentencer's failure to find a particular
aggravating circumstance alleged by the prosecution always
constitutes an 'acquittal' of that circumstance for double
jeopardy purposes." Poland v. Arizona, 476 U.S. 147 , 155 (1986).
Instead, an "acquittal" in the capital sentencing context turns on
"whether the sentencer or reviewing court has 'decided that the
prosecution has not proved its case' that the death penalty is
appropriate." Id. (quoting Bullington v. Missouri, 451 U.S. 430 ,
443 (1981)); see also Bobby v. Bies, 556 U.S. 825 , 833–34 (2009).
If the decision being examined does not meet the standard of an
acquittal, then the "clean slate" rule applies, Bullington, 451
U.S. at 443, and the defendant "constitutionally may be subjected
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to whatever punishment is lawful, subject only to the limitation
that he receive credit for time served," id. at 442.
The earlier penalty-phase jury's decision in Sampson's
case is not an acquittal. Quite the opposite -- the jury found
the death penalty justified, despite also finding that the
government had not proven two non-statutory aggravating factors
beyond a reasonable doubt to all members of the jury.
The Supreme Court has been clear that the "concern with
protecting the finality of acquittals is not implicated when . . .
a defendant is sentenced to death, i.e., 'convicted.' There is no
cause to shield such a defendant from further litigation; further
litigation is the only hope he has." Poland, 476 U.S. at 156. In
Bobby v. Bies, the Court likewise held that there was no acquittal
for double-jeopardy purposes where the original jury imposed the
death sentence despite the presence of the mitigating factor of
mental retardation, and a new hearing on the defendant's mental
capacity was held in light of Atkins v. Virginia, 536 U.S. 304
(2002). 556 U.S. at 833–34. And in Sattazahn v. Pennsylvania,
the Court held that a deadlocked sentencing-jury verdict
automatically resulting in a life sentence was not an "acquittal"
of the death penalty for double-jeopardy purposes. 537 U.S. at
109–110. The Court has been consistent in a variety of different
factual circumstances. See also Bullington, 451 U.S. at 444–45
(verdict of life imprisonment in sentencing proceeding that
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"explicitly requires the jury to determine whether the prosecution
has 'proved its case'" for death is an acquittal of the death
penalty for double-jeopardy purposes).
Double jeopardy clearly does not apply here. See Evans
v. Michigan, 133 S. Ct. 1069 , 1075 (2013) (contrasting substantive
rulings that trigger double jeopardy, including rulings that go to
insufficiency of evidence, or guilt and innocence, with procedural
rulings "that 'are unrelated to factual guilt or innocence,'" such
as "'a legal judgment that a defendant, although criminally
culpable, may not be punished' because of some problem like an
error with the indictment," and which do not trigger double
jeopardy (quoting United States v. Scott, 437 U.S. 82 , 98 & n.11
(1978))). Our vacation of Sampson's original death-penalty
sentence on Sixth Amendment grounds based on juror misconduct does
not change this analysis. That decision rested on the basis that
a juror had improperly withheld material information to get on the
jury, and "had nothing to do with either the sufficiency of the
evidence or [Sampson's] guilt or innocence." United States v.
Szpyt, 785 F.3d 31 , 37–38 (1st Cir. 2015), cert. denied, 136 S.
Ct. 800 (2016). Sampson was not acquitted, and the Double Jeopardy
Clause is not triggered.
Sampson tries to marshal quotes from case law at the
periphery of double-jeopardy jurisprudence in an effort to
construe the original penalty-phase jury's determinations on the
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non-statutory aggravating factors as an "acquittal." In
particular, he points to Apprendi v. New Jersey, 530 U.S. 466
(2000), and cases interpreting it, to suggest an "expanding" of
"the concept of 'acquittal,'" and to argue that "non-statutory as
well as statutory aggravating factors are constitutionally
significant under the FDPA." Sampson cites various non-binding
decisions from other courts, see, e.g., State v. Sawatzky, 125
P.3d 722 , 726 (Or. 2005) (en banc), as well as non-precedential
dicta from a Supreme Court plurality opinion, Sattazahn, 537 U.S.
at 110–12 (plurality opinion), that have reasoned from Apprendi to
hold or suggest that double-jeopardy protections apply to jury
determinations on sentencing enhancements even if there was never
an acquittal on the death penalty. And he provides various cases
discussing the relationship between the FDPA and Apprendi, as well
as the FDPA and the Confrontation Clause, in an attempt to
demonstrate the evolving "constitutional significance" of FDPA
non-statutory aggravating factors.
But Apprendi is not a double-jeopardy case; its holding
concerns what must be submitted to, and found to be proven beyond
a reasonable doubt by, a jury in the first instance. Apprendi,
530 U.S. at 476. Here the jury in the first instance did properly
find beyond a reasonable doubt that the death penalty should be
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Our question is not what Apprendi requires of the
FDPA, nor whether non-statutory aggravating factors are
"constitutionally significant," but rather whether relitigating
two non-statutory aggravating factors found not proven by an
earlier penalty-phase jury is barred by the Double Jeopardy Clause.
The Supreme Court's cases squarely addressing the question of what
is an "acquittal" for double-jeopardy purposes control the
question, and they compel rejection of Sampson's argument.8
Because neither the original penalty-phase jury's verdict nor the
vacatur of Sampson's sentence constitutes an acquittal, double-
jeopardy principles do not prevent the government from alleging
again the two non-statutory aggravating factors.
B. The Collateral-Estoppel Argument
Sampson argues at greater length that collateral
estoppel, which "is embodied in the Fifth Amendment guarantee
against double jeopardy," Ashe v. Swenson, 397 U.S. 436 , 445
(1970), bars the relitigation of the two non-statutory aggravating
8 Sampson argues that Roper v. Simmons, 543 U.S. 551 (2005), "indicates" that a lower court may depart from controlling Supreme Court precedent when it addresses "issues implicating the Eighth Amendment." Whatever Roper's implications for stare decisis in the Eighth Amendment capital punishment context -- an issue we do not address today -- we know of no support for such a proposition in the context of the Double Jeopardy Clause, and Sampson provides none.
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factors.9 His argument again runs directly against Supreme Court
precedent, and fares no better than his "acquittal" argument.10
As the Supreme Court explained in Bies, issue
preclusion, also known as collateral estoppel, "bars successive
litigation of 'an issue of fact or law' that 'is actually litigated
and determined by a valid and final judgment, and . . . is essential
to the judgment.'" 556 U.S. at 834 (alteration in original)
(quoting Restatement (Second) of Judgments § 27 (1980)). The Bies
Court emphasized that "[a] determination ranks as necessary or
essential only when the final outcome hinges on it." Id. at 835
(citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice &
Procedure § 4421, at 543 (2d ed. 2002)).
The Bies Court found that the issue for which collateral
estoppel had been claimed -- evidence of the defendant's "mild to
9 One might wonder why, if a Fifth Amendment Double Jeopardy Clause argument that there was an acquittal on the merits fails, as a matter of logic there is still a double-jeopardy claim available to make. No party makes an issue of this and both accept the analytical structure presented by Sampson, so we have done so as well. We conclude that Bies, Sattazahn, and Poland resolve this question against Sampson. 10 The district court rejected Sampson's collateral- estoppel argument on two grounds. It held that, because the penalty-phase jury's verdict was vacated for juror bias, the penalty-phase verdict does not have any preclusive effect. And it held that collateral estoppel did not apply because "the rejection of [the non-statutory aggravating factors] was not essential to the judgment of death." Because we find the latter rationale sufficient to dispose of the issue, it is unnecessary to address the effect of the vacatur for jury bias on Sampson's collateral- estoppel argument.
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borderline mental retardation," which served as a mitigating
factor in the original jury's sentencing deliberations, id. at 828
-- failed to meet this standard, id. at 835. The defendant had
been sentenced to death by the original jury, and that sentence
was affirmed on review by the Ohio appellate courts, with the Ohio
Supreme Court "observ[ing] that Bies' 'mild to borderline mental
retardation merit[ed] some weight in mitigation,' but conclud[ing]
that 'the aggravating circumstances outweigh[ed] the mitigating
factors beyond a reasonable doubt.'" Id. at 828 (second and fourth
alterations in original) (quoting State v. Bies, 658 N.E.2d 754 ,
761-62 (Ohio 1996)).
The Bies Court reasoned that "it [was] clear that the
[Ohio] courts' statements regarding Bies' mental capacity were not
necessary to the judgments affirming his death sentence." Id. at
835. The Court held that the Sixth Circuit, which found that
collateral estoppel did apply to the issue of the defendant's
retardation, erred by "conflat[ing] a determination necessary to
the bottom-line judgment with a subsidiary finding that, standing
alone, is not outcome determinative." Id. The Court concluded
that "[i]ssue preclusion cannot transform Bies' loss at the
sentencing phase into a partial victory." Id. The same is true
The two non-statutory aggravating factors rejected by
the first penalty-phase jury were not necessary to Sampson's death
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sentence. Indeed, "[f]ar from being necessary to the judgment,"
the jury's failure to find unanimously that the government proved
the two non-statutory aggravating factors beyond a reasonable
doubt, like the retardation mitigating factor in Bies, "cuts
against [the judgment] -- making [it] quintessentially the kind
of ruling not eligible for issue-preclusion treatment." Id.
(quoting Bies v. Bagley, 535 F.3d 520 , 533 (6th Cir. 2008) (Sutton,
J., dissenting from denial of rehearing en banc)). And at least
one other federal court has come to the same conclusion: that
collateral estoppel does not bar the introduction at a second
penalty-phase proceeding of non-statutory aggravating factors
presented to, and not found proven by, an earlier penalty-phase
jury. United States v. Stitt, 760 F. Supp. 2d 570 , 584 (E.D. Va.
Sampson attempts unsuccessfully to distinguish Bies. He
first observes that "the prior determination [in Bies] . . . was
made by a court in an opinion" (emphasis omitted), whereas the
prior determinations in this case "were made by a jury in special
findings" (emphasis omitted). He contrasts the "spare statements"
reviewed in Bies, 556 U.S. at 834, with the more elaborate process
of the special findings at issue here. But the collateral-estoppel
principle articulated in Bies makes no distinction between judge-
and jury-made determinations, nor any distinction based on the
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procedure for making the determination -- it focuses on whether
the determination was necessary to the prior judgment.
Sampson also argues that unlike here, where the issues
being relitigated are legally identical to issues in the prior
determination, the issue in the second proceeding in Bies --
whether, under the rule announced in Atkins, the defendant's
retardation rendered him ineligible for the death penalty --
involved a legal principle that was new and different from the
prior determination. He argues that the Court noted that novelty
as another basis for not finding collateral estoppel. See Bies,
556 U.S. at 836–37. But the Court made the observation that this
would be an alternative ground to reject the collateral-estoppel
argument "even if the core requirements for issue preclusion had
been met," id. at 836; its essential point was that, as here, those
core requirements were not present.
All of Sampson's other purported distinctions11 share the
same flaw. They do not affect the principle articulated in Bies
11 Sampson argues that here, unlike in Bies, there was "every incentive" to fully litigate the non-statutory aggravating factors; that the non-statutory factors must be proven beyond a reasonable doubt under the FDPA, unlike the Ohio mitigating factors at issue in Bies; that the appeal in Bies, unlike Sampson's, "was governed by the limitations on federal habeas review of state judgments"; and that Bies involved a "second run at vacating [the defendant's] death sentence," 556 U.S. at 834 (quoting Bagley, 535 F.3d at 531 (Sutton, J., dissenting from denial of rehearing en banc)), and "not an effort by the State to retry him or to increase his punishment," id. The government correctly notes that none of these distinctions is material to the collateral-estoppel
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that collateral estoppel requires a determination that is
essential to the prior judgment. That principle dictates that we
reject Sampson's collateral-estoppel argument. There is simply no
way the two non-statutory aggravating factors at issue here were
essential to the first jury's death sentence.12
Sampson further contends that a number of other
decisions of federal courts provide alternative analyses that
support his collateral-estoppel claim. They do not. He relies on
language in this court's decision in United States v. Bravo-
Fernandez, 790 F.3d 41 (1st Cir. 2015), cert. granted, 136 S. Ct.
1491 (2016), including that collateral-estoppel claims "must be
set in a practical frame and viewed with an eye to all the
circumstances of the proceedings," id. at 46 (quoting Ashe, 397
U.S. at 444), and that "if a review of [the record of the prior
proceeding] shows that a 'rational jury,' as a practical matter,
decided adversely to the government an issue to be relitigated in
the new prosecution, then the defendant gets the benefit of
collateral estoppel," id. But that language comes from an inquiry
principles articulated by the Bies Court and the Second Restatement of Judgments. 12 The government admitted at oral argument that as a matter of logic its position is that a sentencing jury's determinations on non-statutory aggravating factors can never be essential to the judgment in an FDPA case, because non-statutory aggravating factors are neither necessary to nor sufficient for the imposition of the death penalty under the FDPA.
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into the preclusive effect of acquittals on an attempt to prove
various facts in a retrial of vacated convictions arising from the
same split verdict. See id. at 43, 48. In other words, the
determinations at issue in Bravo-Fernandez were potentially
necessary to the prior judgment; the determinations that Sampson
attacks could not have been.
Sampson's reliance on Delap v. Dugger, 890 F.2d 285 (11th
Cir. 1989), abrogated on other grounds by Floyd v. Sec'y, Fla.
Dep't of Corr., 638 F. App'x 909 , 924 (11th Cir. 2016) (per curiam)
(citing Fry v. Pliler, 551 U.S. 112 , 119–20 (2007), and Brecht v.
Abrahamson, 507 U.S. 619 , 631 (1993)) is equally misplaced. He
argues that the case illustrates "that an impact on the express
terms of a judgment is not an absolute prerequisite for collateral
estoppel." This proposition is simply not so, and misconstrues
Delap. Delap, in any event, does not control our decision. Delap
was decided in 1989, 27 years ago, and well before Sattazahn and
Bies, the Supreme Court cases that dictate our holding.
Delap concerned a trial in which the prosecution pursued
multiple theories of guilt on one count of murder. The defendant
was convicted of murder on one theory (first-degree
premeditation), and the trial judge found that there was
insufficient evidence to convict the defendant on a theory that
the murder was committed during a felony. 890 F.2d at 308–12.
The Eleventh Circuit first held that the insufficiency-of-the-
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evidence finding on the theory that there was a concomitant felony
constituted an acquittal, because the finding "decide[d] that the
prosecution has not proved its case." Id. at 313 (quoting
Bullington, 451 U.S. at 443). It then asked whether the felony
murder acquittal as to guilt "bar[red on retrial] a finding that
the murder occurred during the commission of a felony so as to
constitute an aggravating factor justifying imposition of the
death penalty." Id. at 314. The court emphasized that "in this
case Delap's acquittal of felony murder occurred during the
guilt/innocence phase of his first trial." Id. at 318. It
distinguished and said that it "need not address what collateral
estoppel effect, if any, would result had the jury at the
sentencing phase of Delap's first trial concluded that he had not
committed murder during the course of a felony." Id. Sampson
pled guilty, and his challenge concerns the collateral-estoppel
effect of one sentencing-phase determination on another. Delap is
As we explained in Manganella v. Evanston Ins. Co., 700
F.3d 585 (1st Cir. 2012), another case Sampson cites: "We do not
ask whether the resolution of an issue was necessary to reach the
same outcome; rather, the inquiry is whether the issue was
necessary to the decision actually rendered." Id. at 594. By
that standard, his argument fails: the non-statutory aggravating
factors simply could not have been "necessary to the decision
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actually rendered." Id.; see Bies, 556 U.S. at 835. Because the
non-statutory aggravating factors were not necessary to the
determination of his original death sentence, the government may
relitigate them at the new penalty-phase proceeding.
In the end, Sampson's argument is that there should be
a more relaxed standard for collateral-estoppel claims in the
context of capital sentencing. But the Supreme Court's scrupulous
doctrinal reliance on the Second Restatement of Judgments in Bies,
556 U.S. at 834, makes clear that the core requirements of
collateral estoppel apply with full force in the capital-
sentencing context. Sampson's argument fails to meet those
Finally, Sampson makes a vague "Eighth Amendment values"
argument trying to strengthen his collateral-estoppel position.
He emphasizes the general principle that "[the Supreme] Court has
demanded that factfinding procedures aspire to a heightened
standard of reliability," Ford v. Wainwright, 477 U.S. 399 , 411
(1986) (plurality opinion), and argues from it that "[r]eliability
could only be impaired by allowing prosecutors multiple
opportunities to pursue particular aggravating factors." The
argument cannot save a double-jeopardy claim when the claim fails
on its own terms.
The district court correctly ruled that it would not
strike the government's notice of intended use of the non-statutory
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aggravating factors of future dangerousness and murder to obstruct
justice because the earlier jury's findings were not an acquittal,
nor were they essential to the jury's death sentence. The Double
Jeopardy Clause does not bar the government from alleging those
non-statutory aggravating factors again at Sampson's new penalty-
The order of the district court is affirmed.
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