          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
            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.


                                    - 2 -
           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.

                                     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.


                                    - 3 -
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   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).


                                       - 4 -
"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

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


                                            - 5 -
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

Cir. 2007).

          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?


                                 - 6 -
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


                                   - 7 -
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


                                      - 8 -
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."      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


                                  - 9 -
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.

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


                                    - 10 -
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))).


                                   - 11 -
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.


                                 - 12 -
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.

                                  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."         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.


                                 - 13 -
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




                                     - 14 -
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


                                     - 15 -
"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


                                     - 16 -
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

imposed.




                                      - 17 -
              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.


                                                - 18 -
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.


                                 - 19 -
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

here.

             The two non-statutory aggravating factors rejected by

the first penalty-phase jury were not necessary to Sampson's death


                                  - 20 -
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.

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 judge-

and jury-made determinations, nor any distinction based on the




                                  - 21 -
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


                               - 22 -
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.


                                   - 23 -
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-


                                          - 24 -
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

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    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


                                     - 25 -
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

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


                                         - 26 -
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-

phase proceeding.

                               IV.

          The order of the district court is affirmed.




                             - 27 -
