                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 04-30521
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          CR-03-00191-FV
KENNETH SOUTHWELL,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Eastern District of Washington
        Fred L. Van Sickle, Chief Judge, Presiding

                 Argued and Submitted
         September 14, 2005—Seattle, Washington

                 Filed December 30, 2005

       Before: Arthur L. Alarcón, Alex Kozinski and
           Andrew J. Kleinfeld, Circuit Judges.

                Opinion by Judge Kozinski




                           16907
                UNITED STATES v. SOUTHWELL         16909


                       COUNSEL

Kimberly A. Deater, Federal Defenders of Eastern Washing-
ton and Idaho, Spokane, Washington, for the defendant-
appellant.
16910             UNITED STATES v. SOUTHWELL
James A. McDevitt, United States Attorney; Thomas O. Rice,
Assistant United States Attorney, Spokane, Washington, for
the plaintiff-appellee.


                          OPINION

KOZINSKI, Circuit Judge:

   We consider whether the district court’s failure to answer
the jury’s question during deliberations was an abuse of dis-
cretion and, if so, whether the defendant was prejudiced
thereby. To answer the latter question, we also decide whether
a jury must unanimously reject an affirmative defense before
it can find a defendant guilty.

                             Facts

  Kenneth Southwell was accused of starting a fire at the
Heart Seed Company of Fairfield, Washington, a company
with a significant interstate business, and was charged with
malicious use of a fire to damage property used in interstate
commerce. See 18 U.S.C. § 844(i). Southwell pleaded not
guilty and, in the alternative, not guilty by reason of insanity.

   Consistent with 18 U.S.C. § 17, the jury was instructed that
“[t]he defendant must prove insanity at the time [of the
offense] by clear and convincing evidence—that is, that it is
highly probable that the defendant was insane.” The jury was
also provided with the following verdict form: “We, the Jury,
find the defendant, Kenneth Southwell ________ (Guilty/Not
Guilty/Not Guilty Only by Reason of Insanity) of the charge
in the indictment.” The presiding juror was instructed to write
the jury’s unanimous verdict in the blank.

  The jury was also instructed as follows:
                 UNITED STATES v. SOUTHWELL                16911
    You may unanimously reach one of three verdicts:
    “guilty,” “not guilty,” or “not guilty only by reason
    of insanity.”

       If you unanimously find that the government has
    proven each element of the offense beyond a reason-
    able doubt, the presiding juror will write “guilty” on
    the verdict form.

      If you unanimously find that the government has
    not proven each element of the offense beyond a rea-
    sonable doubt, the presiding juror will write “not
    guilty” on the verdict form.

      If you unanimously find that the government has
    proven each element of the offense beyond a reason-
    able doubt, but unanimously agree that the defendant
    has shown by clear and convincing evidence that he
    was insane as defined in these instructions, then your
    presiding juror will write “not guilty only by reason
    of insanity” on the verdict form.

       When you have reached unanimous agreement as
    to your verdict, you will have your presiding juror
    fill in, date and sign the verdict form to state the ver-
    dict upon which you unanimously agree. You should
    then notify the Bailiff of the fact that you have
    reached a verdict, but not the nature of the verdict.
    You will then return with your verdict to the court-
    room.

       A verdict must represent the considered judgment
    of each juror. In order to return a verdict, it is neces-
    sary that each juror agree thereto. A verdict must be
    unanimous.

  On the second day of deliberations, the jury sent the fol-
lowing note to the court:
16912              UNITED STATES v. SOUTHWELL
    Can we find the defendant guilty if we unanimously
    conclude that the defendant:

        1.   Maliciously;

        2.   damaged or destroyed a building, or other real
             or personal property;

        3.   by means of fire; and

        4.   the building, or personal or real property was
             used in interstate or foreign commerce or in
             any activity affecting interstate or foreign
             commerce,

    but do not agree unanimously that the defendant was
    sane or insane?

   Southwell’s attorney asked the court to instruct the jury that
“no, they could not find the defendant guilty if they were not
unanimous on the issue of insanity.” Alternatively, defense
counsel proposed “a simple instruction from the Court that
they have to be unanimous on the insanity issues as well
before they could return a verdict.” As defense counsel
explained,

    In looking at [the above jury instruction], I think it’s
    possible for the jury to get the erroneous impression
    that they could find Mr. Southwell guilty if they
    agreed that the government met its burden on all the
    elements under [18 U.S.C. §] 844[(i)], but were still
    not unanimous when it came to the issue of whether
    or not Mr. Southwell was insane at the time.

   The district court saw matters otherwise, explaining that its
instructions on this point were “very clear.” Over defense
counsel’s objection, the court provided the following response
to the jury: “Please use your best recollection of the evidence
                    UNITED STATES v. SOUTHWELL                    16913
and the instructions of the law you have been given. If you are
able to reach a verdict, only one unanimous verdict may be
returned.”

   The next day, the jury returned a verdict of guilty. The dis-
trict court then polled the jury by asking “each of you who
had as your personal verdict the verdict of guilty as indicated
in the verdict form, please raise your hand, if this is, if this
verdict is your personal verdict.” All 12 jurors raised their
hands. The court rejected Southwell’s request for additional
polling to determine whether the jurors had unanimously
rejected the insanity defense. Southwell appeals his convic-
tion.

                             Discussion

   [1] “The necessity, extent and character of additional [jury]
instructions are matters within the sound discretion of the trial
court.” Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir.
1970) (per curiam). That discretion is abused, however, when
the district court fails to answer a jury’s question on a matter
that is not fairly resolved by the court’s instructions. Because
it is not always possible, when instructing the jury, to antici-
pate every question that might arise during deliberations, “the
district court has the responsibility to eliminate confusion
when a jury asks for clarification of a particular issue.” United
States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986); see also
Bollenbach v. United States, 326 U.S. 607, 612-13 (1946)
(“When a jury makes explicit its difficulties a trial judge
should clear them away with concrete accuracy.”). This the
district court failed to do.

   [2] Although the court’s instructions were not a model of
clarity,1 they did not misstate the law. Rather, the instructions
  1
   For example, the jury was instructed to reach “one of three verdicts,”
even though the jury could find Southwell guilty of having committed the
offense and not guilty by reason of insanity. The instructions failed to
16914               UNITED STATES v. SOUTHWELL
were unclear as to what the jury should do in the very situa-
tion outlined in the jury’s question—if the jurors “unani-
mously conclude[d] that the defendant” committed each
element of the offense, “but d[id] not agree unanimously that
the defendant was sane or insane.”

   The jury could reasonably have read the instructions one of
two ways in this situation. One way would have been to
declare itself deadlocked because they could not reach agree-
ment as to sanity. The other way would have been to return
a verdict of guilty because they did unanimously agree as to
guilt but could not agree whether defendant was insane—as
defense counsel pointed out to the district court. Neither result
is expressly sanctioned by the instructions nor is either result
precluded, which is doubtless why the jury requested a clarifi-
cation as to how they should proceed in these circumstances.

   [3] Rather than recognizing this ambiguity and providing a
supplementary instruction, the district court told the jurors to
“use your best recollection of the evidence and the instruc-
tions of the law you have been given. If you are able to reach
a verdict, only one unanimous verdict may be returned.”
However, for the reasons explained, the instructions did not
provide a clear answer—or any answer—to the question the
jury asked; thus referring the jury back to the instructions did
nothing to clear up the ambiguity. Failure to provide the jury
with a clarifying instruction when it has identified a legitimate
ambiguity in the original instructions is an abuse of discretion.

  [4] The error here was particularly serious because it con-
cerned the burden of proof. Southwell has a right under the
Constitution to a unanimous jury verdict. See United States v.

explain that a finding of not guilty by reason of insanity would supersede
its finding of guilt. We need not decide whether the original instructions
were deficient on account of this ambiguity because we find the district
court’s response to the jury’s question inadequate. See p. 16914 infra.
                  UNITED STATES v. SOUTHWELL                16915
Frega, 179 F.3d 793, 810 (9th Cir. 1999); United States v.
Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988). The failure to
properly instruct the jury on the unanimity requirement was
constitutional error, and requires reversal unless “the error
was harmless beyond a reasonable doubt.” United States v.
Pierre, 254 F.3d 872, 877 (9th Cir. 2001) (quoting United
States v. Chu, 988 F.2d 981, 985 (9th Cir. 1993) (quoting
United States v. Rubio-Villareal, 967 F.2d 294, 297 n.3 (9th
Cir. 1992) (en banc))).

   [5] Whether the error was harmless hinges on whether the
ambiguity cut for or against defendant. Thus, if the jury could
properly have convicted Southwell if it was unanimous on
guilt but divided as to sanity, then the failure to tell them so
would have been harmless. If, on the other hand, the jury had
to be unanimous both as to guilt and as to sanity, then defen-
dant would have been prejudiced because the jurors might
have returned a guilty verdict even though they could not
unanimously agree as to whether Southwell was insane. To
resolve the prejudice question, then, we must determine what
the court’s answer to the jury’s question should have been.

   [6] We are aware of no prior federal court having resolved
this issue. Although some members of the Supreme Court
have expressed opposing views, none commanded a majority
of the Court. Compare McKoy v. North Carolina, 494 U.S.
433, 450-51 (1990) (Blackmun, J., concurring) (“The dis-
sent’s analogy presumes that once the elements of an offense
have been proved, the jury’s failure to agree as to an affirma-
tive defense results in a conviction . . . but our cases do not
say that, and it is not at all clear that a conviction, rather than
a hung jury, would be the outcome.” (citing State v. Harris,
152 A.2d 106, 109 (R.I. 1959))); with id. at 467 n.4 (Scalia,
J., dissenting, joined by Rehnquist, C.J., and O’Connor, J.)
(“If the jurors follow their instructions, it would appear that
the jury that has considered but not unanimously found an
affirmative defense must return a verdict of guilty.”). Absent
controlling authority on point, we are guided by the numerous
16916             UNITED STATES v. SOUTHWELL
state courts that have considered this precise question, as well
as by prior federal courts that have considered, in the civil
context, whether an affirmative defense must be unanimously
rejected.

   [7] In State v. Miyashiro, 979 P.2d 85 (Haw. Ct. App.
1999), the Hawaii Intermediate Court of Appeals held that an
affirmative defense must be unanimously rejected before a
defendant can be found guilty:

    [I]f the jurors unanimously agreed that all the ele-
    ments of the charged offense have been proved
    beyond a reasonable doubt but are unable to reach
    unanimous agreement as to the affirmative defense
    of entrapment, no unanimous verdict can be reached
    as to the charged offense because some jurors would
    vote for conviction and others for acquittal. In such
    instance, a mistrial would have to be declared due to
    the hung jury.

Id. at 95; see also People v. McIntyre, 271 Cal. Rptr. 467, 469
(Cal. Ct. App. 1990) (“If the jury did not agree on entrapment,
there was a hung jury.”). This rationale applies equally to the
insanity defense: “The jury’s determination on an insanity
defense is as demanding of unanimity as is the determination
on the plea of not guilty. . . . If the jury could not agree upon
defendant’s sanity then no verdict could be reached.” Harris,
152 A.2d at 109; see also State v. Uyesugi, 60 P.3d 843, 857-
60 (Haw. 2002) (defendant’s statement “that before reaching
a guilty as charged verdict, rejection of the mental defense
must also be unanimous . . . sets forth a correct statement of
the law”) (internal quotation marks omitted). No state court,
so far as we are aware, has reached a contrary conclusion.

  [8] We have likewise held in the civil context that “a defen-
dant cannot be held liable until the jury unanimously rejects
an affirmative defense.” Jazzabi v. Allstate Ins. Co., 278 F.3d
979, 982-83 (9th Cir. 2002); see also Baxter Healthcare Corp.
                      UNITED STATES v. SOUTHWELL                     16917
v. Spectramed, Inc., 49 F.3d 1575, 1579-80, 1583-84 (Fed.
Cir. 1995) (affirming a district court’s refusal to enter judg-
ment for plaintiff on two special interrogatories setting forth
affirmative defenses when the jury did not unanimously agree
on answers to the interrogatories). As we explained in Jaz-
zabi, “elements and affirmative defenses are co-equal compo-
nents of the jury’s liability determination: Liability cannot be
established until after the jurors unanimously agree that the
elements are satisfied and they unanimously reject the affir-
mative defenses.” 278 F.3d at 984.

   [9] The same logic applies with at least equal force to affir-
mative defenses in criminal cases. If a juror finds that the gov-
ernment has proven each element of the offense beyond a
reasonable doubt, and also finds that the defendant has not
proven insanity by clear and convincing evidence, he must
find the defendant guilty. If another juror finds that the gov-
ernment has proven each element of the offense beyond a rea-
sonable doubt, but also finds that the defendant has proven
insanity by clear and convincing evidence, he must find the
defendant not guilty by reason of insanity.2 Since a jury ver-
dict must be unanimous, a jury united as to guilt but divided
as to an affirmative defense (such as insanity) is necessarily
a hung jury.
  2
   Contrary to Southwell’s assertion, insanity does not negate mens rea.
Were insanity a mens rea defense, the government would be required to
prove a defendant sane beyond a reasonable doubt. But 18 U.S.C. § 17
clearly makes insanity an affirmative defense, which the defendant must
prove by clear and convincing evidence:
      The government bears the burden of proving beyond a reasonable
      doubt that a defendant had the required specific intent to commit
      a charged crime, yet the defendant is required to prove the affir-
      mative defense of insanity by clear and convincing evidence.
      Moreover, a jury finding of “not guilty by reason of insanity”
      results in civil commitment proceedings, while a finding that
      mens rea is lacking results in acquittal.
United States v. Westcott, 83 F.3d 1354, 1359 (11th Cir. 1996) (internal
citation omitted).
16918                 UNITED STATES v. SOUTHWELL
   [10] The jurors asked the court whether they could convict
Southwell if they were unanimous on guilt but divided as to
sanity. For the reasons explained, the correct answer was
“no.” The district court’s failure to answer the jury’s question
left open the possibility that they convicted Southwell even
though they were divided as to sanity. Here, this is more than
a theoretical possibility, because we can infer from the jury’s
note that that’s where it stood at the time. It’s possible, of
course, that, after further deliberations, the jury did reach una-
nimity on the question of sanity. But nothing in the court’s
instructions required them to do so. It is therefore entirely
possible that the jury, faced with instructions that left the
issue open, interpreted them as permitting a guilty verdict
even though they were not unanimous as to sanity. In these
circumstances, we cannot say that the error was harmless
beyond a reasonable doubt. See Pierre, 254 F.3d at 877.

  [11] Had the district court granted defense counsel’s
motion to re-poll the jury, we would know whether the jurors
were unanimous both as to guilt and as to sanity.3 The district
court, however, refused and the court’s original polling asked
only whether the jury was unanimous as to guilt, but not
whether it was unanimous as to sanity. Because we have no
way of determining whether the jury was unanimous as to
  3
   At the time defense counsel made her request that the jury be re-polled
on the question of sanity, the jurors had just left the courtroom but had
been asked to remain in the jury room to wait for the judge. Because the
“jury remain[ed] as an undispersed unit within the control of the court and
with no opportunity to mingle with or discuss the case with others, it [was]
undischarged and [could] be recalled.” United States v. Marinari, 32 F.3d
1209, 1214 (7th Cir. 1994); see also Fed. R. Crim. P. 31(d) (defendant has
right to poll jury after they return a verdict but before they are discharged).
Our precedents are not to the contrary. See, e.g., United States v. Williams,
990 F.2d 507, 512-13 (9th Cir. 1993) (further polling not permitted once
jury has been discharged); United States v. Weiner, 578 F.2d 757, 764 (9th
Cir. 1978) (per curiam) (same). We note this only to point out that the
prejudice arising from the district court’s earlier abuse of discretion of not
answering the jury’s question could have been, but was not, corrected by
re-polling the jury.
                    UNITED STATES v. SOUTHWELL                    16919
sanity, we must reverse. See United States v. Garcia-Rivera,
353 F.3d 788, 792 (9th Cir. 2003) (reversing conviction
because the district court’s jury instructions were ambiguous
and the court’s failure to poll the jurors to see whether they
were confused resulted in a “questionable verdict”).

                             Conclusion

  We reverse the judgment of conviction and remand for a
new trial.

 REVERSED on the issues discussed in this opinion and
REMANDED.4




  4
   Because we reject Southwell’s other challenges to his conviction,
including sufficiency of the evidence, which are considered in a separate
memorandum disposition filed concurrently with this opinion, the defen-
dant may be retried.
