United States v. Fackrell

• Citation: 991 F.3d 589
• Decision Date: 12 March 2021
• Docket Number: No. 18-40598,18-40598
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Ricky Allen FACKRELL; Christopher Emory Cramer, Defendants—Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

991 F.3d 589

UNITED STATES of America, Plaintiff—Appellee,

v.Ricky Allen FACKRELL; Christopher Emory Cramer, Defendants—Appellants.

No. 18-40598

United States Court of Appeals, Fifth Circuit.

FILED March 12, 2021

Joseph Robert Batte, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Beaumont, TX, Bradley Elliot Visosky, Assistant U.S. Attorney, Stephan Edward Oestreicher, Jr., U.S. Attorney's Office, Eastern District of Texas, Plano, TX, for Plaintiff-Appellee.

Donna F. Coltharp, Judy Fulmer Madewell, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, Nicole Wignall DeBorde, Esq., Hochglaube & DeBorde, P.C., Houston, TX, for Defendant-Appellant Ricky Allen Fackrell.

Douglas Milton Barlow, Barlow Law Firm, Beaumont, TX, Sean Joseph Bolser, Federal Public Defender's Office, Eastern District of New York, Brooklyn, NY, Anthony Seymour Haughton, Esq., Capital Resource Counsel Project, c/o Federal Public Defender Southern District of Texas, Houston, TX, for Defendant-Appellant Christopher Emory Cramer.

Before Stewart, Duncan, and Wilson, Circuit Judges.

Carl E. Stewart, Circuit Judge:

We withdraw our prior opinion in United States v. Fackrell , No. 18-40598, 2021 WL 926905 (5th Cir. Mar. 11, 2021). The following opinion is substituted therefor.

Defendants Ricky Fackrell and Christopher Cramer were convicted and sentenced to death for the prison murder of Leo Johns, a fellow inmate. They appeal their convictions and sentences on numerous grounds. We AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

Ricky Allen Fackrell and Christopher Cramer were imprisoned at USP Beaumont. Both were convicted of the June 2014 prison murder of Leo Johns. Fackrell was a lieutenant in the Soldiers of Aryan Culture ("SAC"), a prison gang whose members abstained from drinking, drugs, and gambling. Members were recruited based on their beliefs in white supremacy and paganism. Cramer was a general in the SAC, and Johns was a member.

1. Fackrell

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 stabbed Johns with shanks in an inmate's cell. 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 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."

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 penalty-phase 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 for severance 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, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). The district court still has discretion to grant relief. Id . at 539, 113 S.Ct. 933. "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 innocence.’ " United States v. Mitchell , 484 F.3d 762, 775 (5th Cir. 2007) (quoting Zafiro , 506 U.S. at 539, 113 S.Ct. 933 ).

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 is in the record, and mere surplusage of this evidence does not compel severance. See United 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, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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...