United States v. Ebron

Decision Date30 May 2012
Docket NumberNos. 09–40544,10–40108.,s. 09–40544
Citation88 Fed. R. Evid. Serv. 722,683 F.3d 105
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Joseph EBRON, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit


Traci Lynne Kenner (argued) and Joseph Robert Batte, Jr. (argued), Asst. U.S. Attys., Beaumont, TX, for PlaintiffAppellee.

Donna F. Coltharp, Asst. Fed. Pub. Def. (argued), San Antonio, TX, Jimmy R. Phillips, Jr., Gen. Atty., Angleton, TX, for DefendantAppellant.

Appeals from the United States District Court for the Eastern District of Texas.

Before STEWART, CLEMENT and GRAVES, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Joseph Ebron was sentenced to death for the murder of a fellow inmate. He now appeals his conviction and sentence. In addition, he is also challenging the district court's denial of his motion for a new trial. For the following reasons, we affirm his conviction, sentence, and the denial of his motion.


On May 6, 2005, Keith Barnes, an inmate from Washington D.C., arrived at the United States Penitentiary in Beaumont, Texas. When Barnes arrived at USP–Beaumont, he met with a case manager for an intake screening before being assigned to a cell block. During the screening, Barnes told the case manager he had testified against his codefendants in two 1998 murder trials in Washington D.C., and was concerned about his safety because other inmates from the D.C. area might have been aware of his cooperation. Notably, one of his codefendants was James Carpenter. Despite this voiced concern, Barnes was placed in the prison's general population.

The following day, Barnes was found dead on the top bunk of the bed in his cell. Barnes's autopsy revealed that he had died of multiple stab wounds. Specifically, his autopsy indicated that he was stabbed 106 times by a sharp, round instrument in an eight-inch by four-inch area over his heart, left lung, and liver.

On May 8, 2005, prison officials conducted mass interviews of inmates to gather more information regarding Barnes's murder. During these interviews, Charles Sherman, another inmate from Washington D.C., identified Ebron, Marwin Mosley, and Michael Bacote as fellow participants in Barnes's murder. At trial, the jury heard two competing narratives of what occurred on May 7th. These narratives are captured in the testimony of two witnesses: Sherman and Ebron.


In 2005, Sherman was serving a sentence for armed robberies he committed in Washington D.C. and was being housed in the Delta Bravo unit of USP–Beaumont. According to Sherman, the following events took place upon Barnes's arrival.

In prison, inmates from particular states tend to form groups for protection. When inmates arrive at USP–Beaumont, they are approached by fellow inmates and asked questions about “where [they are] from.” Once this information is gathered, the newly arrived inmate is pointed in the direction of other inmates who are from the same geographic area.

After Sherman learned of Barnes's arrival, he, Bacote, and Mosley approached Barnes. When they first met Barnes, he did not tell them his real name; instead, he gave an Arabic name. At the conclusion of this meeting, Barnes went to his cell, which was also located in Delta Bravo.

Sherman, Bacote, and Mosley then proceeded to have a conversation about Barnes. During this conversation, Mosley told the group that he did not believe that the Arabic name Barnes provided was his actual name. Mosley informed the group that he recognized the new inmate and thought his name was Keith Barnes. When Sherman asked Mosley for the basis of his familiarity with Barnes, Mosley stated that he “believe[d] [Barnes] testified on some good dudes at DC jail.” Mosley specifically identified Carpenter as one of those “good dudes.”

After suspecting that the new inmate was actually Keith Barnes, Mosley told Sherman and Bacote to find out the new inmate's real name. The following morning, Bacote tricked Barnes into providing his real name. Later that morning, Sherman and Bacote told Mosley that the new inmate was indeed Barnes. Upon receiving confirmation of his suspicion, Mosley told the group to follow him to the recreation yard to talk to Tone, the leader of the D.C. group at USP–Beaumont. The purpose of Mosley's visit with Tone was to inform him of his plan to kill Barnes.

Mosley, Sherman, and Bacote went out to the yard during their next opportunity. Mosley then proceeded to have a conversation with Tone in which he told Tone that Barnes had testified against his friend, Carpenter. Tone then told them to beat Barnes up and force him to request segregation from the general prison population. Mosley responded to this suggestion by stating, “No, we're going to kill him ... I'm going to kill him.” Tone replied by telling Mosley that killing Barnes was unnecessary; all they needed to do was beat him up and force him to request to be segregated. Mosley rejected this suggestion and told Tone that he was going to kill Barnes that night.

When Mosley, Sherman, and Bacote left the yard, they went back to Delta Bravo and started discussing how Barnes would be killed. While back in Delta Bravo, they decided to kill Barnes in his cell. Specifically, they appeared to agree that Bacote would go into Barnes's cell to discuss the Koran, and that Ebron and Mosley would then enter the cell to kill Barnes.

After lunch, Mosley, Sherman, and Bacote set out to look for Ebron, and located him on a walkway heading towards Delta Bravo. Mosley and Bacote then had a conversation with Ebron in which they told him about Barnes's presence at USP–Beaumont. Mosley told Ebron about the plan to kill Barnes and asked for his help. Ebron agreed to participate. Bacote subsequently jumped in the conversation and told Ebron to wrap his shirt over his head when he entered Delta Bravo in order to avoid detection by surveillance cameras. After this conversation, Mosley, Sherman, and Bacote went back to Delta Bravo to continue discussing how to kill Barnes.

Once dinner was called, Ebron entered Delta Bravo and, at some point, Bacote went into Barnes's cell. When Sherman saw Ebron in Delta Bravo around dinnertime, Ebron had his khaki shirt wrapped around his head. Ebron and Mosley subsequently entered Barnes's cell. After Ebron and Mosley entered the cell, Bacote exited and situated himself on some stairs that were outside of Barnes's cell. Sherman subsequently joined Bacote on these stairs.

From these stairs, Sherman was able to look into Barnes's cell. When he looked in, he saw Ebron holding Barnes in a headlock, while Mosley's arms were “motioning.” This observation was consistent with their plan to kill Barnes: Ebron was to hold Barnes while Mosley stabbed him.

After a couple of minutes, the door to Barnes's cell opened. Sherman then walked over and closed the door. As he closed the door, Sherman could see Mosley and Ebron lift Barnes up and place him on the top bunk of the bed in his cell. A few minutes after Sherman closed the door, Ebron and Mosley emerged from Barnes's cell and went their separate ways.


In 2005, Ebron was serving his sentence for a murder that occurred in Washington, D.C. During the relevant time period, Ebron was housed in the Alpha Alpha unit of USP–Beaumont. According to Ebron, the following events occurred on the day of Barnes's murder.

During the afternoon of May 7th, Ebron was walking back to Alpha Alpha when he was approached by seven D.C. inmates, including Sherman, Bacote, and Mosley. As Mosley and Ebron walked toward Alpha Alpha, Mosley mentioned Keith Barnes and asked Ebron if Carpenter, who at one point was Ebron's cell mate at USP–Atlanta, ever said anything about Barnes testifying against Carpenter. Ebron responded by stating that he did not know the whole situation, but heard that Barnes and Carpenter were “working it out.”

After hearing Ebron's response, Mosley again asked Ebron whether Barnes had testified against Carpenter. This time, Ebron provided an unequivocal affirmative answer. Upon hearing this, Mosley told Ebron that he was “going to put the knife in [Barnes].” Ebron then suggested to Mosley that stabbing Barnes was unnecessary. Instead of stabbing Barnes, Ebron indicated that all they had to do was convince Barnes to request segregation. Mosley did not agree with this suggestion—he thought it “was too easy for Keith Barnes.”

Despite Mosley's disagreement, Ebron continued trying to convince Mosley that stabbing Barnes was unnecessary. After Ebron rejected Mosley's suggestion that, at the very least, they beat Barnes up, Mosley told Ebron to get Barnes out of Delta Bravo that day. Ebron agreed to do so.

Not long after 5:00 p.m., Ebron left Alpha Alpha and entered Delta Bravo. Despite being prohibited from entering another unit, Ebron made his way into Delta Bravo and concealed his identity by placinghis khaki shirt on his head. Once inside Delta Bravo, Ebron met up with Mosley and asked him where Barnes was located so that he could walk Barnes to the lieutenant's office. Once there, Barnes would then request administrative segregation and thus be removed from Delta Bravo. Rather than telling Ebron where Barnes was located, Mosley began mentioning pictures that he and Ebron had previously talked about. Mosley and Ebron then went into Mosley's cell to view these pictures.

After a few minutes, Ebron again asked Mosley about Barnes. In response, Mosley told Ebron that they were going to walk Barnes to the lieutenant's office. Mosley then left his cell and walked towards Barnes's cell; Ebron followed him. Before entering Barnes's cell, Ebron told Mosley to “chill out” and to let him do the talking. Because Mosley had previously revealed his preference to beat Barnes up, Ebron wanted to make clear that they were not going to physically harm Barnes.

When they entered the cell, Bacote and Barnes were having a conversation. As soon as he entered Barnes's cell, Mosley walked behind Barnes; Ebron stood by the front of the...

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