Sampson v. US

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [16-1727]

Case: 16-1727

Document: 00117038657

Page: 1

Date Filed: 08/04/2016

Entry ID: 6022959

United States Court of Appeals
For the First Circuit
No. 16-1727
GARY LEE SAMPSON,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.

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]

Before
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

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LYNCH, Circuit Judge.

Date Filed: 08/04/2016

Entry ID: 6022959

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
penalty-phase

argues

proceeding

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that

because

did

not

find

the

jury

in

unanimously

Entry ID: 6022959

his

first

that

the

government proved these two non-statutory aggravating factors
beyond a reasonable doubt, their introduction at the new penaltyphase 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.
I.
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.

§ 3593(a).
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

factors.

at

least

one

of

sixteen

statutory

aggravating

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,

statutory and non-statutory aggravating factors.

3

including

both

Id. § 3593(e).

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,

reasonable doubt,

statutory

or

non-statutory,

beyond

a

id. § 3593(c)–(d).

Sampson

pled

resulting in death.

guilty

to

both

charges

of

carjacking

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

against Sampson.
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.
banc was denied.

Sampson I, 486 F.3d at 52.

Rehearing en

United States v. Sampson, 497 F.3d 55, 56 (1st

Cir. 2007).
In

2009,

28 U.S.C. § 2255.

Sampson

petitioned

for

a

new

trial

under

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 nonstatutory 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.

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He was partially successful. As to the issues

on appeal, Sampson argued that the renewed allegations of the nonstatutory

aggravating

obstruction
retrial

and

of

factors

justice

violated

collateral-estoppel

of

future

the

Double

components.

dangerousness
Jeopardy
The

and

Clause's

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 nonstatutory 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.
II.
Appellate Jurisdiction
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."
653, 656 (1st Cir. 1993).
supervisory and advisory.
n.19 (1st Cir. 1994).

In re Pearson, 990 F.2d

There are two types of mandamus,

United States v. Horn, 29 F.3d 754, 769

"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.

is appropriate to exercise advisory mandamus here.

It

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.

2009).
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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of

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double-jeopardy

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precise

type

challenge

appeal.

Second, it is of high public importance.

Entry ID: 6022959

presented

in

this

"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

pragmatic benefits in this case.

review

now

offers

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.
narrow a view of systemic importance.
error in capital cases.

This is too

Federal courts often find

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

resentencing.

because

Sampson

can

But this misses the point.

raise

it

after

his

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.

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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.
III.
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.
110 (2009)).
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."

7

U.S.

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.

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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

constitutes

an

alleged

'acquittal'

jeopardy purposes."

of

by

that

the

prosecution

circumstance

for

always
double

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.
the

death

penalty

Quite the opposite -- the jury found

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).
the

556 U.S. at 833–34.

Court

held

that

a

And in Sattazahn v. Pennsylvania,

deadlocked

sentencing-jury

verdict

automatically resulting in a life sentence was not an "acquittal"
of the death penalty for double-jeopardy purposes.
109–110.

537 U.S. at

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

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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

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factors

as

an

Entry ID: 6022959

"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

significant under the FDPA."

factors

are

constitutionally

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.
530 U.S. at 476.

Apprendi,

Here the jury in the first instance did properly

find beyond a reasonable doubt that the death penalty should be
imposed.

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Our
FDPA,

nor

question
whether

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is

not

Date Filed: 08/04/2016

what

non-statutory

Apprendi

Entry ID: 6022959

requires

aggravating

of

factors

the
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"

question,

and

for

they

double-jeopardy

compel

rejection

of

purposes

control

Sampson's

the

argument.8

Because neither the original penalty-phase jury's verdict nor the
vacatur of Sampson's sentence constitutes an acquittal, doublejeopardy 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

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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 collateralestoppel 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 collateralestoppel argument.

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borderline

mental

Page: 20

retardation,"

Date Filed: 08/04/2016

which

served

as

a

Entry ID: 6022959

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."
835.

Id. at

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."
that

"[i]ssue

preclusion

cannot

Id.

The Court concluded

transform

sentencing phase into a partial victory."

Bies'

Id.

loss

at

the

The same is true

here.
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.

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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.

2010).
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 judgeand 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.
556 U.S. at 836–37.

See Bies,

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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estoppel

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requires

essential to the prior judgment.

Date Filed: 08/04/2016

a

determination

Entry ID: 6022959

that

is

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. BravoFernandez, 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.
determinations

at

See id. at 43, 48.
issue

in

In other words, the

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."
Delap.

This proposition is simply not so, and misconstrues

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

(first-degree

convicted

of

premeditation),

and

murder
the

on

trial

one
judge

theory
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

Bullington, 451 U.S. at 443).

case."

Id.

at

313

(quoting

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."
case

Delap's

Id. at 314.

acquittal

of

The court emphasized that "in this
felony

murder

occurred

guilt/innocence phase of his first trial."

during

the

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

inapposite.
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

necessary to the decision actually rendered."

the

issue

was

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.
non-statutory

aggravating

factors

were

not

Entry ID: 6022959

Because the

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

collateral

estoppel

sentencing

context.

clear

apply

with

Sampson's

that

the

full

core

force

argument

requirements
in

fails

the
to

of

capital-

meet

those

requirements.
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 penaltyphase proceeding.
IV.
The order of the district court is affirmed.

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