United States v. Fackrell

Citation: 368 F. Supp. 3d 1010Docket: CASE NO. 1:16-CR-26(2)

Court: District Court, E.D. Texas; January 22, 2018; Federal District Court

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Defendant Ricky Allen Fackrell filed a motion to strike several aggravating factors from the Government's intent to seek the death penalty, asserting these factors are unconstitutional. Fackrell specifically challenges the following statutory aggravators: 1) heinous, cruel, or depraved manner of committing the offense (18 U.S.C. 3592(c)(6)); 2) substantial planning and premeditation (id. 3592(c)(9)); 3) vulnerability of the victim (id. 3592(c)(11)); and 4) lack of remorse and membership in a racist gang as sub-factors of future dangerousness. The court reviewed the motion, the Government's response, and relevant legal standards, concluding that Fackrell's motion should be partially granted and partially denied.

In background, Fackrell and a co-defendant were indicted for the murder of inmate Leo Johns and conspiracy related to the crime, with the death penalty as a potential sentence for the murder charge. The voir dire is scheduled for March 5, 2018, and the trial for April 9, 2018.

In the analysis, the court addresses Fackrell's argument against the constitutionality of the "heinous, cruel, or depraved manner" factor, asserting it is vague and overbroad. The court, referencing Fifth Circuit precedent, finds Fackrell's claim unpersuasive, noting that the factor is designed to narrow the class of death penalty-eligible murderers and is sufficiently specific. Additionally, the court clarifies that serious physical abuse requires more than just causing death; it must involve inflicting additional suffering or violence beyond what is necessary to kill. Citing binding case law, the court concludes that Fackrell's argument is without merit.

In United States v. Snarr, the Fifth Circuit held that a rational juror could determine that defendants inflicted serious physical abuse, qualifying their actions as "serious physical abuse" under the law, particularly in cases of extreme violence such as stabbing a victim fifty times. Fackrell challenges the constitutionality of the statutory aggravating factor of "substantial planning and premeditation" (18 U.S.C. § 3592(c)(9)), arguing it is overbroad and vague, claiming all murders involve some level of planning, and asserting that the term "substantial" lacks a clear definition. The court counters Fackrell's arguments, citing the Fifth Circuit's consistent rejection of similar claims, affirming that the term "substantial" conveys a clear meaning allowing juries to make objective assessments. The court also dismisses concerns regarding juror misinterpretation, stating that jurors will receive proper instructions on evaluating evidence. Additionally, Fackrell contests the characterization of the victim's vulnerability under 18 U.S.C. § 3592(c)(11), arguing the circumstances do not sufficiently differentiate this case from other murders. The Government argues that the victim's confinement in a small cell rendered him particularly vulnerable.

The court finds that Johns does not qualify as a vulnerable victim under the statute, despite the Government's argument that his circumstances rendered him helpless. Section 3592(c)(11) limits the definition of vulnerability to factors such as "old age, youth, or infirmity," none of which apply to Johns's situation. The ordinary meanings of "infirmity," as defined in the American Heritage Dictionary, do not support the Government's claims regarding Johns’s confinement and Fackrell's actions. The court distinguishes this case from United States v. Lambright, emphasizing that the definition of a vulnerable victim in the U.S. Sentencing Guidelines is broader and does not apply here. The court asserts the need to adhere strictly to the statute's language and concludes that the Government's failure to demonstrate that Johns was "particularly vulnerable" requires the removal of this aggravating factor from consideration.

Fackrell also contests two aspects of the future dangerousness aggravating factor: the allegations of lack of remorse and membership in a racist prison gang. He argues that the lack of remorse claim infringes on his Fifth Amendment rights by undermining his presumption of innocence and right to silence. Additionally, he contends that the claim regarding his association with the Soldiers of Aryan Culture violates his First Amendment rights to free association.

Lack of remorse in a defendant is considered relevant evidence of future dangerousness, as established in various federal cases. Courts have upheld the use of a defendant's lack of remorse, including expressions of exultation, as non-statutory aggravating circumstances in death penalty cases. There is no constitutional prohibition against including lack of remorse as a factor favoring the death penalty, although the Fifth Amendment may limit evidence to affirmative conduct or statements rather than silence. Circuit courts are divided on whether silence can be interpreted as a lack of remorse during sentencing. In this case, the Government asserts that Fackrell's lack of remorse will be supported by his affirmative statements and actions, and thus the court will not exclude this evidence.

Regarding membership in a racist gang, the First Amendment does not create an automatic barrier to admitting evidence of beliefs and associations during sentencing. The Supreme Court has affirmed the relevance of such evidence in both capital and non-capital cases, allowing for the consideration of racial intolerance and subversive advocacy as pertinent to sentencing decisions. Additionally, evidence can be used to impeach witnesses by demonstrating affiliations with groups like the Aryan Brotherhood.

In *Barclay v. Florida*, the Supreme Court allowed sentencing judges in capital cases to consider elements of racial hatred and intent to incite racial violence. However, in *Dawson v. Delaware*, the Court ruled that evidence of a defendant's gang membership could not be used at sentencing if it was not accompanied by proof that the gang engaged in or endorsed violent acts, as this would violate the defendant's First Amendment rights. The *Dawson* ruling allowed for the consideration of gang membership when it is relevant to establishing future dangerousness. In *Fuller v. Johnson*, the Fifth Circuit upheld the admission of evidence regarding a defendant's membership in a violent gang because the prosecution proved that the gang was involved in criminal activities, establishing relevance to future dangerousness. The court noted that the defendant's First Amendment rights were not violated since the evidence was pertinent to the trial. 

In the current case, the Government intends to present evidence of the violent nature of the SAC gang and Fackrell's involvement in the murder of a fellow gang member, which aligns with the precedents set in *Dawson* and *Fuller*. This evidence is relevant to both the death of Johns and Fackrell's potential future dangerousness. Although First Amendment protections limit the admissibility of certain evidence regarding Fackrell's gang membership, they do not necessitate the exclusion of this evidence. Consequently, Fackrell's motion to strike unconstitutional aggravating factors is partially granted and partially denied, acknowledging the Government's claim that Fackrell was involved in a violent crime.