Denial of severance in capital trial of two prisoners was not an abuse of discretion; jury presumably followed court's instructions, the extensive priors of one co-deft were not unduly prejudicial, and the co-deft's co-conspirator's admissions would have been considered anyway in a separate trial as a statement against interest.
Jury not unduly prejudiced by disclosure at trial that one co-deft had murdered another inmate by stomping on his head.
Since both defts were convicted of beating the victim to death, no plain error in finding that, even if one of them only abetted in the actual murder, the mental state would be sufficient for the death penalty.
No abuse of discretion in arguments about future dangerousness discussing other prisoners who had committed prison murders after commutation of death sentence.
No plain error in discussion of commutation of death sentence that might suggest to the jury that the ultimate responsibility for the sentence might be elsewhere.
No abuse of discretion in government's characterization of mitigation evidence as mitigation of the crime rather than penalty-phase considerations, as the government later appropriately characterized the role of mitigation evidence generally, and a curative instruction was given.
No plain error in government statements about doing justice and the deft's intent to kill.
No plain error in introduction of evidence from unmirandized psychotherapist sessions in rebuttal, since deft had placed his mental health in issue by raising past difficulties in mitigation.
No error in the Sixth Amendment deprivation of counsel during the psychotherapist's examination, as the deft did not establish that the interview was to assess future dangerousness.
Common law psychotherapist evidentiary privilege does not exist in the penalty phase of a capital trial; if it did exist, violations here would not be plain error. Potential circuit split flagged.
No plain error in government's mitigation phase rebuttal witness' straying into discussions of present events.
Exclusion of warden's statement describing victim's conduct that led to the murder was not an abuse of discretion, as the warden was a single deft in a civil suit, and not speaking for the Bureau.
No abuse of discretion in excluding evidence of plea deal in second murder that was introduced as an aggravating factor in the penalty phase.
No plain error in introduction of acquitted conduct in future dangerousness consideration.
No error in categorical analysis of priors as aggravating factors, since the alternate holding of non-statutory aggravators would not have been perceived as less convincing if the statutory factors had been excluded.
Given circuit precedent that Hobbs Act Robbery is a crime of violence, the conviction survives as an aggravator despite the recent Supreme Court holding on the method of identifying crimes of violence by means of a statute's residual clause; nonviolent Hobbs Act Robbery would be Hobbs Act Extortion.
Jury form that requires juror to first determine the existence of a factual situation before deciding that it is mitigating does not offend the statute that says that a finding of the existence of the fact establishes the grounds of mitigation.
Court's instructions on future dangerousness did not improperly marshal the evidence for the government.
Denial of non-unanimity instruction was not an abuse of discretion; refusing to answer a jury deliberations question about non-unanimity was not error.
Conferences allegedly missing from record do not justify reversal; the conferences were neither a hearing or trial nor a judicial proceeding.
Cumulative error unavailable, since no errors were found.
USA v. Fackrell, et al
