Opposition Brief — Ricky Allen Fackrell, Petitioner v. United States
Supreme Court briefFeb 14, 2022
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Nos. 21-5991 and 21-5995
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
RICKY ALLEN FACKRELL, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
CHRISTOPHER EMORY CRAMER, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
JOHN M. PELLETTIERI
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
CAPITAL CASES
QUESTIONS PRESENTED
1.
Whether petitioners were entitled to reversal of their
convictions and death sentences on the ground that the district
court denied petitioners’ motion under Federal Rule of Appellate
Procedure 10(c) to supplement the record on appeal with proposed
reconstructions of four in-chambers discussions with counsel for
the parties that were not recorded by a court reporter, where the
court
of
appeals
determined
that
the
discussions
were
not
substantial or significant in the circumstances of this case.
2.
Whether the district court abused its discretion by
allowing the government to respond to expert opinion testimony
from defense witnesses that petitioners could be housed safely at
a maximum-security prison, and therefore could not be a danger to
others in the future, with evidence of violent conduct by inmates
at that facility.
3.
Whether
the
district
court
reversibly
erred
in
responding to a jury note, inquiring about the procedures that
would apply if the jury could not reach a unanimous verdict, with
a note that the jury should “Please continue your deliberations.”
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (E.D. Tex.):
United States v. Cramer, No. 16-CR-26 (Jan. 30, 2020)
United States v. Cramer, No. 16–CR–26 (May 8, 2018)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 21-5991
RICKY ALLEN FACKRELL, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
No. 21-5995
CHRISTOPHER EMORY CRAMER, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (21-5991 Pet. App. 1a34a) is reported at 991 F.3d 589. 1
The opinions and orders of the
district court (Pet. App. 35a-42a, 43a-49a) are not published in
Citations to the “Pet. App.” in this brief refer to the
appendix to the petition for a writ of certiorari in Fackrell v.
United States, No. 21-5991 (Oct. 14, 2021).
1
2
the Federal Supplement but are available at 2018 WL 7822169 and
2020 WL 8920386.
JURISDICTION
The judgment of the court of appeals was entered on March 12,
2021.
A petition for rehearing was denied on May 17, 2021 (Pet.
App. 55a-56a).
The petitions for writs of certiorari were filed
on October 14, 2021.
The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Eastern District of Texas, petitioners were each convicted
of first-degree murder, in violation of 18 U.S.C. 1111.
D. Ct.
Doc. 671, at 1 (June 13, 2018) (Cramer Judgment); D. Ct. Doc. 673,
at
1
(June
13,
recommendation,
2018)
the
(Fackrell
district
court
Judgment).
imposed
Cramer Judgment 2; Fackrell Judgment 2.
affirmed.
1.
On
the
capital
jury’s
sentences.
The court of appeals
Pet. App. 1a-34a.
In 2014, petitioners -- who were then inmates at the
United States Penitentiary in Beaumont, Texas, and members of a
nationwide prison gang known as the Soldiers of Aryan Culture -murdered fellow inmate and gang member Leo Johns for violating
gang rules against drugs, alcohol, and gambling.
Pet. App. 2a-
4a; see Gov’t C.A. Br. 4-5 (collecting trial evidence).
Although
members of the gang offered to carry out punishments short of
3
death, petitioner Cramer -- the gang’s ranking member at the
Beaumont prison -- decided to kill Johns instead.
5-6.
Gov’t C.A. Br.
Petitioner Fackrell, the gang’s second-in-command at the
prison, volunteered to carry out the punishment.
Id. at 6-7.
After postponing the murder to avoid cancellation of a visit
by
Fackrell’s
family,
petitioners
attacked
Johns
inmate’s cell with two long knives made of steel.
in
another
Gov’t C.A. Br.
6-8. Petitioner Cramer repeatedly stabbed Johns in the front while
petitioner Fackrell stabbed him in the back.
Id. at 8.
When Johns
briefly got away and made for the door, Fackrell stabbed him in
the eye and around his face.
Ibid.
Petitioners left Johns for
dead and shoved his body under a bunk, but Johns later managed to
crawl to his cell and open the door.
Id. at 8-9.
Seeing this,
petitioner Cramer went back and attacked Johns again.
Johns died of multiple stab wounds.
Id. at 9.
Gov’t C.A. Br. 9.
A
forensic pathologist found a total of 68 stab wounds on his face,
chest, back, legs, arms, and buttocks, including seven stab wounds
to the lungs.
2.
Id. at 9-10.
A grand jury returned an indictment charging petitioners
with first-degree murder, in violation of 18 U.S.C. 1111, and
conspiracy to commit murder, in violation of 18 U.S.C. 1117.
Superseding
Indictment
1-2.
conspiracy charge before trial.
The
government
dismissed
See Pet. App. 35a.
the
A jury found
petitioners guilty of first-degree murder and, after a separate
4
penalty-phase proceeding, recommended capital sentences for both
petitioners.
sentences.
a.
Id. at 1a-4a.
The district court imposed such
Id. at 4a.
At the penalty phase of the trial, the jury was required
under the Federal Death Penalty Act of 1994, 18 U.S.C. 3591 et
seq.,
to
determine
aggravating
with
factors
respect
proved
by
to
each
petitioner
the
government
whether
sufficiently
outweighed any mitigating factors proved by the petitioner to
justify the death penalty.
373, 377-378 (1999).
See Jones v. United States, 527 U.S.
As relevant here, the government alleged as
an aggravating factor, inter alia, that each petitioner would be
a danger to others in the future, while petitioners alleged as
mitigating factors, inter alia, that they could be reformed or
safely housed at the federal maximum-security prison in Florence,
Colorado.
See Pet. App. 2a-4a.
Prior to trial, the government indicated that it would “not
introduce evidence of instances of violence by inmates other than
Cramer
and
Fackrell
to
affirmatively
establish”
their
future
dangerousness, but that such topics might be relevant -- on crossexamination of defense experts or on rebuttal -- to respond to
evidence
presented
by
petitioners.
Pet.
App.
45a.
In
its
sentencing phase case-in-chief, the government introduced evidence
about
petitioners’
past
conduct,
including
evidence
of
their
repeated acts of violence in prison. See C.A. ROA 8948-8953, 9273-
5
9275 (government’s opening statements).
Petitioners, however,
introduced evidence about other prisoners as part of their own
defense cases.
Cramer introduced expert testimony from Roy Timothy Gravette,
a former employee of the Bureau of Prisons (BOP).
10161.
C.A. ROA 10159-
Gravette testified that if Cramer received a sentence of
life without parole, he would likely be housed at the maximumsecurity federal prison in Florence, Colorado.
Id. at 10186.
Gravette testified about the security procedures at the prison,
see, e.g., id. at 10190-10203; stated that he was not aware of
anyone escaping from a cell in the 24 years the prison had been in
operation, id. at 10204-10205; and gave his opinion that petitioner
Cramer could be housed at the prison in a manner that would be
safe for himself, other inmates, and prison staff, id. at 1021910220.
On cross-examination, the government showed a video and
questioned Gravette about an episode in which an inmate at the
prison (Ishmael Petty) had gotten out of his cell and attacked
three prison employees; the video and questioning caused Gravette
to acknowledge that his testimony on direct examination had been
mistaken.
Id. at 10233-10236.
The government also elicited
testimony that at a federal capital sentencing hearing for another
defendant (David Paul Hammer), Gravette had testified that Hammer
could be housed safely in a federal penitentiary, but that Hammer
6
subsequently murdered another inmate while serving a life sentence
in federal prison.
Id. at 10267-10271.
Fackrell offered expert testimony from another former BOP
employee, Mark Bezy. C.A. ROA 10773-10776. On direct examination,
Bezy testified about the security procedures at the maximumsecurity prison in Colorado and specifically testified about the
incident in which Petty attacked three prison employees.
at 10823-10833.
See id.
Bezy also testified about an inmate housed at the
prison (Tommy Silverstein) who had murdered three inmates and a
BOP staff member while in federal prison.
10839-10840.
Id. at 10834-10836,
And Bezy gave his opinion that Fackrell could be
housed safely at the prison.
Id. at 10843.
On cross-examination,
the government questioned Bezy further about the Petty incident.
Id. at 10872-10874.
In its rebuttal case, the government introduced testimony
from David Berkebile, a former BOP employee who was the warden of
the maximum-security prison in Colorado between 2012 and 2014.
C.A. ROA 11148-11151.
Berkebile testified about the procedures at
the prison and about instances of violence by prisoners there,
including incidents involving Petty.
b.
During
jury
selection,
See id. at 11194-11211.
petitioners
had
requested
permission to discuss with potential jurors what would happen if
the jury failed to reach a unanimous verdict at the penalty phase
-- namely, that the district court would sentence petitioners to
7
life in prison without the possibility of release.
Br. 118.
See Gov’t C.A.
The district court had denied the motion, noting that
this Court had held in Jones, supra, that a jury instruction as to
the effect of jury deadlock in federal capital cases is not
constitutionally required.
See C.A. ROA 2921-2923.
Consistent with that ruling -- and without objection by
petitioners -- the district court, when instructing the jury at
the penalty phase of the trial, did not instruct the jury regarding
the result of a possible failure to reach a unanimous verdict.
See C.A. ROA 11401-11406.
The court did instruct the jury,
consistent with petitioners’ own proposed instructions, that if
jurors “need[ed] to communicate with [the court] during [their]
deliberations, the foreperson should write the message and give it
to the court security officer,” and the court would “either reply
in writing or bring you back into the courtroom to respond to your
inquiry,” id. at 11460, 11527-11528; see D. Ct. Doc. 309, at 21
(Jan. 10, 2018) (petitioners’ proposed jury instructions).
On the first day of the penalty-phase jury deliberations, the
jury sent a note to the district court asking, “What is the process
if we are not unanimous with our verdict?”
Pet. App. 52a.
The
court disclosed the note to petitioners and their counsel in open
court and informed the parties that it intended to respond to the
jury by stating, “Please continue your deliberations.”
Ibid.
Petitioners renewed their previous request to inform the jury that
8
the court would impose a sentence of life without parole if the
jury could not reach a unanimous verdict, and the court denied the
request for the same reasons that it had denied petitioners’
earlier motion.
Id. at 52a-54a.
The court explained that it
wanted the jury to continue deliberations in the hope of reaching
a unanimous verdict, noting that the jury had not informed the
court it was hopelessly deadlocked and assuring the parties that
the court would deal with such circumstances if they were to arise.
Ibid.
The court sent a note to the jurors instructing them to
“[p]lease continue your deliberations.”
original).
Id. at 31a (brackets in
The following day, the jury unanimously returned a
verdict recommending a sentence of death for both petitioners.
D. Ct. Doc. 582 (May 10, 2018); D. Ct. Doc. 583 (May 10, 2018).
c.
Petitioners filed notices of appeal in June 2018.
See
D. Ct. Doc. 686 (June 20, 2018); D. Ct. Doc. 688 (June 20, 2018).
More than 18 months later, while the appeal was still pending,
they filed a motion under Federal Rule of Appellate Procedure 10(c)
asking
the
district
court
to
settle
and
approve
a
proposed
statement regarding an unrecorded discussion between the district
court and counsel in the district court’s chambers on May 7, 2018,
during trial.
Pet. App. 77a-86a.
According to petitioners, the
subject of the discussion was the prospective testimony of the
government’s final witness, Elizabeth Rose, who was housed in the
holding cell next to petitioners during the trial and reported to
9
authorities that she overheard petitioners making fun of the
prosecutor’s opening statement and laughing about stabbing Johns
74 times.
See id. at 32a-33a.
While that Rule 10(c) motion was
pending, petitioners filed another motion seeking, as relevant
here,
settlement
and
approval
of
statements
additional unrecorded in-chambers discussions.
The district court denied the motions.
regarding
three
Id. at 89a-109a.
Pet. App. 35a-42a.
The court expressed doubt that Rule 10(c) -- which permits a court
to settle and approve “a statement of the evidence or proceedings”
if the “transcript of a hearing or trial is unavailable,” Fed. R.
App. P. 10(c) -- applied to the “off-the-record conferences held
in
chambers,”
petitioners,
Pet.
App.
36a-37a.
The
when
they
participated
court
in
observed
the
that
in-chambers
discussions, had the opportunity to return to the courtroom to
make a record or to request a court reporter’s presence at the
conferences.
Id. at 37a.
And the court indicated that, “[i]n any
event,” because “nearly nineteen months [had] elapsed from the
date of the in-chambers conference and [petitioners’] Motion for
Statement,” the court was “unable to remember the specifics of the
conference
with
sufficient
clarity
[petitioners’] proposed statement.”
to
settle
Id. at 38a.
and
approve
The court noted
that the government also did “not recall the specifics of the
conference” and therefore could not “serve objections or proposed
amendments to [petitioners’] proposed statements.”
Ibid.
10
3.
The court of appeals affirmed.
Pet. App. 1a-34a.
The court of appeals found that even assuming petitioners had
properly preserved an objection to the admission of testimony about
violence
by
other
inmates
at
the
maximum-security
prison
in
Florence, Colorado, the district court did not abuse its discretion
by permitting that testimony.
Pet. App. 9a-10a.
The court of
appeals observed that “[t]he 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,’”
Pet.
App.
10a
(quoting
18
U.S.C.
3593(c)),
and
explained that the statute permits evidence showing that execution
“is the only means of eliminating the threat” that a capital
defendant would pose “to the safety of other inmates or prison
staff,” ibid. (internal quotation marks and citation omitted).
The court of appeals also determined that the district court
did not err in providing a written response to the juror note
asking what would happen if the jury was not unanimous with its
verdict.
Pet. App. 31a.
The court of appeals further determined
that the district court did not abuse its discretion by declining
to provide a supplemental instruction regarding the consequences
of a non-unanimous jury.
Ibid.
In doing so, the court of appeals
cited this Court’s decision in Jones, observed that “Congress did
not require such an instruction among the mandatory instructions
that the district court must give,” ibid., and noted that the jury
11
instructions “explained that each juror must consider the evidence
individually to render a verdict” and “instructed the jurors that
the verdict must represent the judgment of each of them and that
they each must decide the case for themselves,” ibid.
Finally, the court of appeals found no reversible error in
the district court’s denial of petitioners’ motion to settle and
approve
their
proposed
statements
regarding
the
in-chambers
discussions that were not recorded by a court reporter.
32a-33a.
Pet. App.
The court of appeals determined that the in-chambers
discussion about the testimony of Rose was not a “hearing or trial”
within the meaning of Federal Rule of Appellate Procedure 10(c).
Pet. App. 33a.
The court of appeals also explained that, if a
district court is unable to reconstruct a missing portion of the
record and the defendant is represented by new counsel on appeal,
reversal is warranted only if the missing portion is “substantial
and significant.”
Id. at 32a.
The court of appeals concluded
that petitioners had failed to demonstrate such substantiality and
significance here.
See id. at 33a.
ARGUMENT
Petitioners renew (21-5991 Pet. 11-40; 21-5995 Pet. 11-37)
their contentions that their convictions and capital sentences
should be reversed because the district court (1) declined to
approve
and
discussions
settle
that
their
were
not
proposed
statements
recorded
by
a
court
of
in-chambers
reporter;
(2)
12
permitted the government to introduce evidence about violence by
inmates
at
the
federal
maximum-security
prison
in
Florence,
Colorado in order to respond to petitioners’ arguments that they
could be detained there safely; and (3) responded to a jury
question
in
writing
and
declined
to
provide
a
supplemental
instruction regarding the consequences of a non-unanimous jury at
the penalty phase of the case.
The court of appeals correctly
rejected all three contentions, and its decision does not implicate
any circuit conflict warranting this Court’s review. The petitions
for writs of certiorari accordingly should be denied.
1.
Petitioners contend (21-5991 Pet. 11-24; 21-5995 Pet.
14-25) that the district court committed structural error by
declining to approve and settle proposed statements regarding
unrecorded in-chambers discussions under Federal Rule of Appellate
Procedure 10(c), and that the court of appeals should accordingly
have set aside their convictions and sentences.
That contention
is incorrect and does not implicate any conflict among the courts
of appeals that warrants this Court’s review in this case.
a.
Rule 10(a) of the Federal Rules of Appellate Procedure
provides that the record on appeal includes “the transcript of
proceedings, if any.”
Fed. R. App. P. 10(a)(2).
Rule 10(c)
provides that “[i]f the transcript of a hearing or trial is
unavailable, the appellant may prepare a statement of the evidence
or
proceedings
from
the
best
available
means,
including
the
13
appellant's recollection.”
Fed. R. App. P. 10(c).
The appellant
must serve the proposed statement on the appellee, who may serve
“objections or proposed amendments.”
Ibid.
“The statement and
any objections or proposed amendments must then be submitted to
the district court for settlement and approval.”
Ibid.
In arguing that the lower courts misapplied Rule 10(c),
petitioners focus primarily (e.g., 21-5991 Pet. 12, 14; 21-5995
Pet. 11, 16) on the district court’s May 7, 2018 in-chambers
discussion of potential testimony by Rose.
In their petitions for
writs of certiorari, they assert that during that discussion, the
district court “heard arguments on a defense motion to exclude”
Rose’s testimony.
21-5991 Pet. 12; see id. at 14 (same); 21-5995
Pet. 11, 16 (same).
The proposed statement that petitioners
submitted for resolution to the district court, however, does not
appear
to
reflect
any
permitted to testify.
argument
about
whether
See Pet. App. 83a-85a.
Rose
would
be
Instead, according
to the proposed statement, the participants in the discussion -who included counsel for petitioners and the government as well as
counsel for Rose -- explained that petitioner Cramer had filed a
written motion to exclude Rose’s testimony; discussed whether one
of Cramer’s attorneys who had previously represented Rose would be
required to withdraw from Cramer’s defense if Rose testified; and
agreed that Rose should finalize an agreed-upon plea deal in her
own case before providing any testimony.
Ibid.
The court also
14
emphasized, according to petitioners’ proposed statement, that the
parties should “get this on the record.” Id. at 85a. And following
the in-chambers discussion, the parties did just that:
the court
held a recorded, in-court hearing at which it heard argument on
the written motion to exclude Rose’s testimony, then entered a
written
order
denying
that
motion.
See
C.A.
ROA
8431-8438
(hearing); id. at 22114-22119 (written motion); id. at 22140 (order
denying motion).
Given those particular facts, the court of appeals reasonably
determined
(Pet.
App.
33a)
that
the
“discussion
of
Rose’s
testimony” at the in-chambers conference “was not a ‘hearing or
trial’ within the meaning of Rule 10.”
Petitioners’ proposed
statement of what occurred during that in-chambers conference does
not indicate that the district court heard argument about whether
Rose’s
testimony
would
be
admissible
at
trial;
instead,
the
proposed statement indicates that the discussion focused primarily
on questions of timing in Rose’s separate case and the logistics
of having her enter a guilty plea in that case before a magistrate
judge under Federal Rule of Criminal Procedure 11(c)(1)(C).
See
Pet.
and
App.
85a.
A
discussion
of
those
sorts
of
timing
logistical details, carried out in an unrecorded conversation in
the judge’s chambers with counsel for the defense and prosecution
as well as counsel for a potential witness, need not be considered
a “hearing or trial” for purposes of Federal Rule of Appellate
15
Procedure 10(c) -- particularly where, as here, the discussions
purportedly
included
the
district
court’s
direction
that
the
parties should make a record regarding the matter and the parties
did so at an in-court hearing held on the same day.
See C.A. ROA
8431-8438.
Petitioners also refer in passing to a handful of other inchambers discussions that were not recorded, as to which the
district court also denied their motion to approve statements under
Rule 10(c).
See 21-5991 Pet. 14, 21, 23; 21-5995 Pet. 25.
The
court of appeals did not address whether those other in-chambers
discussions qualified as “hearing[s] or trial[s]” about which a
statement
could
Procedure 10(c).
be
approved
under
See Pet. App. 33a.
Federal
Rule
of
Appellate
Instead, the court rejected
petitioners’ argument as to those in-chambers discussions on a
different ground, which it recognized also applied to the inchambers discussion about Rose’s case.
Specifically, the court
determined
demonstrated
that
petitioners
had
“not
that
these
[asserted] omissions are substantial or significant,” ibid., as
they had acknowledged that they were required to do in order to
obtain reversal, see Fackrell C.A. Br. 137 (“For this [c]ourt to
reverse, the missing portion of the record must be substantial and
significant.”); Cramer C.A. Br. 178.
Although petitioners acknowledge (21-5991 Pet. 8; 21-5995
Pet. 9, 11) the court of appeals’ determination that any omissions
16
were not substantial or significant, they make no meaningful
attempt to rebut that case-specific determination. 2 Nor could they
do so successfully, given the nature of the discussions that
petitioners themselves contend occurred during the in-chambers
meetings and the district court’s diligence in ensuring those
matters could be subsequently addressed on the record with an
opportunity for objections. See, e.g., C.A. ROA 8431-8438 (hearing
on testimony by Rose).
Instead, petitioners contend that a “district court’s failure
to ensure that the court reporters record all proceedings,
* * *
and to allow statements of them to be included in the record, are
structural
errors.”
21-5991
Pet.
21;
see
21-5995
Pet.
24
(similar).
Petitioners did not argue structural error below, and
identify no reason that this Court should consider in the first
instance whether their claims should bear that label.
See Adarand
Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam)
Petitioner
Fackrell
contends
(Pet.
21),
without
elaboration, that “[t]he record did not reveal the bases for
constitutional issues that arose during trial, such as the strikes
of all Black venire persons and the factors around Fackrell’s
absence from a day of the penalty phase.” As to the first issue,
parties are not ordinarily required to provide explanations for
peremptory strikes, and petitioners –- high-ranking leaders of a
white-supremacist prison gang -- have never contended that the
government intentionally excluded black jurors on the basis of
their race. As to the second issue, the district court addressed
on the record Fackrell’s refusal to come to court for one day of
the sentencing hearing, see C.A. ROA 11129-11137, and Fackrell
does not argue that his voluntary absence provided a basis for
overturning his conviction or sentence.
2
17
(“[T]his is a court of final review and not first view.”) (citation
omitted).
In any event, the argument lacks merit.
This Court has
found structural errors “only in a very limited class of cases,”
Neder v. United States, 527 U.S. 1, 8 (1999) (citation and internal
quotation marks omitted), and it has applied a “strong presumption”
that errors are not structural when “the defendant had counsel and
was tried by an impartial adjudicator,” United States v. Marcus,
560 U.S. 258, 265 (2010) (citation omitted).
Petitioners provide
no sound basis to expand the narrow class of errors deemed so grave
as
to
be
structural
proceedings
in
inconsequential.
a
to
include
federal
the
failure
criminal
case,
to
no
record
all
matter
how
The right to appeal in criminal cases derives
from statute, not the Constitution, as does the requirement to
record proceedings in federal cases.
See Jones v. Barnes, 463
U.S. 745, 751 (1983) (“There is, of course, no constitutional right
to an appeal.”); 28 U.S.C. 753 (Court Reporter’s Act).
And the
standards applied by the courts of appeals -- which generally
require,
at
a
minimum,
transcripts
are
protection
of
a
substantial
those
showing
and
statutory
that
any
significant
rights.
See
omissions
in
the
--
provide
ample
pp.
19-21,
infra
(describing courts of appeals’ approach). 3
Moreover, petitioners’ own submissions illustrate that it
would sometimes be contrary to a defendant’s best interests to
require on-the-record transcription of all in-chambers discussions.
According to petitioners’ proposed statement recounting a June 7,
2018 in-chambers discussion about petitioners’ reasons for being
3
18
b.
The court of appeals’ separate determinations that the
in-chambers discussion about testimony by Rose was not a “hearing
or trial” covered by Federal Rule of Appellate Procedure 10(c),
and that relief was in any event unwarranted because none of the
purported omissions were “substantial or significant,” Pet. App.
33a, do not implicate any conflicts among the courts of appeals
that warrant this Court’s review in this case.
Petitioners contend (21-5991 Pet. 12-14; 21-5995 Pet. 14-16)
that the court of appeals’ interpretation of “hearing or trial,”
Fed. R. App. P. 10(c), conflicts with interpretations adopted by
other circuits.
That contention is incorrect.
determined
that
the
testimony
was
not
in-chambers
conversation
a
or
“hearing
trial,”
While the court
regarding
it
made
Rose’s
no
such
determination with respect to the other in-chambers discussions
petitioners had sought to address under Rule 10(c), and the court
did
not
otherwise
indicate
categorically excluded.
that
in-chambers
Pet. App. 33a.
discussions
are
Accordingly, no conflict
exists between the decision below and the decisions petitioners
identify (21-5991 Pet. 12-14; 21-5995 Pet. 14-16) in which other
courts indicated that Rule 10(c) would apply to certain in-chambers
discussions of, for example, jury instructions, see United States
absent from court, Cramer’s attorney told the district court that
he could not discuss some of Cramer’s reasons “on the record”
because it related to “prison politics * * * and would cause
Cramer problems if this information were in [a] transcript.” Pet.
App. 107a.
19
v. Savage, 970 F.3d 217, 240 (3d Cir. 2020), cert. denied, 142
S. Ct. 481 (2021), or a defendant’s potential plea bargain, see
United
States
v.
Mills,
597
F.2d
693,
698
(9th
Cir.
1979).
Petitioners identify no decision in which a court of appeals held
that an in-chambers discussion like the one involving Rose’s
testimony, which focused largely on the logistics of her guilty
plea in a separate case, was a “hearing or trial” under Federal
Rule of Appellate Procedure 10(c), and the court of appeals’ factspecific determination here does not warrant this Court’s review.
The
court
of
appeals’
requirement
that
any
omission
be
“substantial or significant” in order to merit relief, Pet. App.
33a, also does not implicate any division of authority warranting
the Court’s review in this case.
The courts of appeals have
generally held that the failure of a court reporter to record all
trial proceedings does not automatically require reversal of a
conviction.
See United States v. Brand, 80 F.3d 560, 563 (1st
Cir. 1996), cert. denied, 510 U.S. 1077 (1997); Savage, 970 F.3d
at 240 n.10; United States v. Gillis, 773 F.2d 549, 554 (4th Cir.
1985); United States v. Gieger, 190 F.3d 661, 667 (5th Cir. 1999);
United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985), cert.
denied, 474 U.S. 1068, 474 U.S. 1069, and 475 U.S. 1017 (1986);
United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990), cert.
denied, 499 U.S. 942 (1991); United States v. Kelly, 167 F.3d 436,
438 (8th Cir. 1999); United States v. Antoine, 906 F.2d 1379, 1381
20
(9th Cir.), cert. denied, 498 U.S. 963 (1990); United States v.
Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993).
Rather,
where trial counsel also represents the defendant on appeal, the
defendant must demonstrate specific prejudice to his ability to
present his claims on appeal in order to obtain relief.
Gieger,
190 F.3d at 667; see Kelly, 167 F.3d at 438; Brand, 80 F.3d at
563; Preciado-Cordobas, 981 F.2d at 1212-1213; United States v.
Sierra, 981 F.2d 123, 125 (3d Cir. 1992), cert. denied, 508 U.S.
967 (1993); Nolan, 910 F.2d at 1560; Antoine, 906 F.2d at 1381;
Gillis, 773 F.2d at 554; Gallo, 763 F.2d at 1530-1531.
“Prejudice
is present when the district court’s failure to comply with [the
Court Reporter Act] makes it impossible for the appellate court to
determine if the district court has committed reversible error.”
Nolan, 910 F.2d at 1560.
The majority of the courts of appeals require the defendant
to demonstrate specific prejudice even when the defendant is
represented by new counsel on appeal.
See Kelly, 167 F.3d at 438;
Brand, 88 F.3d at 563; Sierra, 981 F.2d at 125; Nolan, 910 F.2d at
1557, 1560; Antoine, 906 F.2d at 1381; Gillis, 773 F.2d. at 555;
Gallo, 763 F.2d at 1530-1531.
The Fifth and Eleventh Circuits,
like the court of appeals here, apply a potentially more defendantfavorable standard and will reverse a conviction where there has
been a substitution of counsel on appeal if the omissions or
inaccuracies in the transcript are “substantial and significant,”
21
rather
than
prejudice.
requiring
a
defendant
to
demonstrate
specific
Preciado-Cordobas, 981 F.2d at 1212; United States v.
Selva, 559 F.2d 1303, 1306 (5th Cir. 1977).
As already discussed,
the court of appeals evaluated petitioners’ claims under that
potentially more lenient standard and determined that petitioners
still were not entitled to relief.
See Pet. App. 33a.
Any
disagreement among the courts of appeals about whether to require
a potentially stricter standard than the defendant-favorable one
the court of appeals applied here accordingly has no bearing on
the proper outcome in this case.
c.
The court of appeals’ case-specific application of Rule
10(c) also does not present an issue of prospective importance
warranting this Court’s review.
Rule 10(c) is not the exclusive
mechanism to reconstruct missing parts of the record.
While Rule
10(c) permits appellants to use a “statement” to reconstruct what
transpired at a “hearing or trial” when a transcript of such
proceedings is “unavailable,” Fed. R. App. P. 10(c), Rule 10(e)
separately provides that an “omission” from the record “may be
corrected and a supplemental record may be certified and forwarded”
through stipulation of the parties, by the district court, or by
the court of appeals, Fed. R. App. P. 10(e)(2).
Indeed, courts
have used Rule 10(e) to supplement the record to reflect court
conferences and other proceedings that were not transcribed by a
court reporter.
See, e.g., United States v. Cashwell, 950 F.2d
22
699, 703–704 (11th Cir. 1992); Hanson v. Parkside Surgery Center,
872 F.2d 745, 747–748 & n.4 (6th Cir.), cert. denied, 493 U.S. 944
(1989); United States v. Page, 661 F.2d 1080, 1081–1082 (5th Cir.
1981), cert. denied, 455 U.S. 1018 (1982); see also 16A Charles
Alan Wright et al., Federal Practice and Procedure § 3956.4, at
765-766 (2019) (explaining that a litigant may “use Rule 10(e) -and/or Rule 10(c) if necessary -- to repair the key gaps” in the
record).
The availability of Rule 10(e) when Rule 10(c) is
otherwise inapplicable, or unproductive, limits the significance
of the court of appeals’ determination that one specific in-chamber
discussion here did not qualify as a hearing or trial for purposes
of Rule 10(c).
2.
Petitioners also contend (21-5991 Pet. 25-34; 21-5995
Pet. 25-31) that the evidence about violence by other federal
inmates, introduced in rebuttal to petitioners’ own evidence that
incarceration prevents violence, required reversal of their death
sentences.
That contention lacks merit, and the court of appeals’
decision rejecting it does not conflict with any decision of this
Court or another court of appeals.
a.
to
Neither petitioner disputes that the jury was entitled
consider
recommend
his
future
dangerousness
in
deciding
that
the
a
sentence
of
death,
and
accordingly
entitled
to
present
evidence
on
whether
to
government
was
that
topic.
In
addition to listing certain specific aggravating factors that the
23
sentencing jury “shall consider,” the Federal Death Penalty Act
provides that the sentencing jury “may consider whether any other
aggravating factor for which notice has been given exists,” and
authorizes “information [to] be presented as to any matter relevant
to the sentence, including any mitigating or aggravating factor
permitted or required to be considered under section 3592.”
U.S.C. 3593(c).
18
And “federal courts ‘have uniformly upheld future
dangerousness as a non-statutory aggravating factor in capital
cases.’”
United States v. Wilson, 923 F. Supp. 2d 481, 485
(E.D.N.Y. 2013) (quoting United States v. Basciano, 763 F. Supp.
2d 303, 352 (E.D.N.Y. 2011), aff’d, 634 Fed. Appx. 832 (2d Cir.
2015), cert. denied, 136 S. Ct. 2529 (2016)); see Simmons v. South
Carolina, 512 U.S. 154, 165 n.5 (1994) (“The State 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.”).
Here, the government proved petitioners’ future dangerousness
in
its
case-in-chief
petitioners
through
themselves.
evidence
See
C.A.
of
ROA
violent
8948-8953,
conduct
by
9273-9275
(government’s opening statements); see also, e.g., id. at 1024910250 (evidence that petitioner Cramer stabbed and attempted to
kill another federal inmate in February 2008); id. at 9354-9359
(evidence that petitioner Fackrell attacked another federal inmate
with a blade in December 2007).
Petitioners then responded to
24
that
evidence
with
expert
opinion
testimony
suggesting
that
despite their past violence, neither petitioner would be a danger
to others in the future if he were confined at the maximum-security
federal prison in Florence, Colorado.
See id. at 10159-10229
(direct testimony by expert witness for petitioner Cramer); id. at
10773-10861 (direct testimony by expert witness for petitioner
Fackrell).
factors
Petitioners also independently alleged as mitigating
that
they
could
be
incarcerated at that prison.
housed
safely
or
reformed
if
See id. at 11453-11456, 11518-11523.
The government elicited evidence on cross-examination and
rebuttal that was directly responsive to petitioners’ evidence and
argument that they could be safely housed at a maximum-security
federal prison, and the district court appropriately admitted it.
The evidence regarding Ishmael Petty’s assault of prison employees
at
the
maximum-security
prison,
for
example,
contradicted
testimony by petitioner Cramer’s defense expert that inmates at
that prison had previously been unable to escape their cells.
C.A. ROA 10204-10205, 10232-10236.
See
Indeed, when presented with
the evidence about Petty, the defense expert acknowledged that his
testimony on direct examination had been mistaken.
10235-10236.
questioned
And
counsel
Fackrell’s
defense
for
petitioner
expert
about
See id. at
Fackrell
violence
himself
by
other
inmates at the maximum-security prison (Ishmael Petty and Tommy
Silverstein), rendering those topics plainly relevant on cross-
25
examination or rebuttal.
See id. at 10823-10836, 10839-10840.
Neither the broad standard for the admission of evidence at federal
capital sentencing hearings, see 18 U.S.C. 3593(c), nor the Eighth
Amendment deprived the district court of its discretion to permit
such
cross-examination
and
rebuttal,
rather
than
allow
the
contestable testimony submitted by petitioners to go unchecked.
b.
Petitioners err in asserting (21-5991 Pet. 25-34; 21-
5995 Pet. 25-31) that the decision below is inconsistent with
United States v. Caro, 597 F.3d 608, 625 (4th Cir. 2010), cert.
denied, 565 U.S. 1110 (2012), and Tucker v. Kemp, 762 F.2d 1496,
1508 (11th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022
(1986).
The cited portions of those decisions involved claims of
improper closing arguments at capital sentencing hearings; neither
one of them concerned the admissibility of evidence under the
Federal Death Penalty Act.
See Caro, 597 F.3d at 624-627; Tucker,
762
Indeed,
F.2d
at
1505-1508.
Tucker
involved
statutory limitation on “arguments about parole.”
1508.
a
state-law
762 F.2d at
And Caro, to the extent it is relevant, supports the court
of appeals’ decision in this case.
There, the Fourth Circuit
determined that the defendant had “opened the door” to “comments
about whether the BOP would adequately secure [the defendant] to
prevent future dangerousness.”
Caro, 597 F.3d at 626.
The
defendant’s expert “acknowledged that [the defendant] remained
dangerous, but testified that [the defendant] would not endanger
26
anyone because the BOP would incapacitate him at Florence ADMAX,”
which “plainly invited the government to respond that, actually,
the BOP would not secure [the defendant] adequately to prevent
future violence.”
Ibid.
The government was similarly entitled to
respond to petitioners’ evidence in this case that they could be
safely housed at the maximum-security prison in Florence.
Petitioners also contend (21-5991 Pet. 33-34; 21-5995 Pet.
12-13, 25-27) that this case is comparable to Calvert v. Texas,
141 S. Ct. 1605 (2021). Unlike in Calvert, however, the challenged
evidence in this case did not pertain to violence by prisoners
generally,
but
instead
responded
to
specific
testimony
from
defense experts about the security procedures at a particular
prison; the ability of those procedures to prevent violence by
inmates; and the defense experts’ opinions that those procedures
would prevent violence by petitioners -- both of whom had committed
multiple violent acts in prison -- if they were housed at that
particular prison.
See pp. 23-25, supra.
Moreover, this Court
denied a writ of certiorari in Calvert, and petitioners identify
no sound reason to follow a different course here.
See Calvert,
141 S. Ct. at 1606 (Sotomayor, J., respecting the denial of
certiorari) (agreeing that Calvert’s “claim does not meet the
Court’s traditional criteria for granting certiorari”).
3.
Finally, petitioners contend (21-5991 Pet. 40; 21-5995
Pet. 31-37) that they are entitled to vacatur of their death
27
sentences because the district court responded to a juror note in
writing rather than orally in open court.
Petitioner Fackrell
also contends (21-5991 Pet. 35-40) that the court was required to
provide a supplemental instruction to the jury in response to the
note explaining the consequences of a non-unanimous jury.
Neither
contention warrants this Court’s review.
a.
Rule 43(a)(2) of the Federal Rules of Criminal Procedure
provides that “the defendant must be present at
* * *
every trial
stage, including jury impanelment and the return of the verdict.”
Fed. R. Crim. P. 43(a)(2).
In Rogers v. United States, 422 U.S.
35 (1975), the district court responded to a jury inquiry in
writing without notifying the defendant or his counsel, and this
Court concluded “that the jury’s message should have been answered
in open court and that [defendant’s] counsel should have been given
an opportunity to be heard before the trial judge responded.”
at 39.
Id.
The Court made clear, however, that “a violation of Rule
43 may in some circumstances be harmless error.”
Id. at 40.
Since Rogers, the courts of appeals have generally recognized
that the substantive requirements of Rule 43 are satisfied if the
district court, in the defendant’s presence, discloses a juror
inquiry to counsel and gives counsel an opportunity to be heard
before the court responds to the inquiry, either orally or in
writing.
See United States v. Smith, 31 F.3d 469, 471 & n.2 (7th
Cir. 1994); see also United States v. Parr, 716 F.2d 796, 810 n.15
28
(11th Cir. 1983) (concluding that it is preferrable to provide
supplemental instructions orally, but that it was within the
district court’s discretion to submit them to the jury in writing);
United States v. Solomon, 565 F.2d 364, 366 (5th Cir. 1978) (per
curiam) (same); United States v. Basciano, 634 Fed. Appx. 832,
839-840 & n.5 (2d Cir. 2015) (finding no violation of Rule 43(a)(2)
where the “the district court disclosed the content of the jury
note
to
[defendant’s]
counsel,
elicited
counsel’s
views,
and
indicated that its response would be communicated in writing -all in the presence of” the defendant), cert. denied, 136 S. Ct.
2529
(2016).
Courts
have
additionally
observed
that
“it
is
commonplace for district court judges to send written answers to
jury questions, after proper consultation with counsel in the
presence of the defendant, rather than wasting 20 minutes of the
time of nearly 20 people for a stately courtroom delivery.” United
States v. Grant, 52 F.3d 448, 449-450 (2d Cir. 1995) (footnote
omitted); see Smith, 31 F.3d at 471 (“Judges routinely tell jurors
(as was done in this case) that the court’s response to jury
inquiries will be given ‘either in writing or orally in open
court.’”); see also United States v. Vega, 398 F.3d 149, 151 (1st
Cir.) (case in which the district court “responded to the jury in
writing”), cert. denied, 546 U.S. 864 (2005); United States v.
Melhuish, 6 F.4th 380, 390 (2d Cir. 2021) (same).
29
The Fourth and Sixth Circuits have indicated in unpublished
decisions that a district court may violate Rule 43 by providing
a supplemental instruction to the jury in writing in response to
a juror inquiry.
See United States v. Yu, 411 Fed. Appx. 559,
567–568 (4th Cir. 2010); United States v. Stapleton, 297 Fed. Appx.
413, 429–430 (6th Cir. 2008).
But those courts went on to find
that the error is “technical” and harmless where the district court
had disclosed the juror inquiry to counsel in the defendant’s
presence and allowed counsel to be heard before responding to the
inquiry.
Yu, 411 Fed. Appx. at 567–568 (finding any Rule 43 error
harmless because “[n]either [the defendant] nor his attorney were
excluded from any part of the district court’s consideration of
the jury’s question or the preparation of the court’s reply”);
Stapleton, 297 Fed. Appx. at 429–430 (finding a “technical,” nonprejudicial, violation where “the defendant and all counsel were
present in the courtroom after the jury's note was received by the
court,” “the court heard arguments from counsel in the presence of
the defendant concerning what response should be given,” and
“[c]ounsel were informed of the contents of the judge’s note before
it
was
given
to
the
jury
and
had
the
opportunity
to
raise
objections”). 4
Cramer cites (21-5995 Pet. 33-34) cases in which courts
reversed convictions because the district court provided a
supplemental jury instruction without the defendant’s presence,
but in those cases, the court brought the jury back into the
courtroom yet delivered the instruction while the defendant
4
30
This Court’s review is accordingly not warranted to determine
whether a district court’s use of a written response to a jury
inquiry
--
after
disclosing
the
inquiry
to
counsel
in
the
defendant’s presence and permitting counsel to be heard regarding
the court’s response -- is permitted by Rule 43 or instead a
technical-but-harmless violation.
In any event, this case would
be a poor vehicle to address any shallow distinction between courts
of appeals because petitioners invited the very error of which
they now complain.
See United States v. Wells, 519 U.S. 482, 487-
488 (1997) (describing as “valuable” the “‘invited error’ doctrine
‘that a party may not complain on appeal of errors that he himself
invited or provoked the [district] court
. . .
to commit’”)
(citation omitted; brackets in original).
Petitioners proposed
that the district court instruct the jury, during the sentencing
phase of the case, that “[i]f you need to communicate with me
during your deliberations the foreperson should write the message
and give it to the courtroom security officer.
I will either reply
in writing or bring you back into the courtroom to respond to your
inquiry.”
D. Ct. Doc. 309, at 21 (emphasis added).
instructed the jury accordingly.
The court
See C.A. ROA 11460, 11527-11528.
himself was absent, with the jurors able to observe as much and
the defendant unable to monitor the proceeding or any unforeseen
expansion of it. See, e.g., United States v. Fontanez, 878 F.2d
33, 37 (2d Cir. 1989).
Those cases do not address whether a
district court may submit a written supplemental instruction in
response to a jury inquiry after disclosing the inquiry to counsel
in the defendant’s presence and permitting counsel to be heard.
31
And petitioners raised no objection when the court, consistent
with petitioners’ proposed instruction, determined to respond to
the jury in writing after consulting with their counsel about the
response.
See Pet. App. 52a-54a.
Even
if
petitioners
had
not
affirmatively
invited
the
putative error, their failure to raise an objection in the district
court
means
they
could
obtain
relief
requirements of plain-error review.
only
by
satisfying
the
See Fed. R. Crim. P. 52(b);
Greer v. United States, 141 S. Ct. 2090, 2096 (2021).
Thus,
petitioners must, at a minimum, demonstrate (1) error; (2) that is
plain, which means it is clear or obvious rather than subject to
reasonable dispute; (3) that affected substantial rights, which
ordinarily means it affected the outcome of the proceedings; and
(4) that seriously affected the fairness, integrity, or public
reputation of judicial proceedings.
United States v. Olano, 507
U.S. 725, 732-736 (1993); see, e.g., Puckett v. United States, 556
U.S. 129, 135 (2009).
Petitioners cannot make that showing here.
As already discussed, the court’s use of a written response to the
jury inquiry after consulting with defense counsel in petitioners’
presence is a “commonplace” practice approved of by multiple courts
of appeals, Grant, 52 F.3d at 449, and petitioners cannot show
that it affected their substantial rights here or that allowing
their sentences to stand notwithstanding the court’s employment of
such
a
commonplace
procedure,
which
their
own
proposed
32
instructions
embraced,
would
seriously
affect
the
fairness,
integrity, or public reputation of judicial proceedings.
b.
This Court’s decision in Jones v. United States, 527
U.S. 373 (1999), forecloses Fackrell’s contention (21-5991 Pet.
35-40) that the district court was required to respond to the
jury’s
inquiry
by
explaining
that
the
court
would
sentence
petitioners to life in prison without the possibility of release
if the jury was unable to reach a unanimous verdict.
Jones held
that a jury instruction as to the effect of jury deadlock at the
penalty phase in federal capital cases is not constitutionally
required because it has no bearing on the jury’s role in the
sentencing process, and may actually undermine the strong interest
in having the jury express the conscience of the community on the
ultimate question of life or death.
Jones, 527 U.S. at 381-382.
Fackrell’s efforts to distinguish Jones are unsound.
His
principal contention (21-5991 Pet. 35-36) is that this case differs
from Jones because the jury here asked about the effect of a
failure to agree, whereas in Jones the petitioner wanted the jury
to be instructed preemptively on the consequences of an inability
to
agree
in
a
capital
sentencing
proceeding.
But
those
circumstances are not functionally different; in both, the end
result would be an instruction to the jury about the legal effect
of its failure to agree, with the same unrequired and potentially
deleterious effect identified in Jones.
33
To the extent that Fackrell suggests (21-5991 Pet. 38) that
the district court’s response stating “[p]lease continue your
deliberations,” Pet. App. 31a (brackets in original), was an
incorrect or misleading supplemental instruction, he is incorrect.
As the Court observed in Jones, this Court has “long been of the
view that ‘[t]he very object of the jury system is to secure
unanimity by a comparison of views, and by arguments among the
jurors themselves.’”
527 U.S. at 382 (quoting Allen v. United
States, 164 U.S. 492, 501 (1896)) (brackets in original).
In
contexts in which a jury has “report[ed] itself as deadlocked,”
the Court has accordingly “approved of the use of a supplemental
charge to encourage [the] jury
* * *
to engage in further
deliberations, even capital sentencing juries.”
Id. at 382 n.5
(citing Allen, 164 U.S. at 501; Lowenfield v. Phelps, 484 U.S.
231, 237-241 (1988)).
a
supplemental
In Allen, for instance, the Court approved
charge
that
urged
the
minority
members
of
a
deadlocked capital jury to consider the views of the majority and
“ask
themselves
whether
they
might
not
reasonably
doubt
the
correctness of a judgment which was not concurred in by the
majority.”
164 U.S. at 501.
jurors
“capital
in
And this Court’s determination that
sentencing
proceeding[s]”
must
carefully
consider the contrary views of others in light of the jury system’s
object of “‘secur[ing] unanimity by a comparison of views’” applies
“with even greater force” where “the charge given” -- in contrast
34
to a traditional Allen charge -- “does not speak specifically to
the minority jurors.”
Lowenfield, 484 U.S. at 237-238 (citation
omitted).
In light of those principles, the question whether a trial
court has “improperly coerced” jurors by giving a supplemental
charge regarding ongoing deliberations is evaluated in “‘context
and under all the circumstances.’”
(citation omitted).
Lowenfield, 484 U.S. at 237
As a threshold matter, it is far from clear
that the response here was a true supplemental instruction on the
preferability of jury unanimity, rather than simply a way of
telling the jury that it should not await a substantive response
to its question.
In any event, “even in capital cases,” this Court
has made clear that a trial court “incontestably” has “authority
to insist that [a jury] deliberate further” if the jury, after
deliberating for only a short period, informs the court of its
failure to reach unanimity.
Id. at 238.
district
here
court’s
response
did
Thus, at a minimum, the
not
exceed
permissible
boundaries.
After the lengthy penalty-phase proceedings in this case, the
jury deliberated on the sentences for two defendants for less than
one full day before the jury submitted the note asking about the
process if the jury was not unanimous with its verdict.
App. 52a-54a.
See Pet.
The jury did not disclose whether it had yet voted
on petitioners’ sentences, and as the district court noted, the
35
jury did not “say[] they are hopelessly deadlocked” or “anything
like that.”
Id. at 52a.
In those circumstances, the district
court permissibly responded that the jury should continue its
deliberations.
The
court’s
response
did
not
tell
jurors
to
reconsider their positions or suggest that they must be unanimous
in the end.
As the court explained to counsel, if at some point
the jurors indicated they were “hopelessly deadlocked,” the court
was prepared to “deal with” that situation “when that comes about.”
Id. at 54a.
The court’s response simply -- and appropriately in
that context -- reflected the court’s determination that it was
reasonable under the circumstances to inform the jury that it
should continue its deliberations.
See id. at 52a (“I want them
to continue their deliberations in hopes of reaching a unanimous
verdict.”).
CONCLUSION
The petitions for writs of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
KENNETH A. POLITE, JR.
Assistant Attorney General
JOHN M. PELLETTIERI
Attorney
FEBRUARY 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.