United States v. Kenneth Southwell

We consider whether the district court’s failure to answer the jury’s question during deliberations was an abuse of discretion 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®. 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…