Designated for publication
- U.S. v. Fackrell, 18-40598, appeal from E.D. Tex.
- Stewart, J. (Stewart, Duncan, Wilson), criminal, sentencing, death penalty
- Affirming convictions and death sentences of co-defendants for first-degree murder of fellow inmate in prison shanking to enforce rules of the Soldiers of Aryan Culture (“SAC”) prison gang.
- The Court held that the district court did not abuse its discretion in denying the defendants’ motions to sever. The Court found that there was no substantial prejudice to each co-defendant’s case from the introduction of the other’s statements at the guilt phase or their respective criminal and mental health backgrounds during the penalty phase.
- The Court held that there was no plain error in findings that they each had one of the four requisite mental states for triggering availability of the death penalty under 18 U.S.C. § 3591(a)(2), noting that it did not matter whether the coroner ascribed the fatal blow to one or the other of the co-defendants, because the requisite mental state can arise from an aiding-and-abetting of the killing.
- The Court held there was no prosecutorial misconduct in the government’s argument during the penalty phase that the defendants could pose a future danger because they could be released in the future from maximum-security lockdown into a less-secure prison environment; nor in the government’s questioning about whether a convicted murderer could pose a future danger if his conviction was overturned on appeal. The Court also held that there was no prosecutorial misconduct in the government’s argument that the mitigation evidence at the penalty phase, even if true, did not make the crime any less severe. The Court held likewise with regard to government arguments for the jury to provide justice to the victim.
- The Court held that prison psychologist testimony offered as rebuttal by the government, by psychologists who treated one of the co-defendants, did not violate his right to be free from self-incrimination, because “[u]nder 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.” The Court also held that this testimony did not violate his Sixth Amendment right to counsel when he didn’t have counsel present during those psychologist visits, because there was no evidence that “the doctors’ evaluations were carried out in order to assess his future dangerousness…. Instead, the doctors’ examinations were routine and in keeping with their duty of care to all inmates.” The Court also held the testimony did not violate the doctor-patient privilege because it is not clear that the privilege applies in the sentencing phase of criminal trials, it was therefore not plain error to admit the testimony, and the defendant himself put his mental health at issue.
- The Court held there was no error in the district court’s denial of defendants’ motion to admit evidence from the victim’s family’s civil suit against the prison officials, because that evidence risked confusion of the jury.
- The Court held there was no error in the district court’s exclusion from evidence of a plea deal for a co-defendant in an unrelated prison murder.
- The Court held there was no error in the introduction during the penalty phase of an assault by one of the co-defendants on which he had been subsequently acquitted. “[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.” (Internal quotation marks and citation omitted).
- The Court held that the district court did not plainly err in marshaling the evidence on the penalty phase in presenting the jury instructions. “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. … 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.”
Unpublished
- Marzett v. Gusman, 19-30793, appeal from E.D. La.
- per curiam (Higginbotham, Jones, Costa), § 1983
- Affirming summary judgment dismissal of claims arising from injury during transportation to courthouse during pre-trial detention.
- Moler v. Gasaway, 19-31025, appeal from W.D. La.
- per curiam (Higginbotham, Smith, Oldham), prisoner suit
- Dismissing as frivolous appeal from dismissal of prisoner claims on basis of lack of jurisdiction.
- Serrano v. Comstok-King, 19-50667, appeal from W.D. Tex.
- per curiam (Higginbotham, Jones, Costa), prisoner suit
- Affirming dismissal of prisoner claims for failure to state a claim.
- Guzman v. Garland, 19-60579, petition for review of BIA order
- per curiam (King, Smith, Wilson), immigration
- Dismissing El Salvadoran citizen’s petition for review of BIA order affirming the denial of his motion to reopen.
- Tol v. Garland, 19-60904, petition for review of BIA order
- per curiam (Clement, Higginson, Engelhardt), immigration
- Denying Guatemalan citizen’s petition for review of BIA order dismissing his appeal of the IJ’s denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
- U.S. v. Woods, 20-10144, appeal from N.D. Tex.
- per curiam (King, Smith, Wilson), criminal, sentencing
- Affirming conviction for conspiracy to commit mail and wire fraud and three counts of wire fraud; and sentence to a total of 87 months of imprisonment, two years of supervised release, $50,000 forfeiture money judgment, restitution in the amount of $337,951.06, and a $25,000 fine.
- U.S. v. Fragoso, 20-20443, appeal from S.D. Tex.
- per curiam (Jones, Barksdale, Stewart), criminal, compassionate release, mootness
- Dismissing as moot appeal from denial of motion for compassionate release.
- Green v. United Parcel Service, Inc., 20-30340, appeal from E.D. La.
- per curiam (King, Elrod, Willett), Americans with Disabilities Act, Title VII, employment discrimination
- Affirming summary judgment dismissal of UPS from plaintiff’s ADA and Title VII claims.
- Savoy v. Kroger Co., 20-30529, appeal from W.D. La.
- per curiam (Wiener, Southwick, Duncan), negligence
- Affirming summary judgment dismissal of negligence claims against defendants after grocery bag split and iced tea containers fell on plaintiff’s foot.
- Perkins v. Mischtian, 20-50707, appeal from W.D. Tex.
- per curiam (Davis, Stewart, Dennis), service of process
- Affirming dismissal for failure to properly effect service of process within 90 days.
- U.S. v. Avalos-Sanchez, 20-50828, appeal from W.D. Tex.
- per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
- Granting summary affirmance of 24-month within-guidelines prison term imposed following defendant’s guilty plea for illegal reentry after removal
- Singh v. Garland, 20-60027, petition for review of BIA order
- per curiam (King, Smith, Wilson), immigration
- Denial of Indian citizen’s petition for review of BIA order dismissing his appeal from a decision of the IJ denying asylum, withholding of removal, and protection under the CAT.
- Lewis v. Doe, 20-60180, appeal from S.D. Miss.
- per curiam (Higginbotham, Smith, Oldham), prisoner suit
- Dismissing as frivolous appeal from dismissal for failure to exhaust administrative remedies a prisoner suit alleging failure to protect the plaintiff from physical attack.
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