                       REVISED January 29, 2013

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                       United States Court of Appeals
                                                                Fifth Circuit

                                                            FILED
                                No. 10-40525             January 8, 2013

                                                          Lyle W. Cayce
                                                               Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee
v.

MARK ISAAC SNARR; EDGAR BALTAZAR GARCIA,

                                          Defendants-Appellants



               Appeals from the United States District Court
                     for the Eastern District of Texas


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
KING, Circuit Judge:
     Following their joint trial, a jury found Defendants-Appellants Mark Snarr
and Edgar Garcia guilty of murdering Gabriel Rhone, a fellow inmate at the
United States Penitentiary in Beaumont, Texas. After the jury unanimously
recommended capital punishment for each defendant, the district court
sentenced them to death. Defendants appeal their convictions and sentences.
For the reasons that follow, we AFFIRM.




          I. FACTUAL AND PROCEDURAL BACKGROUND
                                  No. 10-40525

      On January 21, 2009, a federal grand jury returned a one-count
indictment against Mark Snarr and Edgar Garcia (“Defendants”), charging them
with murdering Gabriel Rhone in violation of 18 U.S.C. §§ 1111 and 2. The
indictment provided notice of special findings for both Snarr and Garcia, and on
February 9, 2009, the government filed notice of its intent to seek the death
penalty against both defendants.
      The evidence adduced at trial showed that, on November 28, 2007, Rhone,
Snarr, and Garcia were incarcerated at the federal penitentiary in Beaumont,
Texas. That day, as prison guards escorted Snarr and Garcia from outdoor
recreation areas to their respective cells, Defendants escaped from their
handcuffs and produced handmade weapons known as “shanks.” Unaware that
Garcia had a shank, and believing that Snarr was preparing to attack Garcia,
correctional officer Dewight Baloney positioned himself between the two men,
with his back toward Garcia. Garcia then stabbed Baloney in the back, as Snarr
attacked him from the front. Defendants continued assaulting Baloney as he
struggled to reach a secure location, ultimately stabbing him twenty-three times
in approximately fifteen seconds. After Baloney escaped, Defendants turned
their attention to correctional officer Josh McQueen. Snarr stabbed McQueen
while demanding from him keys to the inmates’ cells. When McQueen refused
to surrender his keys, Garcia stabbed him, at which point Snarr was able to rip
McQueen’s keys from his duty belt.
      Defendants then ran down a corridor to Rhone’s cell. Snarr attempted for
almost a full minute to unlock the cell door, while Garcia—who, according to one
witness, appeared “to be taunting the inmates” in the cell with his shank—yelled
either “I’m going to kill you,” or “We going to kill you.” When Defendants finally
opened the door, Rhone fled from his cell and Defendants began stabbing him.
One witness to the events testified that, in the midst of the attack, Defendants
“were in a frenzy . . . repeatedly stabbing [Rhone] over and over.” Despite


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officers’ commands that they stop, Defendants continued their assault on Rhone
until they saw that officers were preparing to use riot control equipment to clear
the area. As Defendants retreated, one of them yelled, “That’s how you get your
enemy,” and Snarr exclaimed, “Dude disrespected us, and that’s what he got.”
       Only then were officers able to attend to Rhone, who by that time already
appeared to be dead. Prison officials attempted to resuscitate him, but shortly
after the attack, Rhone was pronounced dead at a Beaumont hospital. An
autopsy revealed that he had sustained fifty stab wounds: eighteen to the front
of his body, and thirty-two to the back. The cause of Rhone’s death was listed
as “multiple stab wounds of the heart, lung, and liver,” with the injury to his
heart being the fatal wound.
       On May 7, 2010, jurors deliberated for just over one hour before returning
guilty verdicts against both Snarr and Garcia for Rhone’s murder. During the
eligibility phase of the trial, the government submitted several statutory
aggravating factors to establish Defendants’ eligibility for the death penalty.1
These included, for both defendants, that the offense had been committed: (1) “in
an especially heinous, cruel, or depraved manner in that it involved torture or
serious physical abuse to the victim,” and (2) “after substantial planning and
premeditation to cause the death of a person.” 18 U.S.C. § 3592(c)(6), (9). To
substantiate these factors, the government introduced a number of exhibits and
presented several witnesses over a two-day period.


       1
          The Federal Death Penalty Act provides a separate post-conviction sentencing
proceeding for those convicted of homicide. 18 U.S.C. § 3593(b). In the proceeding’s first stage,
known as the “eligibility” phase, “a jury must unanimously find beyond a reasonable doubt
that: (1) the victim’s death resulted from the defendant’s intentional engagement in
life-threatening activity; and (2) one or more of the aggravating factors proposed by the
Government is present.” United States v. Davis, 609 F.3d 663, 673 (5th Cir. 2010). “If the
jury returns both findings, the proceeding moves to the second or ‘selection’ phase. Here, the
jury decides whether the aggravating factors sufficiently outweigh statutory or non-statutory
mitigating factors to warrant a death sentence or, absent mitigating factors, whether the
aggravators alone warrant that sentence.” Id. (internal citation omitted).

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      On May 12, 2010, the jury unanimously concluded that Defendants were
eligible for the death penalty. That same day, the district court began the
selection phase of Defendants’ trial. In support of its position that Defendants’
crime warranted the death penalty, the government alleged the existence of
multiple non-statutory aggravating factors, including, as relevant here, that
each defendant “poses a continuing and serious threat to the lives and safety of
others because it is likely that he will commit criminal acts of violence in the
future.” On May 21, 2010, the jury unanimously selected the death penalty for
both Snarr and Garcia. The district court subsequently sentenced Defendants
to death in accordance with the jury’s recommendation. Defendants now appeal
their convictions and sentences.
                                II. ANALYSIS
      On appeal, Defendants raise a host of challenges, which broadly may be
characterized as follows: (1) given numerous errors committed during the jury
selection process, Defendants were denied their constitutional rights to an
impartial jury, due process, and equal protection; (2) the district court
improperly denied Defendants’ request for a lesser-included-offense instruction;
(3) the government presented insufficient evidence to support the jury’s
conclusion regarding the applicability of three aggravating factors; (4) the
district court abused its discretion in denying Defendants’ motion for severance;
(5) the Federal Death Penalty Act (“FDPA”) is unconstitutional; (6) the district
court improperly excluded character evidence related to the victim; (7) the
district court abused its discretion in excluding Garcia’s “execution impact”
evidence; and (8) this court’s chief judge denied Defendants due process by
overruling the district court and issuing an order partially reducing and
partially denying funds Garcia requested for the retention of certain
investigators and experts. We consider each of these claims in turn.
A. Jury Selection Challenges


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                                      No. 10-40525

       Defendants assign three errors to the district court in connection with the
jury selection process.      First, Defendants argue that the court improperly
excluded for cause five prospective jurors who expressed reservations about
imposing the death penalty. Second, Defendants contend that the court erred
in dismissing a venire person who indicated that he had a physical infirmity that
would impair his ability to render effective jury service.2 Finally, Defendants
submit that the court improperly denied their for cause challenges to three
prospective jurors.
       (1) Prospective Jurors Dismissed for Death Penalty Objections
              (a) Standard of Review
       A district court’s dismissal of a prospective juror for cause because of his
or her views on capital punishment is reviewed for abuse of discretion. United
States v. Bernard, 299 F.3d 467, 474 (5th Cir. 2002). “Deference to the trial
court is appropriate because it is in a position to assess the demeanor of the
venire, and of the individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.” Uttecht v. Brown,
551 U.S. 1, 9 (2007). We thus give “considerable deference” to a district court’s
decision to dismiss a juror based on his or her opposition to the death penalty.
United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007).
              (b) Applicable Law
       In Witherspoon v. Illinois, the Supreme Court held that a capital
defendant’s right to trial by an impartial jury is violated when a court
universally excuses for cause all members of the venire who express
conscientious objections to the death penalty. 391 U.S. 510, 521–22 (1968).
Nevertheless, “[a] court may excuse a prospective juror for cause because of his


       2
        Defendants actually maintain that two prospective jurors were dismissed based on
their physical infirmities. As explained in further detail below, however, the court clearly
dismissed one of these jurors for his views in connection with the death penalty.

                                             5
                                  No. 10-40525

views on capital punishment if those views would prevent or substantially
impair the performance of his duties as a juror in accordance with the
instructions and oath.” United States v. Webster, 162 F.3d 308, 340 (5th Cir.
1998) (citing Wainwright v. Witt, 469 U.S. 412, 424 (1985)). A prospective juror,
therefore, properly is dismissed if, regardless of the facts and circumstances of
a case, he indicates that he personally could not impose the death penalty. See
Fields, 483 F.3d at 357. Additionally, because “many veniremen simply cannot
be asked enough questions to reach the point where their bias has been made
‘unmistakably clear,’” dismissal for cause is also appropriate if the court “is left
with the definite impression that a prospective juror would be unable to
faithfully and impartially apply the law.” Wainwright, 469 U.S. at 425–26.
Accordingly, this court repeatedly has deemed proper a lower court’s dismissal
for cause of a prospective juror who has wavered or given conflicting or
ambiguous signals as to whether he or she could sentence a defendant to death.
See, e.g., United States v. Jackson, 549 F.3d 963, 973 (5th Cir. 2008); Ortiz v.
Quarterman, 504 F.3d 492, 502–03 (5th Cir. 2007); Bernard, 299 F.3d at 474–75;
Webster, 162 F.3d at 340–41.
            (c) Discussion
      Here, each member of the venire submitted answers to a written
questionnaire, after which he or she was questioned by both government and
defense counsel. Defendants argue that the district court abused its discretion
in dismissing for cause five prospective jurors who expressed reservations during
this process about their ability to impose capital punishment. As discussed
below, we disagree.
      The first venire person whose dismissal Defendants contest is prospective
juror number three (“Lacy”). Although Defendants acknowledge that Lacy
expressed conscientious scruples against the death penalty, they argue that
when questioned by defense counsel, Lacy indicated that she would follow the

                                         6
                                 No. 10-40525

law and would answer questions truthfully, even if that resulted in a death
sentence. Defendants also emphasize that Lacy indicated that she would “follow
the evidence” and was “not going to disregard it.”
      Even so, Lacy answered in the affirmative when asked whether her
“personal feelings against the death penalty would always prevent [her] from
voting for the death penalty.” Further, when asked if she thought her “feelings
against the death penalty would substantially impair [her] or prevent [her] from
ever voting for it regardless of what the evidence and the law instructed,” she
replied that they would. The court observed Lacy’s demeanor and heard her
testimony. That testimony revealed Lacy’s consistent opposition to the death
penalty and her view that, because of that opposition, she was unable to affirm
that she could faithfully follow her oath as a juror. Accordingly, the district
court did not abuse its discretion in excusing her. See Jackson, 549 F.3d at 973.
      Next, Defendants submit that the court erred in dismissing prospective
juror number sixty-six (“Stephenson”). In particular, Defendants contend that
the sum of Stephenson’s testimony was that “she did not know how she felt”
about the death penalty and that she “never said she could not impose it.”
Defendants argue that Stephenson even stated that she could vote in favor of
capital punishment “if the Holy Spirit was guiding her” to do so.
      In excusing her, however, the court emphasized that throughout her
questionnaire, Stephenson had indicated that she was opposed to the death
penalty, that she could not impose it, and that she “thought it was God’s job to
put persons to death.” The court correctly explained that Stephenson never
affirmed that she would be able to return a verdict of death if the facts and
circumstances warranted it under the law. In light of Stephenson’s ambiguous
responses during voir dire, and her “strange” demeanor, the district court was
unable to ascertain whether—notwithstanding her opposition to the death
penalty—she would be able “to faithfully and impartially apply the law.”


                                       7
                                       No. 10-40525

Wainwright, 469 U.S. at 426. As such, the court did not abuse its discretion in
excusing her.
         Defendants also allege that potential juror number 130 (“Kimball”) should
not have been dismissed.3 Kimball previously had served on a jury that imposed
the death penalty, which Defendants suggest supports their conclusion that
Kimball could have fulfilled his duties impartially as a juror in this case.
Defendants also note that Kimball indicated that he generally favored the death
penalty, and he affirmed that he “would base a decision to impose it on the facts
and the law in the case.”
         Nevertheless, on his questionnaire, Kimball expressed in response to three
separate questions that he did not think he could impose the death penalty a
second time. During individual voir dire, Kimball testified that he might not be
able to vote for the death penalty even if it was called for “under the law and the
facts.” He stated that imposing capital punishment in the first case for which
he had served as a juror had bothered him “an awful lot,” and had caused him
to experience nightmares wherein he would “see the defendant’s face.” When
asked if he thought his “personal feelings would substantially impair [his] ability
to go ahead and vote for the death penalty,” Kimball replied, “I’m not really
sure.”       Even under questioning by defense counsel, Kimball consistently
indicated that he did not know whether he could impose the death penalty in a
second case. Because Kimball was consistent as to the fact that his personal
feelings about imposing the death penalty in this case prevented him from
attesting that he would faithfully and impartially apply the law, the district



         3
        Defendants suggest that Kimball was dismissed both because of his reservations about
imposing the death penalty, and because he had a medical condition that prevented him from
hearing the events that were transpiring in court. To be sure, the lower court did explore
Kimball’s hearing impairment and, at one point, stated that his disability would “substantially
impair[] his ability to serve as a juror.” Nevertheless, the district court was clear that it
ultimately dismissed Kimball “because of what he said about the death penalty.”

                                              8
                                        No. 10-40525

court did not abuse its discretion in dismissing Kimball for cause.4 See Bernard,
299 F.3d at 474–75.
       Defendants next maintain that the district court erred in excusing
prospective juror number 140 (“Furby”). Although Defendants acknowledge that
Furby expressed doubts about her ability to impose the death penalty, they
stress that she also indicated that she “would follow [her] oath and follow the
law.” Additionally, they note that Furby stated that she would not submit a
“false answer” on verdict forms simply to avoid voting for the death penalty.
Finally, Defendants emphasize that when asked whether she could follow her
oath and vote for the death penalty if she “heard enough bad evidence from the
government” to satisfy her that the death penalty was warranted, Furby stated
that “I guess if I was put in that situation, yes.”
       Notwithstanding this statement, however, Furby repeatedly indicated that
she did not know whether she could vote for the death penalty.                    Indeed, she
stated that the “scariness” of capital punishment would impair her ability to vote
“for the death penalty even if [she] felt like the facts justified that verdict.”
When eventually asked directly whether she was “going to follow [her] oath or
not” and impose the death penalty if it was warranted, she stated “I’m not going
to.” In light of Furby’s vacillations as to whether she personally could impose
capital punishment, and her explicit statement that her personal feelings would
prevent her from following her oath, the district court did not abuse its
discretion in granting the government’s motion to strike her for cause. See
Wainwright, 469 U.S. at 425–26.
       Finally, Defendants assert that the district court erred in dismissing for
cause prospective juror number two-hundred (“Blackmon”). During voir dire,

       4
        In addition to his inability to affirm that he could adhere to his oath, Kimball also had
conducted outside research about the case. The court noted that, in light of this outside
investigation, it would be “inappropriate” to have Kimball serve. We agree. See Marshall v.
United States, 360 U.S. 310 (1959).

                                               9
                                   No. 10-40525

Blackmon stated to defense counsel that she had a “religious problem” with
imposing capital punishment unless the case involved a child or an act of
domestic violence.    This generally was consistent with her questionnaire,
wherein Blackmon had noted that she was against capital punishment except
in cases involving “killing a child, abusing a child, child molestation, [or] killing
an elderly person.” Nevertheless, Defendants argue that Blackmon should not
have been dismissed because she testified that she was willing to keep an open
mind that there might be other cases that could warrant a death sentence.
Further, Defendants also emphasize that, when questioned by defense counsel,
Blackmon stated that she could vote for the death penalty if the government
established the appropriateness of such a sentence.
      Despite this testimony, however, Blackmon stated that although she had
“waffled” when answering defense counsel’s questions, she did not think she
“could live with [herself] if” she voted for the death penalty in this case. When
government counsel asked if he would “ever have a chance of getting a death
penalty verdict from” Blackmon in cases not involving victims she had listed on
her questionnaire, she replied “[p]robably not.” Finally, Blackmon stated that
she would not be able to follow her oath or the court’s instruction if it meant
imposing capital punishment in this case. Given Blackmon’s position that she
would not follow the oath to faithfully and impartially apply the law in this case,
the district court did not abuse its discretion in dismissing her. See Jackson, 549
F.3d at 973–74.
      (2) Prospective Juror Dismissed for a Physical Infirmity
      Defendants also raise a host of challenges to the district court’s dismissal
of a prospective juror who indicated during voir dire that he had a physical
infirmity that might have impeded his ability to render jury service. First,
Defendants claim that the court’s action in excusing this venire person was
contrary to the Jury Selection and Service Act. 28 U.S.C. § 1861, et seq. Second,

                                         10
                                 No. 10-40525

Defendants submit that the court violated the Americans with Disabilities Act
(“ADA”) by dismissing this juror. 42 U.S.C. § 12101, et seq. Finally, Defendants
contend that excusing this juror violated their constitutional rights to equal
protection and to have a venire drawn from a fair cross section of the community.
            (a) Standard of Review
      “Determinations as to the general qualifications of jurors are reviewed for
abuse of discretion.” United States v. Whitfield, 590 F.3d 325, 360 (5th Cir.
2009). As a question of law, the applicability of the ADA is reviewed de novo.
See Jackson, 549 F.3d at 969. Defendants’ constitutional claims were not raised
below and, as such, are reviewed only for plain error. See United States v.
Goldfaden, 959 F.2d 1324, 1327–28 (5th Cir. 1992). Plain error review “requires
considerable deference to the district court.” United States v. Peltier, 505 F.3d
389, 391 (5th Cir. 2007).
            (b) Prospective Juror Number 232
      On his questionnaire, prospective juror number 232 (“Horton”) indicated
that he took medications that caused him to use the restroom frequently. He
testified that although he wished to serve as a juror, his health kept him from
so doing. Horton first estimated that he needed to use the facilities roughly
every sixty to ninety minutes, though he later indicated that he had done so five
times during the two-and-a-half hour period he was at the courthouse. He
further stated that his inability to use the restroom when needed “would be a
distraction” and would impede his ability to concentrate on the proceedings.
After the court informed Horton that, during trial, “it could be as much as two
hours at a time without a break,” Horton was unable to assure the court that he
could wait that long without using the facilities. He later stated that while he
knew he might be required to sit for an hour or two and be “undisturbed about
that . . . that’s just not going to work for me.” The court finally asked Horton



                                       11
                                  No. 10-40525

directly if he was asking to be excused, to which Horton replied in the
affirmative. The court therefore dismissed him.
            (c) The Jury Selection and Service Act
      Defendants first imply that Horton’s dismissal violated the Jury Selection
and Service Act, which sets forth the qualifications for jury service in federal
courts. 28 U.S.C. § 1865. As relevant, a person is disqualified from service
under the Act’s provisions if he is unable “by reason of mental or physical
infirmity, to render satisfactory jury service.” Id. at § 1865(b)(4).
      “A court has broad discretion to determine whether to excuse a juror for
cause” pursuant to 28 U.S.C. § 1865(b)(4). United States v. Solomon, 273 F.3d
1108, 2001 WL 1131955, at *3 (5th Cir. 2001) (per curiam) (unpublished). In
Solomon, for example, we affirmed the dismissal for cause of a prospective juror
who suffered from an obsessive compulsive disorder. Id. When asked whether
his condition would interfere with his ability to focus on the proceedings, the
venire person in Solomon had responded that there was “no way to know,”
although he believed that he would be able to focus “[m]ost of the time.” Id. In
affirming the district court’s dismissal of the prospective juror, we stated that
“[t]he court properly exercised its discretion in concluding that the prospective
juror’s mental condition prevented him from rendering satisfactory service.” Id.
      Other courts agree as to the propriety of dismissing prospective jurors
whose infirmities would interfere with their jury service. In United States v.
Flores, for instance, the Eleventh Circuit affirmed the dismissal for cause of a
potential juror who suffered from attention deficit disorder (“ADD”). 572 F.3d
1254, 1261 (11th Cir. 2009). The defendants there had argued “that the district
court was required to inquire further into [the prospective juror’s] medical
condition to determine the severity of her ADD.” Id. The court disagreed,
explaining that because the trial was so lengthy, concerned multiple defendants,
and involved numerous witnesses and exhibits, and because “ADD could

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interfere with a juror’s ability to pay attention,” “the district court acted within
its sound discretion when it dismissed [the potential juror] for cause.” Id.; see
also United States v. Powell, 444 F. App’x 517, 519–20 (3d Cir. 2011)
(unpublished) (affirming a district court’s decision to grant a prospective juror’s
request to be excused based on the individual’s hearing impairment).
      Defendants do not address this authority or attempt to distinguish it from
their case. Instead, they appear to focus on 28 U.S.C. § 1865(b)(2), which states
that an individual is disqualified from jury service if he “is unable to read, write,
and understand the English language with a degree of proficiency sufficient to
fill out satisfactorily the juror qualification form.” Defendants argue that “[i]t
is apparent from [his] educational and work experience, as well as [his]
interview[], that [Horton] could read, write and understand the English
language with proficiency.”
      While this is true, Defendants’ argument neglects that in dismissing
Horton for cause, the district court acted not under subsection two of 28 U.S.C.
§ 1865(b), but rather under subsection four. Pursuant to subsection four, it is
proper for a court to dismiss prospective jurors based on their infirmities if those
infirmities render them unable to perform satisfactory service.            Id. at §
1865(b)(4). Here, as detailed, Horton indicated that his physical infirmity could
interfere with his ability to concentrate on the proceedings. This testimony was
especially troubling given that, as in Flores, the trial here was lengthy,
concerned multiple defendants, and involved numerous witnesses and exhibits.
Accordingly, the district court did not violate the Jury Selection and Service Act
or otherwise abuse its discretion in excusing Horton.
             (d) The ADA
      Defendants also maintain that the district court violated the ADA in
excusing Horton based on his physical infirmity. Under the ADA, “no qualified
individual with a disability shall, by reason of such disability, be excluded from

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participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. The ADA, however, applies only to “public entities,” which the
Act defines as “(A) any State or local government”; “(B) any department, agency,
special purpose district, or other instrumentality of a State or States or local
government”; and “(C) the National Railroad Passenger Corporation, and any
commuter authority.” Id. at § 12131(1).        As other courts have observed,
“[n]oticeably absent from this definition is any mention of any agency or
department of the federal government, other than the National Railroad
Passenger Corporation.” Isle Royale Boaters Ass’n v. Norton, 154 F. Supp. 2d
1098, 1135 (W.D. Mich. 2001) (holding that plaintiffs could not sue the National
Park Service, “a unit of the federal government, for discrimination under the
ADA”); see also Calero–Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
2004) (“[T]he ADA applies to private employers with over 15 employees and state
and local governments.”); Melton v. Freeland, Nos. 1:96CV516, 1:96CV517, 1997
WL 382054, at *1 (M.D.N.C. Feb. 6, 1997) (unpublished) (explaining that the
ADA does not apply to federal courts because they are not public entities under
the Act).
      Defendants point to no federal case in which the dismissal of a juror has
been successfully challenged under the ADA, nor have we discovered such a case.
We therefore reject Defendants’ claim that the district court violated the ADA
in dismissing Horton due to his physical infirmity.
            (e) Defendants’ Constitutional Challenges
      Defendants next claim that by dismissing Horton, the district court
abridged Defendants’ right to have a venire drawn from a fair cross section of the
community—as guaranteed by the Sixth Amendment—and violated the Equal
Protection Clause of the Fourteenth Amendment. As noted earlier, because
Defendants did not raise this claim below, they are entitled only to plain-error

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                                   No. 10-40525

review. Under plain-error review, a defendant “must establish: (1) an error; (2)
that is clear and obvious; and (3) that affected his substantial rights.” United
States v. Hernandez–Martinez, 485 F.3d 270, 273 (5th Cir. 2007). “If these
conditions are met, this court can exercise its discretion to notice the forfeited
error only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citation omitted).
                   (i) Applicable Law
      “The Sixth Amendment secures to criminal defendants the right to be tried
by an impartial jury drawn from sources reflecting a fair cross section of the
community.” Berghuis v. Smith, 130 S. Ct. 1382, 1388 (2010). To establish a
prima facie violation of this right, a defendant must demonstrate:
      (1) that the group alleged to be excluded is a “distinctive” group in
      the community; (2) that the representation of this group in venires
      from which juries are selected is not fair and reasonable in relation
      to the number of such persons in the community; and (3) that this
      underrepresentation is due to systematic exclusion of the group in
      the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979). Similarly, in Castaneda v. Partida,
the Supreme Court delineated the general contours of an equal protection
challenge to jury selection.     430 U.S. 482, 494 (1977).        There, the Court
explained:
      The first step is to establish that the group is one that is a
      recognizable, distinct class . . . . Next, the degree of
      underrepresentation must be proved, by comparing the proportion
      of the group in the total population to the proportion called to serve
      as . . . jurors, over a significant period of time. . . . Finally, . . . a
      selection procedure that is susceptible of abuse . . . supports the
      presumption of discrimination raised by the statistical showing.
Id. (internal citations omitted); see also McGinnis v. Johnson, 181 F.3d 686, 691
(5th Cir. 1999).    Thus, to prevail under either theory, a defendant must
demonstrate not only that the excluded persons are members of a distinctive


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class, but also that the class is disproportionally underrepresented due to
procedures in the jury selection process that work to exclude class members.
       Duren provides a roadmap as to how a petitioner might make such a
showing.5 There, the petitioner alleged a Sixth Amendment violation based on
the lack of females in his jury pool. Duren, 439 U.S. at 360. In explaining that
the petitioner had successfully demonstrated a prima facie violation, the Court
first stated that prior precedent “without doubt established that women ‘are
sufficiently numerous and distinct from men’ so that ‘if they are systematically
eliminated from jury panels, the Sixth Amendment’s fair-cross-section
requirement cannot be satisfied.’” Id. at 364 (quoting Taylor v. Louisiana, 419
U.S. 522, 531 (1975)). Next, the petitioner’s “statistical presentation” evidenced
“a gross discrepancy between the percentage of women in jury venires and the
percentage of women in the community.” Id. at 364, 366. Finally, to establish
the systematic nature of that underrepresentation, the petitioner had pointed,
inter alia, to provisions of Missouri’s law that granted women automatic
exemptions from jury service. Id. at 366–67. Given the “statistics and other
evidence” presented by the petitioner, the Court held that he had demonstrated
a prima facie fair-cross-section violation. Id. at 366, 367.
                     (ii) Analysis
       In contrast to the showing made in Duren, Defendants here have done
nothing more than advance conclusory statements to the effect that “the
exclusion from the venire panel of [Horton] established a prima facie violation
of both the fair cross-section requirement of the Sixth Amendment and the Equal


       5
         Although Duren involved a claim based on the Sixth Amendment and not the Equal
Protection Clause, “the equal protection analysis employs a prima facie case test virtually
identical to the one used in the fair cross-section analysis.” Bowen v. Kemp, 769 F.2d 672, 683
(11th Cir. 1985). Indeed, the Supreme Court’s analysis in Duren largely mirrors that
undertaken by the Castaneda Court. Compare Duren, 439 U.S. at 360–67, with Castaneda,
430 U.S. at 495–99.

                                              16
                                   No. 10-40525

Protection Clause of the Fourteenth Amendment.” Defendants provide no
supporting authority for their assertion that individuals who need to urinate
frequently are a “distinct” class. By extension, Defendants provide no statistical
data as to the representation of this supposed class on venires, or in the
community at large. They therefore fail to demonstrate any degree of
underrepresentation of this group and, relatedly, advance no argument
supporting their implicit assumption that the individuals in this group have
been underrepresented due to their purposeful or systemic exclusion during the
jury selection process. In sum, Defendants simply have not established error,
plain or otherwise, in connection with the exclusion of Horton.
      (3) Denial of Defendants’ For Cause Challenges
      Defendants next assert that the district court erred in refusing to grant
their challenges for cause to three prospective jurors, which they contend
violated their right to an impartial jury.
             (a) Standard of Review
      “The appellate court reviews the district court’s ruling on jury impartiality
for ‘manifest abuse of discretion.’” United States v. Wharton, 320 F.3d 526, 535
(5th Cir. 2003) (quoting United States v. Munoz, 15 F.3d 395, 397 (5th Cir.1994));
see also Skilling v. United States, 130 S. Ct. 2896, 2923 (2010) (“A trial court’s
findings of juror impartiality may be overturned only for manifest error.”)
(citation omitted). “In reviewing claims of this type, the deference due to district
courts is at its pinnacle . . . .” Skilling, 130 S. Ct. at 2923.
             (b) Applicable Law
      As noted above, the general “standard for determining when a venire
member may be excluded for cause is whether the prospective ‘juror’s views
would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath.’” Soria v. Johnson, 207 F.3d
232, 242 (5th Cir. 2000) (quoting Wainwright, 469 U.S. at 424). In addressing

                                         17
                                      No. 10-40525

a claim that an empaneled jury was not impartial, however, the inquiry turns
not on the district court’s alleged failure to remove for cause certain prospective
jurors, but rather on whether the jurors who ultimately sat were impartial. Ross
v. Oklahoma, 487 U.S. 81, 86 (1988). In other words, “[a] district court’s
erroneous refusal to grant a defendant’s challenge for cause is only grounds for
reversal if the defendant establishes that the jury which actually sat to decide
his guilt or innocence was not impartial.” Wharton, 320 F.3d at 535.
       The reasoning behind this approach is that peremptory challenges—which
simply “are a means to achieve the end of an impartial jury”—often cure errors
purportedly committed when trial courts refuse to grant challenges for cause.
Ross, 487 U.S. at 88. Because “peremptory challenges are not of constitutional
dimension . . . . the fact that the defendant had to use a peremptory challenge
to achieve [an impartial jury] does not mean the Sixth Amendment was
violated.” Id. Indeed, the Supreme Court expressly has held that “a defendant’s
exercise of peremptory challenges . . . is not denied or impaired when the
defendant chooses to use a peremptory challenge to remove a juror who should
have been excused for cause.” United States v. Martinez–Salazar, 528 U.S. 304,
317 (2000).
              (c) Discussion
       Here, Defendants were entitled to twenty peremptory challenges. Fed. R.
Crim. P. 24(b)(1). Because Defendants were scheduled to be tried jointly, the
district court inquired of defense counsel prior to trial as to whether Defendants
would require additional challenges. Ultimately, the court granted Defendants
ten additional peremptory challenges for Defendants to divide as they wished.6
Following voir dire, Defendants moved for “one or more” additional peremptory


       6
         This is expressly permitted by Rule 24(b), which states that “[t]he court may allow
additional peremptory challenges to multiple defendants, and may allow the defendants to
exercise those challenges separately or jointly.” Fed. R. Crim. P. 24(b).

                                            18
                                 No. 10-40525

challenges and urged the district court to reconsider its allegedly erroneous
denial of Defendants’ challenge for cause to seven prospective jurors. Included
in the group of venire members Defendants had unsuccessfully challenged for
cause were prospective jurors 17, 132, and 184. Defendants argued that if they
were not granted additional challenges, they would be forced to lodge
peremptory challenges against these individuals, and therefore would be “unable
to remove other objectionable jurors who were not necessarily disqualified as a
matter of law but who were nonetheless unable to be fair and impartial jurors
in the judgment of defendants.” Listed amongst the latter venire members was
prospective juror number 129, who ultimately was empaneled.
      On appeal, Defendants essentially maintain that they were denied the
right to an impartial jury because they could not exercise a peremptory
challenge against prospective juror number 129, since they had partially
exhausted their challenges on venire persons 17, 132, and 184, whom they argue
should have been dismissed for cause.
            (d)   Defendants’ Argument Fails Under Wharton
      Although the parties vigorously disagree about whether prospective jurors
17, 132, and 184 should have been excused for cause, because Defendants
ultimately exercised peremptory challenges to remove these venire persons, this
disagreement is irrelevant under Wharton. There, a defendant appealed the
lower court’s denial of his challenge for cause to a venire person the defendant
claimed was biased. Wharton, 320 F.3d at 535.         Although the defendant
eventually had used a peremptory challenge to exclude the allegedly biased
prospective juror, he argued on appeal that this precluded him from using the
challenge to exclude from the jury another individual he otherwise would have
challenged. Id. Relying on Martinez–Salazar, the Wharton court held that “[a]
district court’s erroneous refusal to grant a defendant’s challenge for cause is
only grounds for reversal if the defendant establishes that the jury which

                                      19
                                  No. 10-40525

actually sat to decide his guilt or innocence was not impartial.” Id.; see also
Martinez–Salazar, 528 U.S. at 307 (holding that if a defendant elects to cure the
erroneous refusal to dismiss a potential juror for cause “by exercising a
peremptory challenge, and is subsequently convicted by a jury on which no
biased juror sat, he has not been deprived of any rule-based or constitutional
right”). Because the defendant had not shown that the empaneled jury was
biased, the Wharton court rejected the defendant’s argument. 320 F.3d at 536.
      Thus, even assuming that prospective jurors 17, 132, and 184 should have
been dismissed for cause, Defendants still must establish that the seated jury
was not impartial. On this score, Defendants point only to prospective juror 129
(“Godkin”), who eventually was selected for the jury. On her questionnaire,
Godkin placed her feelings as to the propriety of the death penalty at seven on
a ten-point scale (where one indicated that the prospective juror felt capital
punishment was always improper). When probed about this, Godkin explained
that she arrived at seven given her belief that “life is very precious” and that a
“person who takes that life is responsible and should be punished.” She stated,
however, that she could comply with the law and the judge’s instruction about
imposing capital punishment, and she affirmed that she did not “have any
problem with the fact that it is the government’s burden to prove the death
penalty is justified.”   Godkin also acknowledged that, depending on the
circumstances of a case—including evidence as to any mitigating and
aggravating factors—either the death penalty or a life sentence may be
appropriate for “[p]lanned and deliberate murder.”
      Nevertheless, Defendants argue that had they not been required to
exhaust their peremptory strikes on prospective jurors who purportedly should
have been dismissed for cause, they would have used one on Godkin. Aside from
her “leanings in favor of the death penalty,” Defendants also emphasize that
Godkin had relatives in law enforcement and was acquainted with a crime

                                       20
                                       No. 10-40525

victim and perpetrator.7 Defendants neglect, however, the incidental nature of
these connections, and ignore that Godkin expressly testified that these
experiences would not impact her ability to be fair and impartial.8 Indeed,
Defendants admit that Godkin “was not subject to a challenge for cause.” Simply
put, despite Defendants’ contention to the contrary, there is nothing in the
record to suggest that Godkin was not impartial.
       Because Defendants point to no other evidence that the jury was not
impartial, Wharton compels us to conclude that Defendants have not established
that the district court erred in refusing to excuse for cause prospective jurors 17,
132, and 184.9 See 320 F.3d at 535–36.
B. Lesser-Included-Offense Instruction
       At trial, the district court denied Defendants’ request for an instruction on
second degree murder, manslaughter, and involuntary manslaughter as lesser
included offenses of first degree murder. Defendants now appeal the denial of
an instruction on second degree murder.


       7
         Godkin stated that her brother and nephew worked as security guards. She replied,
however, that she did not believe their occupation would impact her ability to be a fair juror
in this case.
       8
        Godkin explained that a friend’s brother had been killed in a drive-by shooting and her
husband’s cousin had been convicted of rape. She was unaware, however, of many details
surrounding these occurrences and, in any event, affirmed that “neither of these circumstances
[had] any impact . . . on [her] ability to be fair and impartial.”
       9
        Defendants also assert that Martinez–Salazar left open the question of “whether it is
reversible error to refuse to afford a defendant a peremptory challenge beyond the maximum
otherwise allowed, when he has used a peremptory challenge to cure an erroneous denial of
a challenge for cause and when he shows that he would otherwise [have] use[d] his full
complement of peremptory challenges for the noncurative purposes that are the focus of the
peremptory right.” 528 U.S. at 317–18 (Souter, J. concurring). Defendants ignore that the
language they rely on emanates not from the majority opinion, but from Justice Souter’s
concurrence. Moreover, even that authority is inapposite, as Justice Souter’s proposed scenario
involves a situation, unlike the one here, in which a court refuses to grant a defendant
additional peremptory challenges beyond the maximum afforded by Rule 24. Finally,
regardless of any relevant “open question” remaining after Martinez–Salazar, Wharton itself
is squarely on point, and Defendants do not argue otherwise.

                                              21
                                  No. 10-40525

      (1) Standard of Review
      We review de novo the district court’s determination of whether a
particular offense is a lesser included offense of a charged offense. United States
v. Finley, 477 F.3d 250, 256 (5th Cir. 2007). We review for abuse of discretion
the lower court’s determination as to “whether a jury could rationally acquit on
the greater offense yet convict on the lesser.” Id.
      (2) Applicable Law
      A defendant is only entitled to a lesser-included-offense instruction if “(1)
the elements of the lesser offense are a subset of the elements of the charged
offense and (2) the evidence at trial is such that a jury could rationally find the
defendant guilty of the lesser offense yet acquit him of the greater.” Id. at 255;
see also Keeble v. United States, 412 U.S. 205, 208 (1973) (noting that a
“defendant is entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of the lesser offense
and acquit him of the greater”). “While a defendant’s request for a lesser
included offense charge should be freely granted, there must be a rational basis
for the lesser charge and it cannot serve merely as ‘a device for defendant to
invoke the mercy-dispensing prerogative of the jury.’” United States v. Collins,
690 F.2d 431, 438 (5th Cir. 1982) (quoting United States v. Sinclair, 444 F.2d
888, 890 (D.C. Cir. 1971)), cert. denied, 460 U.S. 1046 (1983).
      As relevant, the murder statute at issue here provides:
      Murder is the unlawful killing of a human being with malice
      aforethought. Every murder perpetrated by poison, lying in wait, or
      any other kind of willful, deliberate, malicious, and premeditated
      killing . . . is murder in the first degree.
      Any other murder is murder in the second degree.
18 U.S.C. § 1111(a). We previously have stated that “[a] killing is ‘premeditated’
when it is the result of planning or deliberation. The amount of time needed for
premeditation of a killing depends on the person and the circumstances. It must

                                        22
                                   No. 10-40525

be long enough for the killer, after forming the intent to kill, to be fully conscious
of that intent.” United States v. Agofsky, 516 F.3d 280, 282 n.2 (5th Cir. 2008)
(citation omitted).
      (3) Discussion
      The question of whether the elements of second degree murder are a
subset of the elements of first degree murder is not in dispute. Rather, the
parties disagree as to whether the district court erred in holding that the
evidence was not such that a juror could rationally find Defendants guilty only
of second degree murder and acquit them of first degree murder. Defendants
advance two primary claims in arguing that the district court erred in so
holding. First, they assert that the court’s ruling conflicts with Beck v. Alabama,
447 U.S. 625 (1980). Second, they contend that “[t]he jury should have been
instructed on second-degree murder because the evidence of premeditation was
insufficient and hotly disputed.” For the reasons set forth below, we reject
Defendants’ arguments.
             (a) Beck v. Alabama
      In Beck, the Supreme Court struck down an Alabama statute, “unique in
American criminal law,” that prohibited capital defendants from submitting
lesser-included-offense instructions. Id. at 635. In explaining its reasoning, the
Court stated that “when the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense—but leaves some doubt with
respect to an element that would justify conviction of a capital offense—the
failure to give the jury the ‘third option’ of convicting on a lesser included offense
would seem inevitably to enhance the risk of an unwarranted conviction.” Id. at
637. The Court thus held that Alabama was “constitutionally prohibited” from
statutorily precluding a lesser-included-offense instruction in capital cases. Id.
at 638.



                                         23
                                     No. 10-40525

       Relying on Beck, Defendants argue that the district court violated their
“rights to due process” by denying their request for an instruction on second
degree murder. In pressing this argument, however, Defendants overread Beck.
Nothing in the Court’s opinion suggests that district courts are constitutionally
compelled to give lesser-included-offense instructions where they are not
supported by the evidence.         Indeed, Beck repeatedly indicates that lesser-
included-offense instructions are proper only where the evidence warrants them.
Id. at 635 n.11, 636 & n.12. This reading of Beck is confirmed by subsequent
caselaw. See Schad v. Arizona, 501 U.S. 624, 648 (1991) (suggesting that Beck
would not “be satisfied by instructing the jury on just any lesser included
offense, even one without any support in the evidence”); Schmuck v. United
States, 489 U.S. 705, 716 n.8 (1989) (stating that a lesser-included-offense
instruction is appropriate only where the evidence at trial is “such that a jury
could rationally find the defendant guilty of the lesser offense, yet acquit him of
the greater”).
      Accordingly, to the extent Defendants argue that a lesser-included-offense
instruction was constitutionally required under Beck—even absent evidentiary
support for one—we reject their argument.
            (b) Evidence of Premeditation
      Defendants next take issue with the district court’s conclusion that the
evidence that Rhone’s murder was premeditated would not have allowed the jury
rationally to find them guilty of second degree murder, yet acquit them of first
degree murder. The primary thrust of Defendants’ argument is that Rhone—an
individual they characterize as “a troubled, disliked and mentally disturbed
inmate”—was      murdered     in     a   fit    of   “spontaneous   violence   without
premeditation.” They emphasize that Rhone allegedly had threatened to kill
Defendants the night before the murder, and that they would not have had the



                                           24
                                      No. 10-40525

opportunity to commit their crime if prison officials had followed proper
procedures.
       Defendants neglect, however, the extensive evidence the government
presented regarding premeditation. This evidence established that both Snarr
and Garcia were classified as “single-cell” inmates who were housed in the
prison’s special housing unit (“SHU”) while awaiting transfer to the federal
administrative maximum security prison (“ADX”) in Florence, Colorado. As
such, neither defendant had a cellmate, and each spent his allotted recreation
period—one hour per day—alone in an outdoor “recreation cage.” Defendants
also were classified as “three-man hold” inmates, meaning that they were
required to be escorted by three correctional officers when out of their cells, and
could not be moved while other inmates were in the same hallway.
       On the day of Rhone’s murder, the situation in the SHU was not normal.
The unit was short-staffed, there had been an altercation in one of the cells, fire
alarms were sounding, and one area of the prison was flooding. In the midst of
this chaos, four officers began escorting prisoners from recreation cages back to
their cells. However, two inmates—both of whom were incarcerated in cells near
Defendants—refused to leave their recreation cages.10 Accordingly, the officers
decided to remove compliant inmates, including Defendants, first.
       As officers handcuffed Garcia to escort him back to his cell, Snarr began
shouting that he needed to use the restroom. In the interest of clearing the
recreation cages of all compliant inmates, and to accommodate Snarr’s need to
use the restroom, officers decided to remove him too. Officer Baloney, who was
unaware that Garcia was on three-man hold status, began moving Garcia
without assistance, while two other officers began moving Snarr.                      This



       10
         The evidence indicated that one of these inmates, Frankie Delacruz, was in the same
prison gang as Garcia, suggesting that he was acting in concert with Defendants.

                                            25
                                       No. 10-40525

confluence of events, which the government argued had been orchestrated to
create chaos and divert the staff’s attention, set the stage for Rhone’s murder.11
       Beyond introducing testimony supporting the theory that these events
were “inmate manipulated” and designed to exploit the guards’ weaknesses, the
government presented other evidence of premeditation. In particular, one
inmate testified that, on the day of the murder, he had supplied Snarr with at
least one shank, and perhaps two. This same inmate testified to circumstances
suggesting that Garcia may have been trying to obtain a mechanical pencil, the
parts of which can be used to open handcuffs. Other witnesses similarly testified
as to the planning required merely to obtain weapons in prison.
       Witnesses also explained that Defendants were angry at Rhone for what
they deemed to be Rhone’s “disrespectful” behavior. Corrections officer Dawn
Gallagher testified, for example, that prior to the murder Rhone had exposed his
penis to her and ejaculated on her shoe. Defendants expressed to her that they
were “very upset” and offended by Rhone’s behavior. Another witness testified
that before the murder, he had heard Rhone yell, “Whoever ain’t Muslim on this
tier can suck my dick,” and another witness testified to hearing one of the
defendants say to Rhone during the murder, “You want us to suck your dick.”
After the murder, Snarr told another inmate that he killed Rhone because Rhone
had cursed at him and made too much noise in his cell. Similarly, after
describing Rhone’s “disrespectful” behavior, Garcia told a different inmate that,
while Rhone “would just talk and talk and talk,” Garcia was “sharpening [his]
knife” in preparation for the murder.
       Finally, the government introduced other statements Defendants made
that suggested the crime had been planned. While Snarr struggled to open

       11
           One witness testified that Garcia told him that he and Snarr had “jacked the rec
cage” to assure they could carry out the murder. Other witnesses testified to the general
ability of inmates to exploit or precipitate the conditions that enabled Defendants to carry out
their attack.

                                              26
                                      No. 10-40525

Rhone’s cell door, for example, Garcia shouted either “I’m going to kill you,” or
“We going to kill you.” Shortly after the murder, either Snarr or Garcia yelled,
“That’s how you get your enemy,” and Snarr exclaimed, “Dude disrespected us,
and that’s what he got.” Finally, an agent who investigated the murder testified
that Defendants implicitly admitted to planning the murder by stating to him
that they did not “intend to get the staff,” and that “[i]t wasn’t supposed to
happen that way with the staff.”
       (4) Conclusion
       Simply put, the evidence overwhelmingly demonstrates premeditation.12
In view of this evidence, a jury could not rationally have found Defendants guilty
of second degree murder, while acquitting them of first degree murder.
Accordingly, the district court did not abuse its discretion in denying Defendants’
request for a lesser-included-offense instruction.
C. Sufficiency of the Evidence
       At the conclusion of the eligibility phase of the trial, the district court
instructed the jury on several aggravating factors. Defendants allege that the
evidence was insufficient to support the jury’s findings as to two: (1) that the
murder involved “substantial premeditation and planning,” and (2) that it was
committed in an “especially heinous, cruel, and depraved manner.”13 Defendants
likewise allege that the evidence was insufficient to support the jury’s finding as
to the non-statutory aggravating factor that Snarr and Garcia pose a threat of
future dangerousness.
       (1) Standard of Review



       12
         Defendants’ arguments painting Rhone as a troublemaker who threatened them
demonstrates rather than disproves premeditation, insofar as it supplies an additional motive
for the murder.
       13
         As discussed below, each of these is a statutory aggravating factor set forth in 18
U.S.C. § 3592(c).

                                             27
                                   No. 10-40525

      This court reviews “jury findings of aggravating factors by asking whether,
after viewing the evidence in a light most favorable to the government, any
rational trier of fact could have found the existence of the aggravating
circumstance beyond a reasonable doubt.” Bernard, 299 F.3d at 481.
      (2) Substantial Premeditation and Planning
             (a) Applicable Law
      As noted, the government alleged that Defendants murdered Rhone “after
substantial planning and premeditation”—an aggravating factor under 18 U.S.C.
§ 3592(c)(9). In United States v. Flores, we observed that the term “substantial,”
as used in 18 U.S.C. § 3592(c)(9), “denote[s] a thing of high magnitude.” 63 F.3d
1342, 1373–74 (5th Cir. 1995). Elsewhere, we have held that “substantial
planning” thus may properly be “defined as requiring a considerable amount of
planning preceding the killing.” Davis, 609 F.3d at 690 (internal quotation
marks omitted). And, as previously explained, “[a] killing is ‘premeditated’ when
it is the result of planning or deliberation. The amount of time needed for
premeditation of a killing depends on the person and the circumstances. It must
be long enough for the killer, after forming the intent to kill, to be fully conscious
of that intent.” Agofsky, 516 F.3d at 282 n.2 (citation omitted).
             (b) Discussion
      We already have discussed above the evidence the government presented
in connection with this aggravating factor.          Defendants advance no new
arguments in the context of this challenge, but instead continue to maintain that
the murder was a crime of coincidence, precipitated by events over which they
had no control. Given the overwhelming nature of the government’s evidence,
however, a rational juror easily could have concluded that Defendants murdered
Rhone after substantial planning and premeditation.            We therefore reject
Defendants’ contention to the contrary.
      (3) Especially Heinous, Cruel, or Depraved Murder

                                         28
                                  No. 10-40525

            (a) Applicable Law
      Under 18 U.S.C. § 3592(c)(6), the government also alleged that Defendants
murdered Rhone “in an especially heinous, cruel, or depraved manner in that it
involved torture or serious physical abuse.” “As indicated by the statute, a
murder may be especially heinous, cruel, or depraved if it involves either torture
or serious physical abuse.” United Stated v. Agofsky, 458 F.3d 369, 374 (5th Cir.
2006). Because the government does not assert that Rhone was tortured, the
question here is reduced to whether there was sufficient evidence to support the
jury’s conclusion that the murder involved “serious physical abuse.”
      In Agofsky, we held that “[f]or serious physical abuse to be aggravating in
a murder case, a defendant must inflict suffering or mutilation above and beyond
that necessary to cause death. Furthermore, a defendant must intend such
gratuitous violence for the murder to involve serious physical abuse.” Id.
(emphasis added) (internal citation omitted). The Agofsky court held that these
conditions had been satisfied in that case, as the defendant there repeatedly had
stomped on the victim’s face and neck even after the victim lost consciousness.
Id. Beyond presenting eyewitness accounts of the attack, the government also
had introduced evidence that the “assault was so violent that it splattered [the
victim’s] blood and other bodily fluids on the floor and wall.” Id. at 375.
Additionally, the medical evidence adduced at trial revealed the extensive
nature of the victim’s injuries. Id. The court found the totality of this evidence
supported the conclusion that “a rational jury could find beyond a reasonable
doubt that [the defendant] intended to inflict (and in fact inflicted) more abuse
than necessary to cause [the victim’s] death.” Id. at 374.
      Similarly, in United States v. Ebron, we held that the evidence in that case
supported the determination that “a rational trier of fact could have concluded,
beyond a reasonable doubt, that serious physical abuse was involved in [the
victim’s] murder.” 683 F.3d 105, 151 (5th Cir. 2012). As here, Ebron involved

                                       29
                                  No. 10-40525

the murder of an inmate who had been stabbed to death in prison. Id. At trial,
the government had established that the victim “was stabbed 106 times by a
sharp, round instrument in an eight-inch by four-inch area over his heart, left
lung, and liver.” Id. The court explained that, based on this evidence, a rational
“trier of fact could have determined that the mutilation of [the victim’s] body
went above and beyond what [was] necessary to cause death.” Id. Additionally,
the court concluded that, given “the number of stab wounds,” as well as the
testimony indicating “that the assault appeared to have been a message to the
rest of the inmate population,” “a rational trier of fact could have also concluded
that [the defendant] specifically intended that [the victim] be subjected to
serious physical abuse.” Id.
            (b) Discussion
      Here, the government introduced extensive evidence to establish that
Rhone’s murder involved serious physical abuse that Defendants intended to
inflict. First, jurors saw a video of the crime, which shows Defendants savagely
killing Rhone. Jurors also heard from a prison official who stated that, during
the attack, he tried to persuade Defendants “to stop the assault” on Rhone by
telling them, “Look, he’s dead. He’s dead. The guy is dead. Get off of him.”
Defendants responded by smirking and continuing their attack, which the
witness described as “frenzied.” A rational trier of fact could have concluded
from this that Defendants intended to subject Rhone to serious physical abuse.
      The jury also viewed photographs taken shortly after the attack that
showed Rhone’s blood pooled on the prison’s floor and running down its walls.
Moreover, they heard evidence about the state of Rhone’s body after the attack.
For example, one inmate who saw Rhone’s corpse described it as “a human being
that was no longer a human” because Rhone’s whole “body was a stab wound”
and “[h]e was pulp.” Further, the forensic pathologist who performed Rhone’s
autopsy testified that Defendants had inflicted fifty stab wounds to Rhone’s head

                                        30
                                  No. 10-40525

and upper body: eighteen to his front side, and thirty-two to his back. The
pathologist also stated that Rhone sustained numerous other lacerations,
abrasions, and trail wounds that were not sufficiently deep to constitute stab
wounds. Although the pathologist testified that the stab wound to Rhone’s heart
was the ultimate cause of death, he explained that several of his wounds could
have been fatal, suggesting that the assault had been gratuitous.
      We thus observe that many of the facts here are analogous to those
presented in Agofsky and Ebron: the attack was so violent that it splattered
Rhone’s blood on the floor and walls, Rhone suffered extensive injuries, and
Rhone was stabbed multiple times beyond that necessary to precipitate death.
Defendants do not appear to contest these facts, but instead argue that the
rapidity with which the murder was carried out demonstrates a lack of intent to
inflict physical abuse separate and apart from the murder itself. Nevertheless,
we already have rejected elsewhere the notion that the alleged brevity of an
attack precludes a finding that it was committed in an especially heinous, cruel,
or depraved manner.      Agofsky, 458 F.3d at 375 (“[V]iolence need not be
protracted to be gratuitous.”).
      In sum, based on the evidence presented at trial, a rational juror could
have concluded that Defendants intended to inflict, and in fact did inflict,
greater abuse than that necessary to cause Rhone’s death.
      (4) Future Dangerousness
            (a) Applicable Law
      Although 18 U.S.C. § 3592(c) sets forth several statutory aggravating
factors that a jury may consider when contemplating the propriety of the death
penalty, the statute also permits the jury to “consider whether any other
aggravating factor for which notice has been given exists.”           Here, the
government provided notice as to the non-statutory aggravating factor of future
dangerousness. In particular, the government alleged that Defendants pose “a

                                       31
                                    No. 10-40525

continuing and serious threat to the lives of others because it is likely that [they]
will commit criminal acts of violence in the future.” Where the alternative to the
death penalty is life imprisonment, the government “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.” Simmons v. South Carolina, 512 U.S. 154, 165 n.5 (1994).
      Under 18 U.S.C. § 3593(c), the presentation of evidence is not limited by
“the rules governing admission of evidence at criminal trials.” Evidence of
future dangerousness necessarily touches upon a variety of topics, including a
defendant’s juvenile record, prior murders and other crimes, and prison records.
See Fields, 483 F.3d at 324–25; United States v. Bourgeois, 423 F.3d 501, 511–12
(5th Cir. 2005). “What is essential is that the jury have before it all possible
relevant information about the individual defendant whose fate it must
determine.” Jurek v. Texas, 428 U.S. 262, 276 (1976).
             (b) Discussion
      At trial, the government argued that Snarr would be a future threat to the
safety of others based on his continuing pattern of violence and institutional
misconduct, lack of remorse, low likelihood of rehabilitation, and membership
in a racist gang. The government’s evidence on this front included that: two of
Snarr’s fifteen juvenile felonies were “life endangering”; on numerous occasions,
Snarr had stabbed or beaten fellow inmates—crimes often motivated by Snarr’s
membership in a racist prison gang; Snarr twice had been caught with weapons
in the Beaumont prison; immediately after Rhone’s murder, Snarr and Garcia
had acted in a celebratory manner, “almost like . . . a bunch of guys that just won
a softball game”; and Snarr had indicated to a fellow inmate that he “had no
intention of getting out [of prison], that this was his life, this is what he did, this
is what he lives for.”



                                          32
                                      No. 10-40525

      As to Garcia, the government argued that he would be a future threat to
the safety of others based on his continuing pattern of violence and institutional
misconduct, lack of remorse, low likelihood of rehabilitation, and membership
in a racist gang. The government’s evidence on this front included testimony
that: before entering prison, Garcia participated in a drive-by shooting and
allegedly murdered a man named Jacob Ponce;14 Garcia had stabbed or beaten
fellow inmates on numerous occasions, often in connection with his membership
in a violent prison gang; prison officials twice had caught Garcia with weapons;
Garcia gloated about or celebrated the murders of Ponce and Rhone; and he had
made numerous statements to fellow inmates indicating his lack of remorse and
unlikely rehabilitation.
      In arguing that this evidence was insufficient to allow the jury rationally
to conclude that they posed a threat of future dangerousness, Defendants
primarily rely on the testimony of a prison consultant and former warden named
Mark Bezy. Bezy testified that Defendants would likely be moved to the ADX
prison—“the most secure facility the Bureau [of Prisons] has”—which essentially
would preclude them, he contended, from engaging in further dangerous activity.
Whatever impact Bezy’s testimony had, however, was undercut by a government
rebuttal witness named Greg Hershberger, who previously served as the warden
at the ADX. Hershberger explained that the goal of the ADX is to prepare
inmates to function in the general population of another prison facility.
Hershberger further testified that based on their histories, Defendants likely
could successfully complete the ADX’s transition program and be moved to the
general population of another facility.
      Accordingly, based on Hershberger’s testimony, the extensive evidence as
to Defendants’ pattern of violence and institutional misconduct, and Defendants’



      14
           We note that Garcia apparently was never charged with this murder.

                                            33
                                     No. 10-40525

attack in this case on Rhone and the Beaumont penitentiary’s correctional
officers, a rational juror could have concluded that Defendants pose a future
threat to the safety of other inmates or prison staff.
D. Motion to Sever
      Prior to trial, the district court denied Defendants’ motion to sever.
Defendants appeal that ruling, arguing that it is “likely that [they] would have
been acquitted or not received the death penalty had each been tried separately.”
      (1) Standard of Review
      “There is a preference in the federal system for joint trials of defendants
who are indicted together.”15 Zafiro v. United States, 506 U.S. 534, 537 (1993).
We therefore review a grant or denial of severance for abuse of discretion.
United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007).
      (2) Applicable Law
      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.” Fed. R. Crim. P. 14. Rule 14, however, “does not require
severance even if prejudice is shown; rather, it leaves the tailoring of the relief
to be granted, if any, to the district court’s sound discretion.” Zafiro, 506 U.S.
at 538–39 (emphasis added). “[A] district court should grant a severance under
Rule 14 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. Owens, 683 F.3d
93, 98 (5th Cir. 2012) (quoting Zafiro, 506 U.S. at 539).




      15
         Defendants suggest that this preference does not apply in capital cases. However,
as we previously have explained, “the Federal Death Penalty Act contains no special rules
regarding joinder of codefendants.” Bernard, 299 F.3d at 475 n.5.

                                           34
                                  No. 10-40525

      To establish that the district court abused its discretion in denying a
motion to sever, a “defendant must show that: (1) the joint trial prejudiced him
to such an extent that the district court could not provide adequate protection;
and (2) the prejudice outweighed the government’s interest in economy of
judicial administration.” Id. (citation omitted). Because this court is reluctant
to vacate a conviction based on a district court’s refusal to sever a trial, general
claims of prejudice are insufficient to trigger reversal. See Lewis, 476 F.3d at
384. Rather, a “defendant must ‘isolate events occurring in the course of the
trial and then . . . demonstrate that such events caused substantial prejudice.’”
Id. (alteration in original) (quoting United States v. Booker, 334 F.3d 406, 415
(5th Cir. 2003)).   “The defendant also must show that the district court’s
instructions to the jury did not adequately protect him or her from any prejudice
resulting from the joint trial.” Owens, 683 F.3d at 98; see also United States v.
Erwin, 793 F.2d 656, 665 (5th Cir. 1986) (“[C]ompelling prejudice is not shown
if it appears that, through use of cautionary instructions, the jury could
reasonably separate the evidence and render impartial verdicts as to each
defendant.”).
      (3) Discussion
      In asserting that they were improperly denied separate trials, Defendants
raise three specific allegations of error. First, Snarr and Garcia each maintain
that his co-defendant would have offered beneficial testimony on his behalf had
the two not been tried together. Second, each defendant contends that certain
evidence presented against his co-defendant prejudiced him by causing a
“spillover” effect that essentially caused the jury to impute the other’s guilt upon
him. Finally, Defendants complain that the district court’s jury instructions did
not overcome the prejudice that purportedly resulted from the spillover of
evidence.
            (a) Co-Defendant Testimony

                                        35
                                       No. 10-40525

       Defendants urge that their joint trial prejudiced them in that it precluded
Snarr from testifying on Garcia’s behalf, and vice versa. To obtain a severance
based on the desire to have a co-defendant testify in his defense, a defendant
must establish: (1) a bona fide need for the co-defendant’s testimony; (2) the
substance of the testimony; (3) the exculpatory effect of the testimony; and (4)
that the co-defendant actually would testify if the trial were severed. Owens,
683 F.3d at 99. In Owens, we explained that the final prong of this test is not
satisfied merely with “[a] statement from a defendant’s attorney . . . that the
defendant’s co-defendant would be willing to testify,” or with statements from
the attorney regarding “the substance of such testimony.” Id. at 100. Rather,
a defendant must present an affidavit from the co-defendant, or some other
“similar proof.” Id. at 99.
       Here, neither Snarr nor Garcia has satisfied his burden of establishing
error, for neither has offered legally sufficient proof that the other would have
testified had the trial been severed. The only support Defendants point to is
their attorneys’ statements that they would have done so. As explained, this is
insufficient to demonstrate that a motion to sever should have been granted.16
Id.
              (b) “Spillover” Effect
       Next, each defendant contends that certain evidence presented against his
co-defendant prejudiced him by causing a “spillover” effect whereby the jury
imputed one defendant’s guilt upon the other. In particular, Snarr alleges that
evidence about Garcia’s previous criminal history—specifically testimony
pertaining to the murder of Jacob Ponce—prejudiced the jury against him.
Similarly, Garcia argues that evidence as to Snarr’s extensive criminal history,


       16
          Because neither Snarr nor Garcia has demonstrated that his co-defendant would have
testified if the trial had been severed, we need not reach the other three prongs set forth in
Owens. 683 F.3d at 99.

                                             36
                                     No. 10-40525

membership in a prison gang, and prison misconduct prejudiced Garcia’s right
to a fair trial and to be sentenced based on his own conduct rather than Snarr’s.
      “A spillover effect, by itself, is an insufficient predicate for a motion to
sever.”    United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002).
Moreover, contrary to Defendants’ implication, the trial in this case was
carefully structured to prevent a spillover effect. During the eligibility phase,
for example, the government did not introduce any individual evidence against
Garcia until after it completed presentation of its evidence against Snarr.17
Likewise, during the selection phase, the government did not present any
evidence against Garcia until after it introduced all evidence against Snarr.
With the exception of one joint witness, Defendants also presented their
mitigating evidence separately.
      Notwithstanding Defendants’ assertions, this careful structuring
maintained a distinction between each defendant. Furthermore, Defendants’
assertions also fail factually.      Although Garcia’s alleged murder of Ponce
certainly was compelling evidence against him, the jury had ample evidence to
convict and sentence Snarr for his own criminal conduct. Similarly, while
Garcia’s history of violence was not as extensive as Snarr’s, the weight of the
evidence against him made it unnecessary for the jury to impute Snarr’s
misdeeds upon Garcia.
      In sum, given the careful manner by which the district court conducted the
trial, the possibility of spillover was remote. Each defendant’s criminal history
justified the jury’s conclusion that his individual actions warranted the death
penalty.
             (c) Jury Instructions



      17
        After the government separately introduced all individual evidence related to each
defendant, two witnesses whose testimony concerned both defendants were called.

                                           37
                                    No. 10-40525

         Finally, Defendants advance general claims that the jury instructions were
insufficient to “overcome the prejudice that resulted from” what they view as the
errors previously discussed. Although we find no error pertaining to Defendants’
previously alleged complaints, we also note that Defendants have not
demonstrated that the district court’s instructions to the jury did not adequately
protect them from any prejudice that may have resulted from their joint trial.
         The record here reflects that the district court repeatedly instructed the
jury that it was required to consider separately each defendant’s culpability.
After the guilt phase, for example, the court instructed the jury that “[t]he case
of each defendant and the evidence pertaining to that defendant should be
considered separately and individually. The fact that you may find one of the
defendants guilty or not guilty should not control your verdict as to the other
defendant.” Similar instructions were provided after the trial’s eligibility and
selection phases. Likewise, in its preliminary instructions preceding each phase,
the court stressed that although Defendants were being tried jointly, “each
defendant is entitled to separate consideration by the jury. The case of each
defendant and the evidence pertaining to that defendant should be considered
separately and individually.” In accordance with these instructions, the jury
returned separate verdict forms for Snarr and Garcia after each phase of the
trial.
         Neither Snarr nor Garcia has offered any specific argument or evidence
suggesting that the court’s instructions were insufficient.        “Because it is
presumed that juries follow the instructions the court gives them, we assume
that the evidence against each defendant was considered separately and
individually.” Owens, 683 F.3d at 99.
         (4) Conclusion




                                         38
                                  No. 10-40525

      Simply put, Defendants have not demonstrated specific prejudice from the
denial of their motion to sever. Accordingly, the district court did not abuse its
discretion in denying the motion.
E. Constitutionality of the FDPA
      Defendants filed in the district court a motion to have the FDPA declared
unconstitutional.   In that motion, Defendants essentially argued that the
statutory aggravating factors required by the FDPA are equivalent to elements
of a crime and, thus, deserve the protections of the Federal Rules of Evidence.
Accordingly, they asserted that evidence related to those factors may not be
presented in the sentencing hearing, because evidentiary standards are relaxed
during that phase of the trial.     The district court denied the motion and
Defendants now appeal.
      (1) Standard of Review
      Constitutional challenges to federal statutes are reviewed de novo. United
States v. Jones, 132 F.3d 232, 239 (5th Cir. 1998).
      (2) Applicable Law and Related Discussion
      As mentioned above, the FDPA provides:
      The government may present any information relevant to an
      aggravating factor for which notice has been provided . . . .
      Information is admissible regardless of its admissibility under the
      rules governing admission of evidence at criminal trials except that
      information may be excluded if its probative value is outweighed by
      the danger of creating unfair prejudice, confusing the issues, or
      misleading the jury.
18 U.S.C. § 3593(c). We previously have explained that the FDPA’s evidentiary
standard is based on the principle that the jury must “receive sufficient
information regarding the defendant and the offense in order to make an
individual sentencing determination.” Jones, 132 F.3d at 241. “Consequently,
the relaxed evidentiary standard does not impair the reliability or relevance of
information at capital sentencing hearings, but helps to accomplish the

                                       39
                                  No. 10-40525

individualized sentencing required by the constitution.” Id. at 242. Accordingly,
this court consistently has held that the FDPA’s relaxed evidentiary standard
during a defendant’s sentencing proceeding is not unconstitutional. See id.;
Webster, 162 F.3d at 354.
      Defendants     acknowledge      that    we   previously   have   upheld   the
constitutionality of the FDPA, but explain that they raise the issue to preserve
it for appeal to the Supreme Court. Because they advance no further argument
in support of their claim, we reject their contention that the FDPA is
unconstitutional.
F. Exclusion of Evidence Pertaining to the Victim’s Character
      Defendants further argue that the district court committed reversible
error by excluding, during sentencing, certain evidence of Rhone’s prior bad acts.
They essentially argue that because the jury is permitted to consider a “victim’s
uniqueness” in imposing punishment, that “uniqueness” necessarily includes
evidence related to the victim’s criminal background. Defendants also assert
that the excluded evidence was necessary to give the jury a proper
understanding of the circumstances that motivated Defendants to murder
Rhone.
      (1) Standard of Review
      At a sentencing hearing conducted pursuant to 18 U.S.C. § 3593(c),
“information may be presented as to any matter relevant to the sentence,
including any mitigating or aggravating factor.”           A “district court has
‘considerable discretion in controlling the presentation of the ‘information’ to the
jury in both content and form.’” United States v. Hall, 152 F.3d 381, 397 (5th
Cir. 1998) (quoting United States v. McVeigh, 944 F. Supp. 1478, 1487 (D. Colo.
1996)), abrogated on other grounds by Martinez–Salazar, 528 U.S. 304. We
review for abuse of discretion. Id.
      (2) Applicable Law

                                         40
                                  No. 10-40525

       Under 18 U.S.C. § 3593(c), a defendant may present any information at
sentencing “relevant to a mitigating factor.”      Likewise, the government is
permitted to “present any information relevant to an aggravating factor for
which notice has been provided.” 18 U.S.C. § 3593(c). As previously noted,
“[i]nformation is admissible regardless of its admissibility under the rules
governing admission of evidence at criminal trials.” Id.
       As part of this “information,” 18 U.S.C. § 3593(a) permits the government,
with proper notice, to introduce victim impact evidence. As explained by the
Supreme Court, “[v]ictim impact evidence is simply another form or method of
informing the sentencing authority about the specific harm caused by the crime
in question.” Payne v. Tennessee, 501 U.S. 808, 825 (1991). By considering such
evidence, juries are able to assess more “meaningfully the defendant’s moral
culpability and blameworthiness.” Id. Introduction of victim impact evidence
remains bounded, however, by the requirement that it be relevant, and that its
probative value outweigh “the danger of creating unfair prejudice, confusing the
issues, or misleading the jury.” 18 U.S.C. § 3593(c); see also Payne, 501 U.S. at
827.
       (3) Discussion
       Defendants maintain that the district court impaired their ability to prove
their mitigating factors related to Rhone because the court excluded certain
evidence of his poor character. Casting their claim as the right to present
“reverse victim impact” testimony under Payne, Defendants contend that it was
impermissible for the court to exclude “evidence of the negative and paint a
slanted picture of the positive.” In particular, Snarr and Garcia complain of the
court’s exclusion of evidence pertaining to Rhone’s alleged extensive “record of
violence and threats to other inmates.”       This record, Defendants submit,
included numerous incidents involving assaults with serious bodily injury,



                                        41
                                       No. 10-40525

fighting, threatening bodily harm, possessing dangerous weapons, and other
similar misdeeds.
       Defendants’ argument as to “reverse victim impact” misapprehends,
however, the purpose of victim impact evidence.                Contrary to Defendants’
assertions—which seem to suggest that a defendant is less culpable if he
murders a vile person—the purpose of permitting victim impact evidence is to
counteract a defendant’s mitigating evidence and fully explain to the sentencing
authority the harm caused by the defendant’s crime. See Payne, 501 U.S. at 825.
Defendants cite no authority that supports their apparent proposition that a
defendant must be permitted to offer general evidence of the victim’s bad
character during the sentencing phase of a federal capital murder case.
       Moreover, to the degree Defendants maintain that the excluded evidence
was necessary to provide a clear picture of the circumstances allegedly
precipitating the murder, we note that the evidence the court did admit about
Rhone gave the jury the context it needed to resolve this issue.18 During opening
arguments, for example, Defendants claimed that Rhone was the first aggressor,
that his conduct was “aggressive and caustic,” that he yelled racial insults at
them “all night long” on the night before the murder, and that he threatened to
kill Defendants. Likewise, Defendants elicited testimony during the trial to the
effect that Rhone was not viewed as a peaceful and law-abiding inmate, that he
was unpredictable and had a violent temper, that he had committed lewd acts


       18
          The district court allowed much of this evidence—particularly that pertaining to
threats Rhone allegedly made against Defendants—despite its view that the evidence was
inadmissible. Other evidence pertaining to Rhone’s mental health, criminal history,
disciplinary records, and remote instances of institutional misbehavior properly was excluded
by the court on relevance grounds, as Defendants were unaware of that evidence at the time
of the murder. Furthermore, even if relevant, the district court also excluded this evidence
based on its holding that its probative value was outweighed by the danger of creating unfair
prejudice, confusing the issues, and misleading the jury. Section 3593(c) permits the court to
so hold, and Defendants present no compelling argument suggesting that this was an abuse
of the court’s discretion.

                                             42
                                       No. 10-40525

while incarcerated, and that he had threatened Defendants.                      Defendants
presented similar evidence during the selection phase of the trial.
         Because the evidence Defendants sought to introduce was irrelevant or
highly prejudicial, the district court did not abuse its discretion in excluding it.
Both Snarr and Garcia had ample opportunity to advance their theory that
Rhone’s conduct was a mitigating factor. That the jury concluded otherwise
reflects the overwhelming nature of the evidence against them, not judicial
error.
G. Exclusion of “Execution Impact” Evidence
         At trial, Garcia sought to introduce evidence as to the impact his execution
would have on certain of his family members. The district court excluded the
evidence based on its holding that precedent from this court precludes execution
impact testimony by a defendant’s family and friends. Defendants appeal.19
         (1) Standard of Review
         As noted above, this court reviews the district court’s decisions regarding
the presentation of information during a capital sentencing hearing under the
abuse of discretion standard. Hall, 152 F.3d at 397.
         (2) Applicable Law
         Because such evidence “does not reflect on [the defendant’s] background
or character or the circumstances of his crime,” “the Supreme Court has never
included friend/family impact testimony among the categories of mitigating
evidence that must be admitted” during a capital trial. Jackson v. Dretke, 450
F.3d 614, 618 (5th Cir. 2006). Accordingly, this court consistently has affirmed



         19
          Snarr joins this appeal based on his contention that because “Garcia was not afforded
a fair trial, . . . it is reasonable to conclude that the jury was likely eased into the death
sentence for Snarr by the joint death sentence of Garcia.” This argument neglects the
individual nature of sentencing evidence presented against each defendant, as previously
described in connection with Defendants’ motion to sever. Nevertheless, because we find
Garcia’s claim to be meritless, we need not dwell on Snarr’s contention.

                                              43
                                         No. 10-40525

the exclusion of execution impact testimony similar to that proffered by Garcia.
See, e.g., Jackson, 549 F.3d at 970 n.3 (affirming the district court’s conclusion
“that general pleas for mercy would not be permitted” from the defendant’s
mother); Kelly v. Lynaugh, 862 F.2d 1126, 1133 n.12 (5th Cir. 1988) (a family
member’s plea to the jury that it spare the defendant’s life did not constitute
mitigating evidence, as it did “not reflect on [the defendant’s] personal
culpability”). Other courts are in accord. See, e.g., Stenson v. Lambert, 504 F.3d
873, 891–92 (9th Cir. 2007) (highlighting that the defendant could not “point to
any federal case requiring admission of ‘execution impact’ testimony because
there are no such cases”).20
       (3) Discussion
       Defendants unpersuasively argue that reliance on our prior cases is
misplaced.21 They urge us to disregard their precedential nature and instead
conclude that the Supreme Court’s analysis in Payne, which upheld the
introduction of victim impact evidence, applies equally well to execution impact
evidence. In other words, they contend that just as a sentencing authority
should be permitted to know about the individual characteristics of the murder


       20
         Although some courts evidently permit execution impact testimony, see Wright v. Bell,
619 F.3d 586, 597–98 (6th Cir. 2010); Sinisterra v. United States, 600 F.3d 900, 909–10 (8th
Cir. 2010), none appear to require it.
       21
          Defendants suggest, for example, that Dretke is inapposite because it involved review,
under the Antiterrorism and Effective Death Penalty Act, of a state court’s decision to exclude
execution impact testimony. Although it is true that Dretke addressed whether the state
court’s decision was “an unreasonable application of Supreme Court precedent,” 450 F.3d at
615, Defendants do not explain how that leads to their conclusion that Dretke’s reasoning is
inapt here. Furthermore, Defendants’ primary argument against the application of Jackson
and Kelly seems to be that those cases merely addressed this issue via footnote. This too is
true, but it does not negate the force of the reasoning underlying those footnotes, nor does it
disturb the binding nature of those cases upon this court. “It is a well-settled Fifth Circuit rule
of orderliness that one panel of our court may not overturn another panel’s decision, absent an
intervening change in the law, such as by a statutory amendment, or the Supreme Court, or
our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
Defendants do not suggest that there has been such an intervening change in the law.

                                               44
                                     No. 10-40525

victim, it should also be permitted to hear information about the convicted
capital defendant—information that necessarily includes evidence about the
defendant’s family and the impact his execution would have on them.
      Defendants again ignore the reasoning behind the Court’s holding in
Payne. Because victim impact evidence relates to the harm caused by the
defendant, Payne held that it is relevant to the jury’s assessment of “the
defendant’s moral culpability and blameworthiness.” 501 U.S. at 825. In this
respect, victim impact evidence fundamentally differs from execution impact
evidence, which in no way reflects on the defendant’s culpability. For this
reason, as we already have explained, the Supreme Court never has held that
execution impact evidence must be admitted in capital cases. See Dretke, 450
F.3d at 618. Defendants present no persuasive argument suggesting we should
so hold now.
      Accordingly, we find no error in the district court’s decision to exclude
Garcia’s proffered evidence regarding the impact his execution would have on his
family.
H. Funding for Investigators and Experts
      Defendants next maintain that they were denied due process when this
court’s chief judge issued an order, pursuant to the Criminal Justice Act (“CJA”),
partially reducing and partially denying funds to Garcia for the retention of
certain experts and investigators.22 Because the government suggests that we
lack jurisdiction to review this claim, we must first consider the precise nature
of Defendants’ claim and our authority to review it.




      22
          Snarr again joins this appeal, though as we already have noted, his argument
overlooks the individual nature of the sentencing process. However, because we again find
Garcia’s claim to be without merit, we need not linger on Snarr’s claim.

                                           45
                                            No. 10-40525

      (1) Background
      Under the CJA, “a person who is financially unable to obtain investigative,
expert, or other services necessary for adequate representation may request
them in an ex parte application.” 18 U.S.C. § 3006A(e)(1). Upon a finding that
such resources “are reasonably necessary for the representation of the defendant
. . . the court may authorize the defendant’s attorneys to obtain such services on
behalf of the defendant and, if so authorized, shall order the payment of fees and
expenses therefor.” Id. § 3599(f). Significantly, however, fees and expenses for
these resources “shall not exceed $7,500 in any case, unless payment in excess
of that limit is certified by the court . . . as necessary to provide fair
compensation for services of an unusual character or duration, and the amount
of the excess payment is approved by the chief judge of the circuit.” Id.
§ 3599(g)(2).
      Here, Garcia submitted a proposed budget requesting funds for the
following experts, investigative services, and expenses:
       •   Blood splatter expert/crime scene expert.....................$10,000
       •   Criminologist.................................................................$10,000
       •   DNA expert......................................................................$7,500
       •   Cultural expert..............................................................$19,000
       •   Expenses..........................................................................$5,000
       •   Investigators..................................................................$25,000
       •   Mental health experts...................................................$45,000
       •   Mitigation expert...........................................................$25,000
       •   Pathologist.....................................................................$10,000
       •   Prison experts................................................................$25,000
       •   Travel costs....................................................................$15,000
       •   Total.............................................................................$196,500
As relevant here, the district court approved the budget after modifying it by: (1)
reducing to $15,000 funds for a cultural expert, and (2) reducing to $5,000 funds
for a pathologist. Pursuant to 18 U.S.C. § 3599(g)(2), this court’s chief judge




                                                    46
                                             No. 10-40525

reviewed the budget, after which she and the district court entered an order
reducing the funding for experts and investigative services to the following:23
      • Investigators and mitigation experts..................................$30,000
      • Mental health expert, pathologist, and psychologist.........$35,000
      • Total.....................................................................................$65,000
      Defendants subsequently entered a motion for the district court to
reconsider the budget. At a hearing related thereto, Garcia presented various
witnesses who testified as to the necessity for Garcia to retain prison, cultural,
and neurological experts. A contractor with the Federal Death Penalty Resource
Council also testified that Garcia’s proposed budget was reasonable. After the
hearing, the district court submitted a memorandum to this court’s chief judge
requesting approval for the following additional funding:
      • Mental health neurological expert....................................$15,000
      • Criminologist/prison culture expert
          and prison administration expert.................................$35,000
      • Cultural mitigation expert................................................$15,000
      • Total....................................................................................$65,000
Based on this request, Garcia was granted approval for an additional $20,000 for
experts and other services. Garcia was denied funds for a “Mexican cultural
expert,” however, based on the chief judge’s ruling that “it would be
inappropriate for testimony to be adduced by either party characterizing the
defendant according to his national origin.” Nevertheless, the district court
expressly ruled that the chief judge’s order did “not preclude the defendant from
presenting mitigating information regarding the effects and experiences of race,
national origin, and/or culture on the defendant through other experts, friends,
or family members.” See Webster, 162 F.3d at 356–57.




      23
         Although travel and other expenses were removed from the budget, the order stated
that they were to be submitted as incurred.

                                                     47
                                  No. 10-40525

      (2) Jurisdictional Challenge
      On appeal, Defendants argue that the order from this court’s chief judge
partially denying and partially reducing funds for their experts denied them due
process. The government suggests, however, that based on our holding in In re
Marcum L.L.P., 670 F.3d 636 (5th Cir. 2012), we lack jurisdiction to consider
Defendants’ claim.
      In Marcum, the petitioner (“Marcum”) sought to appeal an order this
court’s chief judge issued pursuant to section 3006A(e)(3) of the CJA. Id. at 637.
Similarly to section 3599(g)(2) of the CJA—the provision at issue here—section
3006A(e)(3) mandates that payments to experts in excess of $2,400 be certified
by the district court and approved “by the chief judge of the circuit.” 18 U.S.C.
§ 3006A(e)(3). Acting pursuant to that provision, the chief judge had issued an
order partially approving Marcum’s fees in the underlying case, and directing
him to “continue [to] work on” it, despite his desire to resign. Marcum, 670 F.3d
at 637. Marcum appealed to this court for relief, but we held that we were
“without jurisdiction to consider [the] appeal.” Id. at 638.
      The CJA, we noted, “is silent on the availability of judicial review . . . of
the decision by the chief judge of the circuit denying approval of the full amount
certified by the court in which the representation was rendered.” Id. (alteration
in original) (quoting United States v. D’Andrea, 612 F.2d 1386, 1387 (7th Cir.
1980)). Furthermore, we observed that such orders clearly were neither final
district court decisions under 28 U.S.C. § 1291, nor appealable interlocutory
orders under 28 U.S.C. § 1292. Id. Accordingly, adopting the view of the
D’Andrea court, we held that under the CJA:
      [W]hen the chief judge of the circuit has approved compensation or
      reimbursement less than that amount certified by the court in
      which the representation was rendered, counsel may request
      reconsideration by motion. However, this motion is addressed solely
      to the chief judge. Upon disposition of the request for the chief


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       judge to review his decision, further review of the chief judge’s
       decision is not available from this Court and any counsel’s further
       remedy lies in a mandamus action in the United States Supreme
       Court.
Id. (alteration in original) (quoting D’Andrea, 612 F.2d at 1387–88).24
       The government thus suggests that Marcum precludes our review of
Defendants’ claim. Unlike in Marcum, however, Defendants here do not directly
appeal the chief judge’s order. Rather, their claim is that as a result of that
order, they lacked the funds necessary to present an adequate defense, and
therefore were denied due process. In other words, the appeal here relates to
Defendants’ ultimate convictions and sentences, which are final judgments. See
United States v. Bloomer, 150 F.3d 146, 149 (2d Cir. 1998) (emphasizing the
permissibility of appellate review of CJA “determinations that impact a
defendant’s trial, sentence, or collateral challenge to a conviction or sentence”);
United States v. Fields, 722 F.2d 549, 550 (9th Cir. 1983) (holding “that in an
appeal from a final conviction,” the court has “jurisdiction to review a challenge
to a denial . . . of defendant’s request for additional investigative funds”).
Accordingly, we have jurisdiction to consider Defendants’ due process claim
under 28 U.S.C. § 1291.
       (3) Standard of Review
       We review a district court’s denial of funding for expert witnesses for
abuse of discretion.25 See United States v. Castro, 15 F.3d 417, 421 (5th Cir.
1994).
       (4) Applicable Law



       24
         As explained in Marcum, other courts are in accord. See, e.g., United States v. Obasi,
435 F.3d 847, 852 (8th Cir. 2006) (“[A] determination by the chief circuit judge [under the CJA]
can only be challenged by seeking reconsideration or mandamus in the Supreme Court.”).
       25
         As noted above, the budget order that reduced Garcia’s available funds was entered
by both this court’s chief judge and the district court.

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      “[A] criminal trial is fundamentally unfair if the State proceeds against an
indigent defendant without making certain that he has access to the raw
materials integral to the building of an effective defense.” Ake v. Oklahoma, 470
U.S. 68, 77 (1985). However, an indigent defendant does not have an automatic
right to expert assistance upon demand. Yohey v. Collins, 985 F.2d 222, 227 (5th
Cir. 1993). Under Ake, the government must “assure the defendant access to a
competent psychiatrist” when he “demonstrates to the trial judge that his sanity
at the time of the offense is to be a significant factor at trial.” 470 U.S. at 83.
Non-psychiatric experts “should be provided only if the evidence is ‘both critical
to the conviction and subject to varying expert opinion.’” Yohey, 985 F.2d at 227
(quoting Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir. 1991) (internal quotation
marks omitted)). To demonstrate reversible error on the basis that he lacked
inadequate funds for expert witnesses, a defendant must “establish a reasonable
probability that the requested experts would have been of assistance to the
defense and that denial of such expert assistance resulted in a fundamentally
unfair trial.” Id.
      (5) Discussion
      Here, the essence of Defendants’ complaint is that the order reducing
funding for experts and investigators denied Garcia the right to present cultural,
prison, and neurological experts. Contrary to Defendants’ assertions, however,
Garcia was not denied the right to present testimony from a prison or
neurological expert. The court ultimately authorized Garcia $85,000 for experts
and investigators, and largely permitted Garcia to distribute those funds as he
saw fit. In particular, the first budget order authorized $30,000 for investigators
and mitigation experts, and $35,000 for mental health experts, pathologists, and
psychologists. After Garcia’s motion for reconsideration, the court authorized an




                                        50
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additional $20,000 specifically for prison and neurological experts.26 The only
express prohibition placed on Garcia’s expenditures was that they could not be
used to hire a cultural expert. Nevertheless, as noted earlier, the district court
explicitly indicated that this did not preclude Garcia “from presenting mitigating
information regarding the effects and experiences of race, national origin, and/or
culture on the defendant through other experts, friends, or family members.” To
that end, Garcia did in fact present evidence of his cultural background through
family members, as well as an expert psychologist, Dr. Jolie Brams.
      Equally important, Defendants have failed to establish a reasonable
probability that the requested experts would have been of assistance and that
their absence resulted in a fundamentally unfair trial. While Defendants focus
on the experts Garcia did not retain, they neglect that Dr. Brams provided
extensive evidence about the impact on Garcia of his upbringing, his culture, and
his life in prison. Thus, the fact that Garcia did not have additional experts did
not render his trial fundamentally unfair, given that Dr. Brams was able to
present much, if not all, of the evidence Garcia believed to be vital for mitigation
purposes. See United States v. Mikos, 539 F.3d 706, 712 (7th Cir. 2008) (“Just
as a defendant who relies on counsel at public expense must accept a competent
lawyer, rather than Clarence Darrow, so a defendant who relies on public funds
for expert assistance must be satisfied with a competent expert.” (citing Morris
v. Slappy, 461 U.S. 1 (1983))). Moreover, as discussed throughout this opinion,
the government’s case against Defendants was especially strong. Indeed, of the
eighty-six mitigating factors submitted by Garcia, only eleven were found to




      26
         To be sure, the second order also authorized Garcia to use—at his preference—the
additional funds for experts and services already approved under the first order.

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exist by one or more jurors.27          Defendants have not advanced a credible
argument that additional experts would have changed the jury’s calculus.
       Simply put, what Ake and its progeny guarantee to defendants is “an
adequate opportunity [for them] to present their claims fairly within the
adversary system.” 470 U.S. at 77 (quoting Ross v. Moffitt, 417 U.S. 600, 612
(1974)). Here, Defendants were afforded the funding necessary to do so. That
the district court did not provide “expert assistance upon demand,” Yohey, 985
F.2d at 227, does not constitute an abuse of the court’s discretion.
                                 III. CONCLUSION
       For the foregoing reasons, we AFFIRM Defendants’ convictions and capital
sentences in all respects.




       27
          These eleven factors largely relate to failures by correctional officers to follow
procedures at the prison, though they do also include findings pertaining to Garcia’s
upbringing, and a finding that Rhone provoked the attack by making threats to Garcia. Sixty-
eight mitigating factors were submitted by Snarr, though the jury again found only eleven to
exist. As with Garcia, most of these relate to failures by prison officials to follow their
procedures, though the jury also found that Rhone had threatened Snarr, and that Snarr had
“learned to cope with life by the violence he experienced as a child.”

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