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New Orleans, LA - Criminal defense lawyer represented defendants with the June 2014 prison murder of Leo Johns charge.

Fackrell has several previous convictions, including convictions for
aggravated assault, robbery, and possession of a prohibited object. His prison
record denotes several instances of misconduct including fights and property
damage. He was also charged with the murder of a second inmate three
months after Johns’s death.
As to Johns’s murder, Fackrell argued that he and Cramer only agreed
to assault Johns. Johns had been drinking and gambling in violation of SAC
rules, and Cramer determined that he needed to be punished. Fackrell and
Cramer took shanks into Johns’s cell and stabbed him. Fackrell argues that
he stabbed Johns but left the cell before he died and that Cramer “finished
Johns off.”
At trial, Fackrell’s defense was that he neither intended to kill nor
killed Johns. Instead, Fackrell argued that he was present while Cramer killed
Johns, that Cramer ordered him to participate in the assault, and that they
only planned to “touch up [Johns] a little bit.” The jury rejected Fackrell’s
defense and found him guilty of first-degree murder.
During the penalty phase of trial, Fackrell’s mitigating evidence
centered on his childhood. His father was an alcoholic and his mother was
often working to support the family. They frequently moved around, and
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Fackrell was bullied and abused by his father and brothers. He began
drinking, using drugs, and committing crimes with his family when he was
between 10 and 14 years old.
Fackrell’s other mitigating evidence centered on his mental health
diagnoses and ability to be reformed in structured environments like that of
USP Florence-ADMAX (“ADX”), a maximum-security prison in Florence,
Colorado. Fackrell was sent to ADX to await trial for Johns’s murder.
Though individual jurors found that Fackrell had proven some
mitigating factors, the jury sentenced him to death.
2. Cramer
Christopher Cramer was Fackrell’s co-defendant at trial and
sentencing. He has prior convictions for bank robbery and use of a firearm in
relation to a crime of violence. He also has committed several instances of
prison misconduct including assaults on other inmates.
At trial, Cramer’s defense to Johns’s murder was that he only
intended to assault Johns and did not intend to kill him. He argued that his
previous visits to Johns’s cell on the day of Johns’s murder indicated that he
lacked the intent to kill Johns. The jury rejected his argument and convicted
him of first-degree murder.
At sentencing, Cramer’s mitigating evidence focused on his
dysfunctional childhood and his ability to be safely housed at ADX. Cramer
had a difficult upbringing—his mother was a prostitute and a drug addict; his
father was a pimp and a drug dealer. His family moved frequently and slept
in cars and parks. Due to his parents’ absence, Cramer had to care for his
younger siblings. He stole food to feed them and “was his siblings’ hero.”
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His other mitigation evidence centered on ADX’s ability to safely
house him if he was sentenced to life. He argued that he was unlikely to ever
leave a maximum-security prison given the severity of his crimes.
Both Defendants were convicted of first-degree murder and
sentenced to death. They now appeal their convictions and sentences.
II. DISCUSSION
Fackrell and Cramer argue that the Government and the district court
committed numerous errors at trial and at sentencing. We review each
alleged error in turn.
A. Severance
Prior to trial, Fackrell and Cramer moved to sever. Fackrell requested
separate trials, while Cramer requested separate trials, separate penaltyphase presentations, and separate penalty-phase juries. Both argue that the
district court erred by denying their motions to sever. We disagree.
We review the denial of a motion forseverance for abuse of discretion.
United States v. Rocha, 916 F.2d 219, 227 (5th Cir. 1990).
“Under Rule 14, ‘[i]f the joinder of offenses or defendants in an
indictment . . . appears to prejudice a defendant or the government, the court
may order separate trials of counts, sever the defendants’ trials, or provide
any other relief that justice requires.’” United States v. Snarr, 704 F.3d 368,
396 (5th Cir. 2013) (alteration in original) (quoting FED. R. CRIM. P. 14).
Even if prejudice is shown, severance is not required. Zafiro v. United
States, 506 U.S. 534, 538–39 (1993). The district court still has discretion to
grant relief. Id. at 539. “Severance is proper ‘only if there is a serious risk that
a joint trial would compromise a specific trial right of one of the defendants
or prevent the jury from making a reliable judgment about guilt or
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innocence.’” United States v. Mitchell, 484 F.3d 762, 775 (5th Cir. 2007)
(quoting Zafiro, 506 U.S. at 539).
1. Fackrell’s severance arguments
Fackrell argues that the joint trial prejudiced his rights at the guilt
phase because the Government introduced Cramer’s statements that
implicate Fackrell in Johns’s murder. Cramer told his cellmate that Fackrell
volunteered to go to Johns’s cell, that Fackrell jumped Johns from behind,
and that he and Fackrell killed Johns. The Government introduced the
statements under Federal Rule of Evidence 801(d)(2)(A), and Fackrell
argues that the statements were prejudicial, lacked reliability, and would not
have been introduced against him if he were tried separately.
He also argues that the joint trial prejudiced him during the penalty
phase because it allowed Defendants to be conflated, their mitigation cases
to be compared, and Cramer’s personality disorder and prison assault history
to be introduced.
Fackrell’s arguments are unpersuasive. Cramer’s statements are not
so prejudicial as to be an abuse of the trial court’s discretion in admitting
them. His statements were not given in a custodial context, voiding any
suspicion of unreliability present in other cases. See United States v. Ebron,
683 F.3d 105, 133 (5th Cir. 2012). Furthermore, Cramer’s statements likely
could have been introduced against Fackrell even in a separate trial as a
statement against interest under Federal Rule of Evidence 804(b)(3).
Rule 14 does not mandate severance in any case, including capital
trials. See FED. R. CRIM. P. 14. The introduction of Cramer’s previous
offenses, mental health history, and mitigation case was not so prejudicial as
to curtail the district court’s discretion to deny severance. Ample evidence
of each defendant’s criminal histories and prison misconduct isin the record,
and mere surplusage of this evidence does not compel severance. See United
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States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002) (“A spillover effect,
by itself, is an insufficient predicate for a motion to sever.”). Nor did the joint
trial deny Defendants the right to individualized sentencing under Lockett v.
Ohio, 438 U.S. 586 (1978). Any conflating of the Defendants or the evidence
against each of them was remedied by the district court’s instructions, and
we “must presume that the jury heard, understood, and followed the district
court’s instructions.” United States v. Bernard, 299 F.3d 467, 476 (5th Cir.
2002).
2. Cramer’s severance arguments
Cramer’s severance arguments mirror Fackrell’s, mainly that he was
prejudiced by evidence of Fackrell’s prior convictions and prison
misconduct. Those arguments fail under Bieganowski as well.
Notably, Cramer argues that he was prejudiced at sentencing when
the Government introduced evidence of Fackrell’s involvement in a second
prison murder. After Fackrell was charged in Johns’s murder, he was charged
in the murder of another inmate, Ronald Griffith.1 The jury heard that only
three months after Johns’s murder, Fackrell brutally stomped on Griffith’s
head and said that he “didn’t really care that he stomped [Griffith] out.”
While evidence of Fackrell’s role in the Griffith murder was more
shocking than evidence of other crimes and prison incidents, we cannot
conclude that this evidence compels severance. The jury’s similar findings
on the Defendants’ mitigating factors reflect the similarity between the
Defendants’ mitigating cases rather than any confusion by the jury. Nothing
suggests that the jury failed to follow the district court’s instructions and
1 Griffith’s murder will be further discussed infra Section G.
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impermissibly considered the Griffith murder when evaluating Cramer’s
case for life.
We find no error in the district court’s denial of Defendants’ motions
to sever and thus affirm.
B. Mental States under 18 U.S.C. § 3591(a)(2)
After a defendant is convicted of a capital offense, the jury must
determine whether the defendant had a requisite mental state under 18
U.S.C. § 3591(a)(2) before sentencing him to death. Fackrell and Cramer
argue for the first time that the Government failed to prove that they had one
of the requisite mental states when they killed Johns. We disagree.
Since Defendants failed to raise this issue at trial, review is for plain
error. United States v. Avants, 367 F.3d 433, 443 (5th Cir. 2004). To establish
plain error, Fackrell must prove that “(1) there was error, (2) the error was
plain, (3) the error affected his ‘substantial rights,’ and (4) the error seriously
affected ‘the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007)
(quoting United States v. Olano, 507 U.S. 725, 732−734 (1993)).
18 U.S.C. § 3591(a)(2)(A)–(D) lists four mental states. The
Government must prove at least one mental state in § 3591(a)(2) beyond a
reasonable doubt. It must prove that Defendants:
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that resulted in
the death of the victim;
(C) intentionally participated in an act, contemplating that the
life of a person would be taken or intending that lethal force
would be used in connection with a person, other than one of the
participants in the offense, and the victim died as a direct result
of the act; or
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(D) intentionally and specifically engaged in an act of violence,
knowing that the act created a grave risk of death to a person,
other than one of the participants in the offense, such that
participation in the act constituted a reckless disregard for
human life and the victim died as a direct result of the act.
18 U.S.C. § 3591(a)(2)(A)–(D).
Fackrell argues that the Government did not prove that he had a
requisite mental state when he participated in Johns’s murder. He argues that
the jury could not have concluded that he had one of the requisite mental
states in § 3591(a)(2)(B)– (D) because they all require actions that result in
the death of the victim. Because the coroner did not determine which blow
was fatal, Fackrell argues that the jury could not have determined that he was
the but-for cause of Johns’s death. In his view, the jury convicted him of firstdegree murder because he aided and abetted in Johns’s murder, and this level
of culpability does not demonstrate that he had a requisite mental state.
This argument fails because aiding and abetting liability does satisfy
the requisite mental states in § 3591(a)(2)(C) and (D). See United States v.
Williams, 610 F.3d 271, 287 (5th Cir. 2010); United States v. Paul, 217 F.3d
989, 998 (8th Cir. 2000) . Even if the jury convicted Fackrell on the basis of
aiding and abetting in Johns’s murder, that finding is a sufficient basis for
concluding that he had the requisite mental states under § 3591(a)(2)(C) and
(D). We thus cannot conclude that there was error, let alone plain error. We
affirm.
C. Prosecutorial Misconduct in Statements
Fackrell and Cramer challenge several statements made by the
Government at trial. They jointly challenge the Government’s statements
about (1) future dangerousness and the jury’s responsibility for Defendants’
death sentences and (2) mitigation evidence, arguing that the statements
violated their Fifth and Eighth Amendment rights. Fackrell also challenges
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the Government’s statements about getting justice for the victim and the lack
of evidence of his intent to kill Johns.
1. Joint Challenge of Statements on Future Danger and Jury Role in Sentencing
Defendants jointly challenge the Government’s statements on future
dangerousness and the jury’s responsibility for their death sentences. They
argue that the Government committed misconduct by eliciting testimony
from witnesses about their ability to be released from maximum-security
prison and then arguing that Defendants were likely to pose future danger.
They also argue that the Government erred by implying that an appellate
court would review a sentence of death. We disagree.
a. Future Danger
During the penalty-phase of trial, both the Government and
Defendants called experts on future dangerousness. Defendants called Dr.
Gravette, and the Government called Dr. Berkebile. Both testified about
several maximum-security inmates with no relation to this case, including
David Hammer. Hammer was originally sentenced to death, a court vacated
his death sentence, and he was sentenced to life in a maximum-security
prison. Hammer then killed another inmate.
The Government’s future dangerousness argument used the experts’
testimony about Hammer and other inmates to suggest that even maximumsecurity prisons could not contain some inmates. The Government further
suggested that Defendants could one day be released from maximumsecurity prison and pose further danger in a less secure prison environment.
Though the record is not clear as to whether Defendants objected to
the statements, Defendants’ arguments fail even when reviewed for abuse of
discretion. See Snarr, 704 F.3d at 399.
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The Federal Death Penalty Act permits the introduction of
aggravating and mitigating evidence unless “its probative value is
outweighed by the danger of creating unfair prejudice.” 18 U.S.C. § 3593(c).
Our court has made clear just how broad that evidentiary standard is,
concluding that “[w]here the alternative to the death penalty is life
imprisonment, the government ‘is free to argue that the defendant will pose
a danger to others in prison and that executing him is the only means of
eliminating the threat to the safety of other inmates or prison staff.’” Snarr,
704 F.3d at 394 (quoting Simmons v. S. Carolina, 512 U.S. 154, 165 n.5
(1994)). Defendants’ arguments therefore fail.
b. Jury Responsibility
Defendants also argue that the testimony about Hammer’s death
sentence later being vacated allowed the jury to think it was not ultimately
responsible for their death sentences.
Defendants failed to object to the testimony at trial, so review is for
plain error. See Avants, 367 F.3d at 443.
The Government asked Dr. Gravette about David Hammer, and the
testimony was as follows:
Question from the Government: “And [Hammer] was originally given
a death sentence, but for some legal reasons that sentence was later
overturned. Am I right so far?”
Answer from Dr. Gravette: “Yes ma’am.”
This testimony came up again when the Government examined Dr. Berkebile
and said Hammer “had received a death sentence [and] it was converted to
life . . . .” Defendants argue that this testimony violated the Eighth
Amendment by permitting the jury “to believe that the responsibility for
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determining the appropriateness of the defendant’s death rests elsewhere.”
Caldwell v. Mississippi, 472 U.S. 320, 329 (1985).
This argument is incorrect because this case is distinguishable from
Caldwell. In Caldwell, the Supreme Court vacated a death sentence after the
prosecutor told the jury that their decision was not the final decision and that
it would be reviewed by the Supreme Court. Id. at 325−26 (1985). Here, the
Government’s statements are substantially different from those requiring
reversal in Caldwell. The Government’s statements were not in error, let
alone plain error. We affirm.
2. Joint Challenge to Mitigation Statements
Defendants challenge the Government’s statements that referred to
mitigating evidence as evidence mitigating against the crime committed,
rather than as evidence mitigating against the imposition of the death penalty.
After Defendants presented mitigating evidence related to their childhood
traumas, the Government responded with,
“Well, you may very well find that that’s a true statement, that you
find that the defense has proven that by a preponderance of the
evidence. But does that mean that it mitigates against a sentence of
death? Does that mean the fact that if things were different, then he
wouldn’t have committed the crime or he wouldn’t have been in
prison?”
Defendants did not object to this statement. The Government later asked
whether evidence about Fackrell’s father’s drinking mitigated Johns’s
murder. Defendants objected to that statement, but their objections were
overruled.
We review Defendants’ evidentiary challenges for abuse of discretion.
See Ebron, 683 F.3d at 133.
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Though Defendants challenge the Government’s statements linking
mitigating evidence to evidence that makes the crime less severe, the
statements do not warrant reversal. In Boyde v. California, the Supreme Court
did not reverse on similar language—that the mitigating evidence did not
make the defendant’s crime any “less serious.” 494 U.S. 370, 385–86 (1990).
We find no error in the district court’s denial of Defendants’ motion.
Furthermore, any potential error is rendered harmless by both the
Government and district court’s curative measures. Though the
Government made the mitigation statements described above, it also said
that mitigation evidence “[is] not something that excuses or justifies the
crime; but it does have to be something that mitigates the death penalty.”
Likewise, the district court’s instructions included a similar definition of
mitigating evidence that tracks our precedent. The Government has
sufficiently demonstrated that any error is harmless beyond a reasonable
doubt. See 18 U.S.C. § 3595(c)(2).
3. Fackrell’s Challenge to Statements about Justice and Intent to Kill
Fackrell next points to the Government’s statements urging the jury
to convict him of first-degree murder to avoid “less justice,” “half justice,”
or “no justice” for Johns. He then points to the Government’s statement
that “[t]here is really not any evidence to suggest that Fackrell didn’t intend
to kill Leo Johns.”
Since Fackrell did not object to these statements, we review only for
plain error. See Avants, 367 F.3d at 443.
To establish plain error, Fackrell must prove that “(1) there was error,
(2) the error was plain, (3) the error affected his ‘substantial rights,’ and (4)
the error seriously affected ‘the fairness, integrity or public reputation of
judicial proceedings.’” Jones, 489 F.3d at 681 (quoting Olano, 507 U.S. at
734).
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Fackrell’s argument that the statements were in plain error is
unconvincing. Even assuming that the statements were error, we cannot
conclude that the error was plain or affected his substantial rights. See United
States v. Rosenberger, 502 F. App’x 389, 394−95 (5th Cir. 2012) (“[T]he
references to . . . achieving justice for Rosenberger’s victims fall well short of
any realistic likelihood of prejudice.”).
Fackrell also fails to demonstrate plain error in the Government’s
statements that there was no evidence that he did not intend to kill Johns.
Though the Government’s statement “could have been more artfully put,”
it is best understood as a summary of Fackrell’s rebuttal evidence and
therefore not in error. Moreover, any error stemming from these statements
would not impact Fackrell’s substantial rights. See id. at 395. Fackrell’s
argument fails, and we affirm the district court.
D. Testimony of Two Bureau of Prisons Psychologists
Fackrell next argues that the rebuttal testimony of two Bureau of
Prisons (“BOP”) psychologists violated his rights.
He offered various forms of mitigating evidence related to his mental
health. He presented the records of Dr. Clemmer,2 a BOP psychologist from
ADX who treated Fackrell after Johns’s murder (but before trial). Dr.
Clemmer’s notes describe Fackrell’s history of depression while at USP
Beaumont and note that USP Beaumont staff failed to respond to Fackrell’s
requests for psychological help in February 2009, December 2014, and
January 2015.
2 Though Fackrell initially designated Dr. Clemmer as a testifying witness, he
chose not to call her to testify. The Government initially objected to Fackrell’s motion to
enter her records as evidence, but the Government ultimately withdrew its objection.
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Fackrell offered testimony and evidence from psychologist Matthew
Mendel. Mendel testified that Fackrell’s juvenile records showed that he
attempted suicide and had a provisional diagnosis of major depressive
disorder that went untreated. He also testified that Dr. Clemmer’s notes
indicated that her treatment was helping Fackrell and causing “profound
changes” in his behavior.
Fackrell also offered testimony from Robert Johnson, who holds a
doctoral degree in criminal justice. Robert Johnson testified that Fackrell was
suicidal when he arrived at ADX but had received help from the ADX staff.
He also testified that Fackrell told him that he hoped to get treatment for his
mental health issues and move forward with his life.
To rebut Fackrell’s mitigation evidence, the Government called Dr.
Shara Johnson and Dr. Brown, two BOP psychologists who treated Fackrell
while he was at USP-Beaumont. Fackrell argues that their testimony violated
his Fifth Amendment right against self-incrimination, his Sixth Amendment
right to counsel, and the psychotherapist-patient privilege.
1. Right Against Self-Incrimination
Fackrell first challenges the testimony of the BOP psychologists as
violative of his Fifth Amendment protection against self-incrimination. We
disagree.
Fackrell did not object to the testimony of Drs. Shara Johnson and
Brown on the basis that they violated his Fifth Amendment right against selfincrimination. In fact, counsel expressly stated that “we’re not objecting to
the government calling a rebuttal witness to say they disagree with the
diagnosis of whatever it is they are going to say.” Though counsel objected
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to the admission of Dr. Brown’s notes3 under the Sixth, Eighth, and
Fourteenth Amendments, those objections do not preserve any error based
on the Fifth Amendment right against self-incrimination. See FED. R. EVID.
103(a)(1)(B) (“A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party, and if the
ruling admits evidence . . . [the party must] timely object or move to strike;
and state the specific ground . . . .”); see also United States v. Seale, 600 F.3d
473, 485−87 (5th Cir. 2010). Nor can we say that the unoffered objection was
apparent from the context. See id.
Because no objection was made on this ground, review is for plain
error. Avants, 367 F.3d at 443.
Dr. Shara Johnson treated Fackrell between January 2015 and August
2016, and she testified that he had “no significant mental health disorders.”
She also testified about his diagnosis of antisocial personality disorder and his
corresponding “pervasive disregard for the rights of others, irritability,
aggressiveness, lack of remorse, and impulsivity.”
Dr. Brown treated Fackrell beginning in January 2016, and she
testified that when she met Fackrell he had “no mental health history
whatsoever.” She also testified that Fackrell said “[his] childhood had
nothing to do with Johns’s murder” and that his previous prison conduct
“was funny.”
More than merely undermining his case for life, Fackrell argues that
the use of his statements to the BOP psychologists violated his Fifth
Amendment right against self-incrimination because he was not warned that
his statements to the psychologists could be used against him at trial. See
3 Counsel specifically objected to Dr. Brown’s documentation of her encounters
with Fackrell while he was housed at USP-Beaumont for Johns’s murder trial.
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Estelle v. Smith, 451 U.S. 454, 468 (1981) (“Because respondent did not
voluntarily consent to the pretrial psychiatric examination after being
informed of his right to remain silent and the possible use of his statements,
the State could not rely on what he said to Dr. Grigson to establish his future
dangerousness.”). Since he did not receive Miranda4 warnings before he
spoke to the doctors during his treatment, he concludes that the use of those
statements violated his rights under the Fifth Amendment.
We disagree with Fackrell’s argument that the Government violated
his Fifth Amendment right by calling the BOP psychologists as rebuttal
witnesses. Under United States v. Hall, the Government may use its own
expert witnesses to rebut a defendant’s experts when the defendant places
his mental health at issue. 152 F.3d 381, 398 (5th Cir. 1988), abrogated on other
grounds by United States v. Martinez–Salazar, 528 U.S. 304 (2000). “This
rule rests upon the premise that ‘[i]t is unfair and improper to allow a
defendant to introduce favorable psychological testimony and then prevent
the prosecution from resorting to the most effective and in most instances
the only means of rebuttal: other psychological testimony.’” Id. (alteration in
original) (quoting Schneider v. Lynaugh, 835 F.2d 570, 575 (5th Cir. 1988)).
This case is distinguishable from Smith because Fackrell put his
mental health at issue by introducing evidence and testimony from Clemmer,
Mendel, and Robert Johnson. See Smith, 451 U.S. at 472 (“[A] different
situation arises where a defendant intends to introduce psychiatric evidence
at the penalty phase.”). Their testimony described his past and current
struggles with depression, suicide, and other untreated diagnoses. Fackrell
offered the evidence as mitigating evidence, and the Government was
entitled to rebut that evidence using its own witnesses.
4 384 U.S. 436 (1966).
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We find no Fifth Amendment error in the Government’s use of
rebuttal testimony from the BOP psychologists.
2. Right to Counsel
Like his Fifth Amendment Miranda argument, Fackrell argues that his
Sixth Amendment right to counsel was violated because he did not have
counsel when he spoke with the BOP psychologists.
Fackrell objected to the admission of evidence on the grounds of the
Sixth Amendment right to counsel.
We review de novo Fackrell’s objection to the testimony on the basis
of the Sixth Amendment. See United States v. Webster, 162 F.3d 308, 333 (5th
Cir. 1998).
Because the doctor’s statements were used against Fackrell at trial, he
compares his treatment to a pretrial government expert evaluation. Without
counsel present (or a valid waiver of the right to counsel), he concludes that
his rights were violated.
In Powell v. Texas, the Supreme Court explained that a defendant’s
Fifth Amendment right “precludes the state from subjecting him to a
psychiatric examination concerning future dangerousness without first
informing the defendant that he has a right to remain silent and that anything
he says can be used against him at a sentencing proceeding.” 492 U.S. 680,
681 (1989) (citing Smith, 451 U.S. at 461−69). The Court further explained
that “the Sixth Amendment right to counsel precludes such an examination
without first notifying counsel that ‘the psychiatric examination [will]
encompass the issue of their client’s future dangerousness.’” Id. (alteration
in original) (quoting Smith, 451 U.S. at 471).
The BOP psychologists served as rebuttal witnesses to Fackrell’s own
evidence about his mental health. Fackrell points to nothing that indicates
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that the doctors’ evaluations were carried out in order to assess his future
dangerousness, as was the case in Smith and Powell. Instead, the doctors’
examinations were routine and in keeping with their duty of care to all
inmates. We can find no error and thus affirm the district court’s denial of
Fackrell’s objection based on the Sixth Amendment.
3. Psychotherapist-Patient Privilege
Fackrell next argues that even if the BOP psychologists’ testimony
was permissible under the Fifth and Sixth Amendments, their testimony
violated the common law psychotherapist-patient privilege. We disagree.
Though the application of the psychotherapist-patient privilege is a
legal question, Fackrell did not raise this issue before the district court. We
therefore review for plain error. Avants, 367 F.3d at 443.
The Supreme Court recognized the psychotherapist-patient privilege
under Federal Rule of Evidence 501 in Jaffee v. Redmond. 518 U.S. 1, 8−10
(1996). The Court described the importance of the privilege in fostering trust
and candor between psychotherapists and their patients. Id. at 10. The
benefits of the privilege are great because “[t]he psychotherapist privilege
serves the public interest by facilitating the provision of appropriate
treatment for individuals suffering the effects of a mental or emotional
problem.” Id. at 11. Even still, the Court noted that the privilege must give
way in certain circumstances. Id. at 18 n.19.
Though the psychotherapist-patient privilege is an important feature
of our legal system, we cannot conclude that the district court committed
plain error in permitting the doctors’ testimony.
First, it is not clear that the psychotherapist-patient privilege exists
during the sentencing phase of federal capital trials. “Information is
admissible regardless of its admissibility under the rules governing admission
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of evidence at criminal trials except that information may be excluded if its
probative value is outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury.” 18 U.S.C. § 3593(c). Section
3593(c) thus favors admission of all evidence except that which creates the
risk of unfair prejudice, confusing the issues, or misleading the jury.
The psychotherapist-patient privilege prevents the admission of
communications between psychotherapists and patients, and the privilege
applies where the Federal Rules of Evidence apply after Jaffe
(notwithstanding cases where state law compels a different result). But
without the parameters of the Federal Rules of Evidence, we cannot conclude
that the privilege applies in the sentencing phase of capital trials. Without the
privilege limiting the admission of the doctors’ testimony, the evidence could
only be excluded for one of the reasons listed in § 3593(c), and we cannot say
that the district court plainly erred by permitting this testimony.
Second, even if we assume that the privilege applies (and that Fackrell
did not waive the privilege), we cannot conclude that the district court’s error
was plain. A plain error is one that is “so clear or obvious that ‘the trial judge
and prosecutor were derelict in countenancing it, even absent the
defendant’s timely assistance in detecting it.’” United States v. Narez–
Garcia, 819 F.3d 146, 151 (5th Cir. 2016) (quoting United States v. Hope, 545
F.3d 293, 295–96 (5th Cir. 2008)).
Fackrell’s best argument for applying the psychotherapist-patient
privilege comes from two cases from our sister circuits. The first is Koch v.
Cox, 489 F.3d 384 (D.C. Cir. 2007). Koch says that the psychotherapistpatient privilege can be waived when the party claiming the privilege “relies
upon the therapist’s diagnoses or treatment in making or defending a case.”
Id. at 389. Here, Fackrell argues that he did not rely on Dr. Shara Johnson or
Dr. Brown’s treatment in making or defending his case. The two doctors
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testified for the Government on rebuttal, so they did not aid him in making
or defending his case.
Following Koch, the Second Circuit decided In re Sims, 534 F.3d 117
(2d Cir. 2008). The Second Circuit agreed with Koch in Sims, adding that “a
party’s psychotherapist-patient privilege is not overcome when his mental
state is put in issue only by another party.” Id. at 134 (emphasis added).
However, neither of those cases addresses Fackrell’s argument.
Fackrell’s mental state was put in issue by his own trial strategy because his
own experts testified about his mental health history. Even if that evidence is
categorized as rebuttal evidence to the Government’s evidence of
aggravating factors, that argument is undercut by the fact that Fackrell
offered mitigating factors related to his history of depression. The record
supports the conclusion that Fackrell put his mental state at issue through his
choice of expert witnesses and mitigating evidence submitted to the jury.
Though both Koch and Sims are merely persuasive authority, they
offer some guidance. Fackrell’s claim would likely fail under both Koch and
Sims. He has not cited, nor have we found, support for his position that the
Government could not rebut his mental health evidence with the testimony
of the BOP psychologists when he put his mental health at issue. We thus
affirm, concluding that the district court did not commit plain error under
the psychotherapist-patient privilege by permitting the BOP psychologists to
testify.
E. Mental Health Rebuttal Witnesses
Cramer challenges the Government’s use of mental health rebuttal
witnesses, arguing that the testimony violated Federal Rule of Criminal
Procedure 12.2 and the Fifth and Sixth Amendments. We disagree.
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Because Cramer did not object at trial, review is for plain error. See
United States v. Rice, 607 F.3d 133, 138–39 (5th Cir. 2010).
Cramer presented mental health experts during the sentencing phase.
The experts focused on his difficult childhood and the impact of that
childhood on his development. The Government presented a rebuttal
witness, Dr. Jill Hayes. The Government agreed to limit her testimony to
only direct rebuttal of Cramer’s experts and to exclude all mention of Johns’s
murder. However, Dr. Hayes testified about statements Cramer allegedly
made that indicate his lack of remorse for his crimes.
Cramer argues that her testimony went beyond pure rebuttal and thus
violated Rule 12.2 and his Fifth Amendment rights. Much like crossexamination is generally limited to the topics inquired about on direct
examination, Cramer argues that her rebuttal should have been tied to his
mitigation evidence—evidence of his childhood and resulting traumas. See,
e.g., Kansas v. Cheever, 571 U.S. 87, 97 (2013) (limiting cross-examination to
topics from direct examination).
He further argues that his Fifth Amendment right against selfincrimination was violated when Dr. Hayes testified about his statements
without his permission. Likewise, he argues that her testimony violated Rule
12.2 by violating the reciprocity principle embedded in the rule that limits
rebuttal to the topics raised by the defendant.
We can find no plain error in permitting Dr. Hayes’s testimony. Her
testimony gave a broad overview of Cramer’s life and did not stray so far from
the topics Cramer raised as to constitute plain error. Cramer offered
testimony about his childhood and his present-day experiences, and Dr.
Hayes’s testimony was similarly broad. Her testimony about Cramer’s
reaction to Johns’s murder is no broader than the testimony of Cramer’s own
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expert. We find no error either under the Fifth Amendment or under Rule
12.2 and thus affirm.
F. Excluding Evidence of the Johns Family’s Suit
The district court denied Defendants’ request to introduce evidence
from the Johns family’s civil suit against a BOP warden. They argued that
details of the suit were relevant to rebut the Government’s evidence related
to the victim-impact aggravator. We agree with the district court.
The Federal Death Penalty Act permits the introduction of
aggravating and mitigating evidence unless “its probative value is
outweighed by the danger of creating unfair prejudice.” 18 U.S.C. § 3593(c).
We review the district court’s evidentiary rulings for abuse of discretion.
Snarr, 704 F.3d at 399.
The Johns family sued a BOP warden, alleging that the BOP was liable
for Johns’s wrongful death. In the warden’s answer urging the court to
dismiss the suit, he said that Johns was primarily responsible for his death
because he joined the SAC and defied the rules prohibiting drinking and
gambling. In Defendants’ trial, the Government argued that Johns was not
responsible for his murder and that Defendants murdered him to maintain
their reputations.
The district court did not err in excluding this evidence as irrelevant
and likely to confuse the jury. The individual warden’s response in a lawsuit
does not equate to the BOP’s own statement on Johns’s culpability, as the
BOP was not a party to the civil suit. The evidence is therefore not relevant
and the relationship between the two cases is so attenuated as to risk
confusing the jury. Defendants’ argument therefore fails.
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G. Excluding Evidence related to the Griffith Murder
During the penalty phase of trial, the Government presented evidence
of Fackrell’s involvement in the murder of Ronald Griffith. Fackrell
attempted to introduce evidence that the Government offered a plea deal to
his co-defendant in the Griffith murder. The district court denied Fackrell’s
request to introduce the evidence. Fackrell argues that the exclusion was in
error and was not harmless beyond a reasonable doubt. We disagree.
The district court’s decision to exclude information is reviewed for
abuse of discretion. Snarr, 704 F.3d at 399. If there was error, reversal is
required unless the Government can show it was harmless beyond a
reasonable doubt. United States v. Jones, 132 F.3d 232, 252 (5th Cir. 1998).
After Johns’s murder, Fackrell was charged with the deadly assault of
Ronald Griffith, a fellow inmate and alleged sex-offender. Fackrell allegedly
participated in this assault with another inmate and SAC member, Erik
Rekonen. In the prosecution for Griffith’s murder, the Government agreed
to a ten-year sentence for Rekonen but pursued the death penalty against
Fackrell. The Government and Rekonen’s attorney met about a potential
plea in 2017. The record reflects that the Government sought to make a deal
with Rekonen in exchange for his testimony against Fackrell.
The district court excluded the mention of Griffith’s murder during
the guilt phase of Johns’s murder trial but permitted its mention during the
sentencing phase. The Government presented Griffith’s murder as
aggravating evidence, and Fackrell argued that evidence of Rekonen’s plea
deal should have been permitted as mitigating evidence. Fackrell asserts that
Rekonen’s plea deal was relevant because it demonstrated that his equally
culpable co-defendant would not receive the death penalty. See 18 U.S.C. §
3592(a)(4) (“In determining whether a sentence of death is to be imposed on
a defendant, the finder of fact shall consider any mitigating factor, including
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. . . [whether] [a]nother defendant or defendants, equally culpable in the
crime, will not be punished by death.”). He also asserts that Rekonen’s lesser
sentence reflects the BOP’s acknowledgment that prison politics force
inmates to violently assault alleged sex-offenders.
Though excluding mitigating evidence may violate a capital
defendant’s right to due process, Green v. Georgia, 442 U.S. 95, 97 (1979), we
cannot conclude that the district court’s exclusion was in error. 18 U.S.C. §
3592(a)(4) allows defendants to put on mitigating evidence of their codefendant’s culpability—in trials for the related offense. Here, Fackrell can
point to nothing in the statute nor case law that commands district courts to
permit mitigating evidence about co-defendants from other trials. The statute
refers to other defendants “in the crime,” and we conclude that the crime
referenced in the statute is the crime for which Fackrell faced the death
penalty, Johns’s murder. In doing so, we follow our sister circuit. See United
States v. Gabrion, 719 F.3d 511, 524 (6th Cir. 2013) (“This factor does not
measure the defendant’s culpability itself, but instead considers—as a moral
data point—whether that same level of culpability, for another participant in
the same criminal event, was thought to warrant a sentence of death.”)
(emphasis added).
Evidence of Rekonen’s plea could also have been admitted as “catchall” mitigation evidence under 18 U.S.C. § 3592(a)(8). Any error in
excluding this evidence is harmless given that the jury already saw videos of
Griffith’s assault and heard evidence of Fackrell’s involvement. We cannot
say that evidence of Rekonen’s plea would have “diminish[ed] [his]
culpability or otherwise mitigate against a sentence of death.” Id.
Furthermore, jurors found several mitigating factors related to
Griffith’s murder even without the evidence of Rekonen’s plea deal. Six
jurors found it mitigating that officers placed Griffith near other inmates
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knowing that he may be assaulted. Another six jurors found that Fackrell and
other inmates had to play prison politics to stay safe. This further
demonstrates that any perceived error would be harmless.
We affirm the district court’s exclusion of evidence of Rekonen’s plea
deal related to Griffith’s murder.
H. Acquitted Conduct as Evidence of Future Dangerousness
Cramer challenges the Government’s use of his role in a 2012 assault
charge as evidence of future dangerousness. Cramer was ultimately acquitted
of the 2012 assault, and he argues that the Government violated his Fifth
Amendment protection against double jeopardy. We disagree.
Cramer did not object at trial. Review is for plain error. Avants, 367
F.3d at 443.
“[A]n acquittal in a criminal case does not preclude the Government
from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” Dowling v. United States, 493 U.S. 342,
349 (1990). “Extraneous offenses offered at the punishment phase of a capital trial need not be proven beyond a reasonable doubt.” Vega v. Johnson, 149
F.3d 354, 359 (5th Cir. 1998).
Under Dowling and Vega, the Government was permitted to introduce
evidence of Cramer’s conduct related to the 2012 assault for which he was
acquitted. At trial for the 2012 assault, the Government could not prove that
he committed the assault beyond a reasonable doubt. However, the Government was not required to prove the 2012 assault beyond a reasonable doubt
to mention it at the punishment phase of this trial. See id.
Thus, there was no error in the Government’s mention of Cramer’s
charge for the 2012 assault. We affirm.
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I. Categorical Approach and Fackrell’s Prior Convictions
The Government alleged four statutory aggravators in its notice of
intent to seek the death penalty against Fackrell, including the 18 U.S.C. §
3592(c)(2) aggravator for use of a firearm and the § 3592(c)(4) aggravator for
inflicting death or serious bodily injury. Fackrell has previous federal
convictions for brandishing a firearm during a crime of violence and
possession of a prohibited object. He also has a state law conviction for
aggravated assault.
The district court did not use the categorical approach in determining
that his previous convictions fit within § 3592(c)(2) and (c)(4). Fackrell
argues that the district court should have used the categorical approach to
compare the elements of his prior convictions with the elements of the
offenses described under §§ 3592(c)(2) and (c)(4). He argues that his
convictions do not fall within the ambit of §§ 3592(c)(2) and (c)(4), and thus
his sentence must be reversed. We disagree.
Since the district court’s decision to reject the categorical approach
was a legal conclusion, we review it de novo. United States v. Jackson, 549
F.3d 963, 969 (5th Cir 2008). The analysis is subject to harmless-error review
as well. See United States v. Torrez, 869 F.3d 291, 313 (4th Cir. 2017).
Our circuit has not yet addressed whether the categorical approach is
the appropriate analysis under the Federal Death Penalty Act. Both sides
present persuasive arguments, but we need not answer the question to
resolve this issue. Even if we assume that the categorical approach applies
and thus the § 3592(c)(2) and (c)(4) aggravators were invalid, the sentence
can be affirmed if it would have been imposed without the invalid
aggravators. Jones, 132 F.3d at 251−52.
The Government argues (and Fackrell concedes) that his prior
convictions were admissible at the selection phase as non-statutory
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aggravators. Fackrell argues that the jury necessarily would have put more
weight on statutory aggravators than non-statutory aggravators, such that
reversal is warranted for re-sentencing. Nothing in our precedent compels
such a result, so Fackrell’s argument fails.
J. Fackrell’s Hobbs Act Claim
Fackrell also challenges the characterization of his Hobbs Act robbery
conviction as a statutory aggravator under 18 U.S.C. § 3592(c). He argues
that the district court erred by permitting the Government to use his
conviction as a § 3592(c) aggravator after United States v. Davis, 139 S. Ct.
2319 (2019).
Fackrell preserved this argument at trial, and review is de novo. United
States v. Hebert, 131 F.3d 514, 525 (5th Cir. 1997).
The § 3592(c) aggravator includes convictions for violent crimes, and
Hobbs Act robbery is a violent crime. United States v. Buck, 847 F.3d 267, 275
(5th Cir. 2017). The Government listed Fackrell’s Hobbs Act conviction as
the basis for the aggravator given its characterization as a crime of violence.
Fackrell argues that this characterization is erroneous after Davis, where the
Supreme Court held that the residual clause in § 924(c)(3)(B) was
unconstitutionally vague. 139 S. Ct. 2319, 2323 (2019). He also argues that
his Hobbs Act conviction was not based on a use of force because it can be
committed by threatening harm to an intangible economic interest.
Fackrell’s first argument is foreclosed by our decision in Buck. Hobbs
Act robbery is a crime of violence in this circuit and therefore qualifies as an
aggravator under § 3592(c). See Buck, 847 F.3d at 275.
Fackrell’s second argument also fails. Hobbs Act extortion may be
accomplished without the use of force. See United States v. Nadaline, 471 F.2d
340, 344 (5th Cir. 1973). This says nothing of Hobbs Act robbery for which
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Fackrell was charged, and we find no error in listing Fackrell’s Hobbs Act
robbery conviction as an aggravator under § 3592(c).
K. Jury Instructions on Mitigating Evidence
Fackrell challenges the district court’s penalty-phase jury
instructions on mitigating evidence, arguing that the two-step instruction for
finding mitigating factors violates 18 U.S.C. § 3593(d). We disagree.
Fackrell preserved his objections to the verdict form. This Court
“review[s] a challenge to jury instructions for abuse of discretion, ‘affording
the trial court substantial latitude in describing the law to the jurors.’” United
States v. Ortiz-Mendez, 634 F.3d 837, 839 (5th Cir. 2011) (quoting United
States v. Orji-Nwosu, 549 F.3d 1005, 1008 (5th Cir. 2008)).
Section 3593(d) provides that “[a] finding with respect to a mitigating
factor may be made by 1 or more members of the jury, and any member of the
jury who finds the existence of a mitigating factor may consider such factor
established . . . .” The district court’s instruction told the jury that it could
“find that the defendant has proved by a preponderance of the evidence the
existence of [a mitigating] factor and that it is mitigating.”
The district court’s instruction requires jurors to find that a fact was
proven and then find that the fact was mitigating. Fackrell argues that this
instruction permitted the jury to disregard mitigating evidence because it
could find that a fact was proven but then conclude that the fact was not
mitigating.
Fackrell’s argument is undercut by 18 U.S.C. § 3592(a), which
requires jurors to consider “any mitigating factor.” 18 U.S.C. § 3592(a).
Whether jurors first evaluated whether Fackrell proved the existence of some
facts and then determined they were mitigating or answered both questions
at once, the court’s instructions were proper. See United States v. Mikhel, 889
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F.3d 1003, 1055 (9th Cir. 2018) (“[R]egardless of whether the jury found that
the proffered mitigating factors were factually unsupported or that they
simply did not justify a lesser sentence, the final result is the same.”).
We affirm the district court’s denial of Fackrell’s objection to the jury
instruction on mitigating factors.
L. Marshalling the Evidence in Jury Instructions
Defendants argue that the district court impermissibly “marshalled
the evidence” on the jury instructions for future dangerousness. We
disagree.
Defendants failed to object to the instructions on this basis at trial.
Review is for plain error. Avants, 367 F.3d at 443.
The district court’s oral and written jury instructions defined future
dangerousness and listed several pieces of evidence that the Government
offered as future dangerousness evidence. The instructions did not list any of
the defense’s evidence against future dangerousness.
Though once common, the practice of judges marshalling the
evidence “has fallen into widespread disfavor.” United States v. Mundy, 539
F.3d 154, 158 (2d Cir. 2008). Courts should refrain from commenting on the
evidence at trial and should avoid one-sided summaries or comments. See
Quericia v. United States, 289 U.S. 466, 470 (1933).
In United States v. Coonce, the Eighth Circuit rejected a defendant’s
claim that the district court had improperly summarized the evidence of
future dangerousness in favor of the government. 932 F.3d 623, 637 (8th Cir.
2019). The pattern jury instructions language used “as evidenced by” to
describe pertinent facts related to the aggravators, and the Eighth Circuit
cautioned district courts against removing that language from the instruction.
Id. at 638.
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Here, the pattern instructions also included “as evidenced by” and
summarized the evidence. Such language is meant to aid and focus the jurors’
analysis on particular pieces of evidence rather than presenting them an
open-ended question. See id. at 637.
We cannot conclude that the district court plainly erred by focusing
the jury’s analysis on particular pieces of evidence. In fact, the district court
listed Defendants’ own evidence of mitigating factors in its instructions as
well, further proof that the court did not err by giving a one-sided summary
of the evidence.
We affirm, finding no error in the district court’s oral and written jury
instructions.
M. Jury Question on Non-unanimity
Defendants challenge the district court’s supplemental jury
instructions. They argue that the district court refused to instruct the jurors
after they asked about the consequences of a non-unanimous verdict. We
disagree.
Supplemental jury instructions are reviewed for abuse of discretion in
light of the entire charge. United States v. Hale, 685 F.3d 522, 544–45 (5th
Cir. 2012).
Prior to voir dire, Defendants requested a preemptive instruction on
the consequence of a split verdict, but the court denied their requests under
Jones v. United States. In Jones, the Supreme Court held that the Eighth
Amendment does not require every jury to be told of the effect of nonunanimity. See 527 U.S. 373, 383 (1999).
Later during the sentencing jurors’ deliberations, they sent a note to
the court asking, “What is the process if we are not unanimous with our
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verdict?” The district court sent a note back to the jurors instructing them to
“[p]lease continue your deliberations.”
“When evaluating the adequacy of supplemental jury instructions, we
ask whether the court’s answer was reasonably responsive to the jury’s
question and whether the original and supplemental instructions as a whole
allowed the jury to understand the issue presented to it.” United States v.
Stevens, 38 F.3d 167, 170 (5th Cir. 1994).
Defendants argue that even if the district court’s initial refusal to
instruct on non-unanimity was correct under Jones, Jones does not control
where the jurors directly asked about non-unanimity. They argue that the
district court’s response should have been given in open court and should
have answered the jurors’ question.
We cannot conclude that the district court erred by responding to the
jurors’ question in writing. See United States v. Strauch, 987 F.2d 232, 242−43
(5th Cir. 1993). Nor can we conclude that the court abused its discretion by
not providing a non-unanimity instruction in response to the jurors’
question. Congress did not require such an instruction among the mandatory
instructions that the district court must give. See Jones, 527 U.S. at 383 (citing
18 U.S.C. § 3593(f)).
Even beyond Jones, we can find no error where the district court’s
instructions explained that each juror must consider the evidence
individually to render a verdict. The district court instructed the jurors that
the verdict must represent the judgment of each of them and that they each
must decide the case for themselves. The fact that many different groupings
of jurors found various mitigating factors for Defendants further
demonstrates that jurors acted individually.
We affirm the district court’s supplemental jury instruction to the
sentencing jury.
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N. Incomplete Record
Defendants challenge the sufficiency of the record on appeal, arguing
that missing components impair their ability to have a full appeal. We
disagree.
The record on appeal includes transcripts of proceedings. FED. R.
APP. P. 10(a). If the transcript of a hearing or trial is unavailable, Rule 10(c)
permits the appellant to prepare part of that record from their recollection.
FED. R. APP. P. 10(c). The district court did not permit Defendants to
recollect parts of the record they contend are missing, and they argue that
they do not have a substantial part of the record on appeal.
Where the defendant has new counsel on appeal, the court will reverse
if (1) a missing portion of the record is substantial and significant, and (2) the
trial court’s reconstruction is not a substantially verbatim account. See United
States v. Pace, 10 F.3d 1106, 1124–25 (5th Cir. 1993).
Defendants assert that the record is missing vital conferences,
including the conference about the testimony of Elizabeth Rose, the
Government’s final witness in the guilt phase of trial. Rose was in a holding
cell near Fackrell and Cramer’s cells during their trial. She testified that she
heard them making fun of the prosecutor’s opening argument, laughing
about stabbing Johns 74 times, and Fackrell saying that “[i]t didn’t feel like
that many [stabbings] when it was happening.”
Rose was represented by an Assistant Federal Public Defender for the
Eastern District of Texas, as was Cramer. She was facing a life sentence for
conspiracy to possess and intent to distribute methamphetamine. She
contacted her attorney and told him that she wanted him to tell the
Government about what she heard. Rose’s attorney petitioned to withdraw
from her case given the conflict of interest created by her desire to testify
against Cramer. Defendants’ counsel believes that the court discussed
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Rose’s testimony in an unrecorded conference in chambers and that the
missing record prejudices their defense. Counsel also believes that the parties
discussed the potential conflict of interest facing the Federal Public
Defender.
Defendants also identify the conference about the penalty-phase jury
charge as another important proceeding that was unrecorded. The district
court indicated that it wanted to meet with the parties to decide on the
penalty-phase instructions. No recording of the conference exists. Several of
counsel’s proposed mitigating instructions did not appear in the instructions,
and Defendants now argue that the court ruled on their proposed instructions
at the unrecorded conference.
Defendants arguments fail because the discussion of Rose’s testimony
was not a “hearing or trial” within the meaning of Rule 10. Nor was the jury
charge conference a “session of the court” pursuant to the Court Reporter’s
Act because it did not occur in open court. United States v. Jenkins, 442 F.2d
429, 438 (5th Cir. 1971). Neither the Federal Rules of Appellate Procedure
nor the Court Reporter’s Act compel reversal here. Furthermore,
Defendants have not demonstrated that these omissions are substantial or
significant. Defendants’ arguments fail.
O. Cumulative Reversal
Defendants’ final argument is that even if no individual error is
reversible, the cumulative effect of the errors warrants reversal.
An appellate court may reverse a conviction by aggregating otherwise
non–reversible errors that combine to deny the defendant’s right to a fair
trial. United States v. Delgado, 672 F.3d 320, 343−44 (5th Cir. 2012) (en banc).
Because we do not find that the district court made any errors,
cumulative reversal is unavailable.

Outcome: For the aforementioned reasons, we AFFIRM the sentences and
convictions of Ricky Fackrell and Christopher Cramer

Plaintiff's Experts:

Defendant's Experts:

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