United States v. Hardy ( 1999 )

REVISED SEPTEMBER 15, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30486
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAMON CAUSEY,
Defendant-Appellant.
______________________________
No. 96-31171
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PAUL HARDY, also known as P, also known as Cool;
and LEN DAVIS,
Defendants-Appellants.
Appeals from the United States District Court
1
For the Eastern District of Louisiana
August 16, 1999
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant Damon Causey appeals his convictions and resulting
life sentence for violation 18 U.S.C. § 241, conspiracy against
civil rights and 18 U.S.C. § 242, deprivation of rights under color
of law. Appellants Paul Hardy and Len Davis appeal their
respective convictions and death sentences for violation of 18
U.S.C. § 241, conspiracy against civil rights, 18 U.S.C. § 242,
deprivation of rights under color of law and 18 U.S.C. §
1512(a)(1)(c), witness tampering.
We affirm Causey’s convictions and sentence. We reverse Hardy
and Davis’s convictions for witness tampering, affirm their
convictions for violation of §§ 241 and 242, vacate their death
sentences and remand their cases to the district court for
resentencing.
1. FACTS AND PROCEDURAL HISTORY
This is a direct appeal from convictions arising from the
execution-style murder of Kim Marie Groves. Davis, a New Orleans
police officer, targeted Groves because she filed a complaint
against Davis with the Internal Affairs Division (“IAD”) of the New
Orleans Police Department alleging that he engaged in police
brutality. Davis had a relationship with Hardy, a New Orleans drug
dealer, in which Davis exchanged police protection for favors.
2
Davis recruited Hardy and Hardy’s associate Causey to kill Groves.
Davis, Hardy and Causey planned the murder and subsequent coverup.
Hardy was the triggerman who killed Groves.
Davis, Hardy and Causey were charged by indictment with
conspiracy to injure, oppress, threaten and intimidate Groves and
another individual in the right to be free from the use of
unreasonable force by one acting under color of law and in the
right to provide information to law enforcement authorities about
a federal crime, alleging eight overt acts in furtherance of the
conspiracy (Count 1, alleging violation of 18 U.S.C. § 241); with
the substantive violation of Groves’ civil rights (Count 2,
alleging violation of 18 U.S.C. § 242 and 2); and with killing
Groves with the intent to prevent her from communicating
information to a federal law enforcement officer relating to the
commission of a federal offense (Count 3, alleging violation of 18
U.S.C. §§ 1512(a)(1)(C) and 2). The Government, in accordance with
the Federal Death Penalty Act of 1994 (FDPA), filed a Notice of
Intent to Seek the Death Penalty against Davis and Hardy. See 18
U.S.C. § 3593(a).
Trial began on April 8, 1996. The evidence included recorded
telephone conversations among the defendants before and after the
murder, during which they planned and attempted to hide their
involvement with the crime. The recorded interceptions of Davis’s
cellular phone conversations were obtained pursuant to a court-
3
authorized investigation of a suspected drug protection racket run
by Davis and other corrupt New Orleans police officers. The
context of and predicate for the tapes were established by
testimony from Sammie Williams, Davis’s police partner who was
present in the police car during many of the taped conversations.
Steve Jackson, who drove the getaway car for Hardy, also testified
for the Government.
On April 24, 1996, the jury returned a verdict of guilty on
all three counts against Davis and Hardy. Causey was found guilty
on Counts 1 and 2. The jury could not reach a verdict and the
district court declared a mistrial on Count 3 as to Causey.
On April 25, 1996, sentencing hearings required by the FDPA
for Davis and Hardy began in front of the same jury which had heard
the guilt phase of the trial. Davis refused to participate in or
attend the hearings. On the Government’s suggestion, both Davis
and Hardy were examined by a psychiatrist, who concluded that both
were competent to proceed.
The first part of the penalty phase required the jury to make
findings on intent and on the statutory aggravating factors alleged
against Davis and Hardy. No new evidence was taken during this
part of the hearing. The Government re-introduced all the evidence
admitted during the guilt phase. The jury found that Davis
intentionally participated in an act, contemplating that the life
of a person would be taken or that lethal force would be used, and
the victim died as a direct result of his act, pursuant to the
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factor set out at 18 U.S.C. § 3591(a)(2)(C). The jury similarly
found that Hardy intentionally killed his victim, thus satisfying
the intent element described at 18 U.S.C. § 3591(a)(2)(A). The
jury also found that Davis and Hardy committed the offense after
substantial planning and premeditation, consistent with the
statutory aggravating factor set out at 18 U.S.C. § 3592(c)(9).
The jury, however, could not reach a unanimous finding as to the
other statutory aggravating factor alleged against Davis and Hardy,
involving pecuniary gain.
The second portion of the penalty hearing, which focused on
non-statutory aggravation and mitigation, proceeded seriatim. On
April 26, 1996, the jury returned its finding that Davis used his
position as a police officer to affirmatively participate in
conduct that seriously jeopardized the health and safety of other
persons and that Davis posed a threat of future dangerousness to
the lives and safety of other persons, recommending a sentence of
death.
The second half of Hardy’s penalty phase began two days later,
on April 29, 1996. On May 1, 1996, the jury found the non-
statutory agravators that he committed or participated in
additional violent acts and that he poses a threat of future
dangerousness to the lives and safety of others. Additionally,
four jurors found the mitigating factor that Hardy was abandoned by
his natural father and had no suitable male figure in his life; two
5
jurors found that Hardy and his family lived in an abnormally
violent environment; all twelve jurors found that Hardy was abused
and subjected to violence during his formative years and that he
had been traumatized by the death of family members and friends.
Nonetheless, the jury unanimously found beyond a reasonable doubt
that the aggravating factors sufficiently outweighed any mitigation
to justify a sentence of death.
Davis and Hardy were each sentenced on November 6, 1996, to
concurrent death penalties as to all three counts of the third
superseding indictment. On November 27, 1996, Causey was sentenced
to two concurrent life terms. All three defendants filed timely
notices of appeal, which are consolidated before this court.
2. JURY SELECTION
Causey, Hardy and Davis allege that the Government exercised
its peremptory strikes in a discriminatory manner, so as to exclude
African-Americans, particularly African-American females, from the
jury.
All three defendants are African-American males, and the
victim was an African-American female. There were seventy
individuals left in the jury pool after challenges for cause. The
Government was allowed 24 peremptory strikes and the defendants,
collectively, 26. The Government used nine of its peremptory
strikes to challenge African-American females and two to challenge
African-American males. One African-American female was seated on
6
the twelve-member petit jury. Of the four alternates selected,
three were African-Americans (one male, two females) and one was a
white male.
After the jury was seated, the defendants asserted claims
based on Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny.
The district court held that defendants had not made out a prima
facie case of discrimination, but nonetheless instructed the
Government to articulate a race-neutral reason for each of the
challenged strikes. Thereafter, the district court held that the
Government’s reasons were race-neutral, and denied defendants’
Batson challenges.
“When the record contains an explanation for the government’s
peremptory challenges, this Court will review ‘only the propriety
of the ultimate finding of discrimination.’” United States v.
Perkins, 105 F.3d 976, 978 (5th Cir. 1997)(quoting United States v.
Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987)). Moreover, the
district court’s decision on the ultimate question of
discrimination is a fact finding, which is accorded great
deference. Id.Hardy concedes that the Government’s articulated reasons were
race-neutral and that the Batson challenges are without merit under
Fifth Circuit precedent. However, he contends that our standard of
review is too deferential and objects to the use of subjective
factors when exercising peremptory strikes. This panel is bound by
7
the circuit precedent and Hardy’s criticisms of it avail him
nothing.
Davis alleges that the Government selectively questioned
African-American jurors about their religious views and used their
responses as the basis of strikes; that the Government struck
African-Americans for reasons that applied to white jurors who were
not struck; and that the Government’s articulated reasons were
“non-quantifiable.” Causey complains that the Government’s
articulated reasons were not credible, not quantifiable and
internally inconsistent. Further, Causey characterizes the
Government’s jury selection as focused on eliminating African-
American women due to the erroneous and racist view that they would
be more likely to acquit African-American males, based on the fact
that the jury that acquitted O.J. Simpson included nine African-
American females.
Unless a discriminatory intent is inherent in the prosecutor’s
explanations, the reasons offered will be deemed race-neutral. See
Purkett v. Elem, 514 U.S. 765, 768 (1995). The Government’s
explanations were race-neutral and not outside the realm of
credibility. Under the “great deference” standard of review, we
affirm the district court’s assessment of the Government’s
explanations for the exercise of its peremptory strikes. See
United States v. Perkins, 105 F.3d 976, 979 (5th Cir. 1997).
3. UNDER “COLOR OF LAW”
8
Defendants were all convicted for violations of 18 U.S.C. §
241 (conspiracy against rights) and § 242 (deprivation of rights
under color of law). Section 241 provides, in relevant part:
If two or more persons conspire to injure, oppress,
threaten, or intimidate any person in . . . the free
exercise of any right or privilege secured to him by the
Constitution or laws of the United States, or because of
his having exercised the same . . .
They shall be fined under this title or imprisoned not
more than ten years, or both; and if death results from
the acts committed in violation of this section . . .
they shall be fined under this title and imprisoned for
any term of years, or for life, or may be sentenced to
death.
18 U.S.C. § 241. Section 242 provides, in relevant part:
Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person . .
. to the deprivation of rights, privileges, or immunities
secured or protected by the Constitution or laws of the
United States, or to different punishments, pains, or
penalties, on account of such person being an alien, or
by reason of his color, or race, than are prescribed for
the punishment of citizens, shall be fined under this
title or imprisoned not more than one year, or both . .
. and if death results from the acts committed in
violation of this section . . . shall be fined under this
title, or imprisoned for any term of years or for life,
or may be sentenced to death.
18 U.S.C. § 242. While § 242 contains an express requirement that
the deprivation be “under color of law,” § 241 does not. However,
§ 241 has been construed to require state action. See, e.g.,
United States v. Tarpley, 945 F.2d 806, 808 & n.2 (5th Cir. 1991).
Causey, Davis and Hardy challenge their convictions on Counts
1 and 2, alleging that they were not supported by sufficient
evidence that the defendants acted under “color of law.” The
9
verdicts must be sustained unless a reasonable trier of fact could
not have found the “color of law” element beyond a reasonable
doubt. United States v. Williams, 132 F.3d 1055, 1059 (5th Cir.
1998).
Defendants argue that the offense did not have its genesis in
Davis’s police duties. They point out that the evidence
established that Groves’s IAD complaint against Davis was unfounded
and that Davis was angry that she lied about him. Davis then
called on his friend Hardy to vindicate his anger. Defendants note
that they were “totally surreptitious” in using the police vehicle
and Davis’s status as a police officer to commit the crime. They
characterize the murder as “personal” as opposed to “official” and
therefore contend that the crimes were not committed under “color
of law.”
The statutes in question are Reconstruction Era civil rights
statutes making it criminal to deprive a person of rights protected
by the Constitution or laws of the United States under color of
law. See United States v. Price, 383 U.S. 787, 801-806
(1966)(setting out the origins of statutes and their history from
1866 through 1966). Consequently, we have ample guidance from the
Supreme Court concerning the proper interpretation of the phrase
“color of law.” In United States v Classic, 313 U.S. 299(1941), the Supreme Court found that state election officials who
altered ballots were acting under color of state law, because
10
the alleged acts of appellees were committed in the
course of their performance of duties under the Louisiana
statute requiring them to count the ballots, to record
the result of the count, and to certify the result of the
election. Misuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is
clothed with the authority of state law, is action taken
“under color of” state law.
Classic, 313 U.S. at 325-26. In Screws v. United States, 325 U.S.
91 (1945), which involved the beating death of a man by some law
enforcement officers, the Supreme Court again found action under
color of law, because the defendants had
[a]cted under “color” of law in making the arrest of [the
victim] and in assaulting him. They were officers of the
law who made the arrest. By their own admissions they
assaulted [the victim] in order to protect themselves and
to keep their prisoner from escaping. It was their duty
under Georgia law to make the arrest effective. Hence,
their conduct comes within the statute.
Screws, 325 U.S. at 107-8. The Supreme Court held that “acts of
officers who undertake to perform their official duties are
included [within the definition of ‘under color of law’], whether
they hew to the line of their authority or overstep it.” Id. at
111. However, the “acts of officers in the ambit of their personal
pursuits are plainly excluded.” Id. In Griffin v. Maryland, 378
U.S. 130 (1964), the Supreme Court further explained that “[i]f an
individual is possessed of state authority and purports to act
under that authority, his action is state action. It is irrelevant
that he might have taken the same action had he acted in a purely
private capacity.” Id. at 135.
In United States v. Price, 383 U.S. 787 (1966), a deputy
11
sheriff in Mississippi released three prisoners in the middle of
the night, then proceeded to follow them and intercept them. He
removed them from their car and placed them in his official car and
took them to a deserted location, where they were met by two other
policemen and fifteen private individuals, who, acting together,
killed the three victims. The Court found that all the defendants,
including the private citizens, were acting under color of law
because
the brutal joint adventure was made possible by state
detention and calculated release of the prisoners by an
officer of the State. This action, clearly attributable
to the State, was part of the monstrous design described
by the indictment. State officers participated in every
phase of the alleged venture: the release from jail, the
interception, assault and murder.
Price, 383 U.S. at 795.
In United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991),
this court held that a deputy sheriff was acting under color of law
when he assaulted his wife’s former lover out of personal jealousy
in the defendant’s home. The Court explained, the “air of official
authority pervaded the entire incident” because the defendant used
his service revolver, summoned fellow officers from the sheriff’s
station to help him, claimed to have special authority as a police
officer, and ran the victim out of town in a squad car. Id. at
809.
In determining whether sufficient evidence supported the
“under color of law” element of the convictions, we are called on
12
to determine, first, whether Davis misused or abused his official
power, see West v. Atkins, 487 U.S. 42, 50 (1988)1, second, whether
there is a nexus between the victim, the improper conduct and
Davis’s performance of official duties, see Doe v. Taylor Indep.
Sch. Dist., 15 F.3d 443, 452 n.4 (5th Cir. 1994)(en banc), and
third, whether Hardy and Causey jointly engaged with Davis in the
prohibited action. See Price, 383 U.S. at 795.
The jury heard evidence that Davis misused or abused his
official authority in planning, carrying out and covering up the
murder. On October 13, 1994, Davis, along with his police partner
Sammie Williams, who testified for the Government, began their
shift around 2:30 p.m. During that shift, Davis paged Hardy and
Causey, discussed with them his plan to have Groves killed, met
with them in the police station, then took them in his police car
to show them the area that Groves frequented. The jury heard
Davis’s voice on tape telling Williams, “I could get ‘P’ to come do
1
Defendants point out that appellate decisions affirming civil
verdicts for money damages under 42 U.S.C. § 1983 are
distinguishable because the evidence need only support a finding by
a preponderance of the evidence rather than the more stringent
beyond a reasonable doubt criminal standard applicable in this
matter. Keeping in mind that distinction, we nonetheless find
analysis concerning the meaning of “under color of law” language in
§ 1983 instructive in the proper interpretation of the same
language used in §§ 241 & 242. See West v. Atkins, 487 U.S. 42, 49
(1988)(noting that the traditional definition of acting under color
of law articulated in Classic had been adopted for purposes of §
1983 analysis).
13
that ‘hoe now. And then we handle the thirty.”2 Williams
testified that the statement meant that Davis would get Hardy would
kill Groves, then Davis and Williams would respond to the murder
scene and “handle” any evidence that might link Hardy to the crime.
Later in the shift, while patrolling in the police car, Davis
spotted Groves and paged Hardy to give him Groves’s location.
Hardy killed Groves shortly after Davis went off duty and Davis
used his police radio to confirm the hit with the police officer at
the murder scene. We conclude that this evidence is sufficient to
support a finding that Davis misused or abused his official power
to access the police station, the police car, and police radio to
plan, execute, and cover up the murder. The evidence of a nexus
between that abuse and the crime is likewise sufficient. Davis’s
status as a police officer put him in the unique position to
“handle the thirty” and thus offer protection to Hardy from the
consequences of the murder. The motive for the crime arose from a
complaint lodged by Groves against Davis in his official capacity,
it was facilitated by the ability of Davis to case the area in his
police car without arousing suspicion and to offer assurance of
police protection to his accomplices. Finally, there is ample
evidence that Hardy and Causey jointly engaged with Davis in these
prohibited actions. Therefore, the Appellants’ challenges to the
2
“Thirty,” is New Orleans Police jargon for homicide,
corresponding to the Louisiana Criminal Code definition of first
degree murder, at LSA-R.S. 14:30.
14
sufficiency of the evidence on the “color of law” element fail.
4. REFUSAL TO SEVER FOR SEPARATE GUILT PHASE TRIALS
Causey and Hardy argue that their cases should have been
severed from Davis’ case for the guilt phase of the trial. Both
filed motions for severance, and have therefore preserved error on
this issue.
There is a strong preference for trying defendants who are
indicted together in joint trials. See Zafiro v. United States,
113 S. Ct. 933, 937 (1993). Severance should generally be granted
only when there “is a serious risk that a joint trial would
compromise a specific trial right of a properly joined defendant or
prevent the jury from making a reliable judgment about guilt or
innocence.” Id. at 938. The defendant seeking severance must
demonstrate a “specific and compelling prejudice that resulted in
an unfair trial and such prejudice must be of a type against which
the trial court was unable to afford protection.” United States v.
Pena Rodriguez, 110 F.3d 1120, 1128 (5th Cir.), cert. denied, 118
S. Ct. 71 (1997). The denial of severance is reviewed for abuse of
discretion. See United States v. Mulderig, 120 F.3d 534, 542 (5th
Cir. 1997), cert. denied, 118 S.Ct. 1510 (1998).
Hardy claims he was prejudiced by spillover evidence that was
not relevant to his prosecution. Specifically, Hardy claims he was
prejudiced by evidence relating to the federal investigation of
public corruption, which involved Davis’s agreement to protect drug
15
shipments for an undercover FBI agent posing as a major drug
importer. Although the district court expressly excluded any
evidence relating to the investigation, Hardy maintains that it
nonetheless made its way into evidence and deprived him of a fair
trial.
Hardy claims that Government witnesses were required to make
references to “unrelated matters,” which could only refer to the
federal investigation. In addition, Davis’ partner, Sammie
Williams testified that Williams and Davis became partners because
“it would be more convenient for us to be partners, given the other
things we were involved in.” Finally, Williams described at trial
how Williams and Davis split $16,000 cash on the day Groves was
murdered. Hardy claims that this evidence indicated that Davis was
involved in drugs and that Hardy was part of the operation. Thus,
the jury may have concluded that Davis and Hardy were involved in
illegal operations and that Hardy killed Groves to placate Davis.
That inference appears to be true. Stated differently, the record
is replete with evidence that Davis and Hardy were engaged in
illegal activities and that Hardy murdered Groves to placate Davis
and ensure continuing police protection for his drug trafficking
and related violent offenses. Indeed, that was the Government’s
16
primary theory at trial. Evidence directly tied to the
Government’s theory on motive is relevant and admissible against
Hardy. With regard to evidence of the “unrelated” federal
investigation, Hardy concedes there was no specific reference to
that investigation in the guilt phase of the trial. In addition,
the district court gave cautionary instructions requiring the jury
to consider the evidence against each defendant individually, and
not to “think of them as a group.” The district court’s refusal to
sever as to Hardy was not an abuse of discretion.
Causey sought severance from both Davis and Hardy, arguing
that he would be prejudiced by the conduct of his more culpable co-
defendants, and that the non-capital character of his prosecution
set him apart from the other defendants. The district court held
that Causey’s role as Hardy’s “right-hand man” made Causey an
integral part of the charged conspiracy. The district court also
held that Causey had not demonstrated that any compelling prejudice
would result as a consequence of the non-capital character of his
prosecution.
Causey’s first argument, that he was prejudiced by evidence of
Hardy and Davis’s drug relationship is unavailing. As with Hardy,
there was sufficient evidence tying Causey to Davis’s illegal
activities to support the district court’s refusal to sever.
Causey also complains that his position on particular members of
the venire panel and with respect to certain trial decisions was
given less weight because of the non-capital nature of his
17
prosecution. Causey claims that many of the African-American
jurors excluded because of their views on the death penalty would
have been acceptable to him. Causey further claims that he was
deprived of his rights under the equal protection clause as a
result of his joint trial with capital defendants.
The Supreme Court has rejected the argument that a non-capital
defendant cannot receive a fair trial when tried jointly with
capital defendants. See Buchanan v. Kentucky, 483 U.S. 402, 418-
419 (1987). Thus, Causey’s claim is not one of per se error. We
perceive no compromise of any specific trial right nor any danger
that the jury was prevented from reaching a reliable verdict in
Causey’s case. We therefore hold that the district court did not
abuse its discretion in denying Causey’s motion for severance.
5. PROSECUTORIAL MISCONDUCT
Davis maintains his right to a fair trial was substantially
affected by the prosecutor’s improper remarks in closing argument.
Improper comments by the prosecutor may constitute reversible error
when the defendant’s right to a fair trial is substantially
affected. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237
(5th Cir. 1990). Whether such error requires reversal depends upon
the magnitude of the prejudicial effect, the efficacy of any
cautionary instruction and the strength of the evidence of the
defendant’s guilt. United States v. Murrah, 888 F.2d 24, 28 (5th
Cir. 1989).
18
Steve Jackson testified at trial that he drove his light blue
Maxima to the murder scene. At trial, there was conflicting
evidence concerning whether the getaway car observed leaving after
the murder was champagne or light blue. Davis claims the
prosecutor improperly offered the prosecutor’s own testimony on
this issue by stating:
Well, I have a champagne-colored vehicle, which is
metallic beige, and in certain lighting conditions
at night, it looks like light blue. Trust me. The
lights are not very good in that poor Ninth Ward
neighborhood.
Davis lodged an objection to this argument, but the district court
continued without issuing a cautionary instruction.
Another issue at trial related to the police 911 tapes
recorded on the night of the murder, which had inadvertently been
recorded over by New Orleans Police. Defense counsel argued there
was something suspicious about the absence of the 911 tapes. The
prosecutor responded in argument by stating:
There was nothing on that 911 tape that would take
away the force of what you heard. It’s a
smokescreen.
Davis also objects to unflattering characterizations of the
defendants by the prosecutor. The prosecutor called Hardy “an
animal of the street.” The prosecutor referred to Davis as “a
street killer, a ruthless person.” Davis also objects to the
prosecutor’s statements about the O.J. case:
You can forget about that conspiracy theory. That
may fly on the west coast, it’s not going to fly
here, because it makes no sense.
19
Davis also objects to the following remark made in rebuttal:
[B]ut what happened on that day to that poor woman,
a citizen of the United States, should not have
happened in this country. Maybe somewhere else not
in the United States. Because what the evidence
showed what we proved to you through the very
voices of those defendants was the existence of a
police death squad in New Orleans, Louisiana, in
the state of Louisiana.
Finally, Davis objects to the following argument made in closing:
[T]oday we are in a court of law in the United
States of America, the finest judicial system in
the world. It’s time for justice. It’s time to
stop the killing, stop the carnage. There’s only
one way to get justice in the case, ladies and
gentlemen, and that’s to bring back a verdict of
guilty on each and every one of these gentlemen.
Davis did not lodge contemporaneous objections to any of the
remarks except those relating to the color of the getaway car.
This Court’s review of the latter remarks is therefore for plain
error only.
After reviewing the record, we conclude that any error in the
prosecutor’s closing argument does not require reversal due to the
overwhelming evidence of Davis’s guilt and the negligible
prejudicial affect of the remarks in the context of this case. See
Murrah, 888 F.2d at 28.
6. EVIDENTIARY RULINGS
6a. “Other offense” evidence
Davis and Hardy challenge the admission of Steve Jackson’s
testimony that defendant Hardy committed other murders, that Hardy
was a drug dealer, and that Hardy possessed many guns. Davis and
20
Causey challenge the admission of Jackson’s testimony that
defendant Causey was “in the game,” and Jackson’s explanation that
“in the game” meant selling drugs, robbing, and killing people.
Davis also challenges the admission of Williams’s testimony, which
may have allowed the jury to deduce that Davis and Williams were in
the drug business together.
Appellants argue that the introduction of these items was (1)
extrinsic evidence of other offenses, (2) probative only of the
defendants’ bad character, (3) irrelevant to any element of the
offenses, and (4) highly prejudicial. Federal Rule of Evidence
404(b) prohibits the admission of “other crimes wrongs or acts . .
. to prove the character of a person in order to show action in
conformity therewith.” However, such proof is admissible to
establish motive, opportunity, intent, preparation, plan or
knowledge. See FED.R.EVID. 404(b).
During cross-examination of Jackson, defense counsel asked
whether defendant Hardy was a friend of Jackson’s. Jackson
replied:
I’m a friend of his, but he’s not to be trusted.
He done killed seven people from the neighborhood,
seven neighbors, then killed another in the
neighborhood.
The district court admonished the witness to answer the questions
and to testify from his own knowledge, not what he knows from
someone else. Davis claims Jackson’s comment was non-responsive
and highly prejudicial.
21
Jackson also testified that he had seen Davis and Hardy
together in the presence of guns and drugs, that Causey was “in the
game” and that “in the game” meant that Causey was involved in
dealing drugs, robbing and killing people. Williams testified that
Davis had told Williams that Hardy was a drug dealer who “looked
out for” Davis and that he had heard Steve Jackson was a member of
Hardy’s drug dealing “crew.”
The Government introduced evidence of other firearms belonging
to Hardy that were seized as the result of various search warrants.
Davis argues that Davis’s and Hardy’s mutual involvement in drugs
and guns is immaterial to this case. Similarly, he argues that no
weapon other than the murder weapon was relevant to the
Government’s case.
With regard to Davis’s and Hardy’s drug and weapon
affiliation, the district court ruled prior to trial that Davis’s
and Hardy’s joint drug activities were relevant to establish why
Davis would solicit Hardy to commit the murder.
With regard to evidence of other weapons, the district court
ruled that such evidence was admissible to prove Hardy’s facility
with and access to weapons and Hardy’s practice of scattering his
weapons among his cohorts, which tended to support the Government’s
evidence that Hardy retrieved a gun from Causey prior to the
murder.
Evidence that Davis and Hardy were in involved in illegal
activities that included violent crimes and drug dealing was
22
relevant to prove both opportunity and motive under the
Government’s theory of the case, which was that Hardy was willing
to execute Groves and Davis was able to order that execution,
because of their mutual involvement in these activities, and
because of Davis’s status as a police officer. Causey was alleged
to be Hardy’s right hand man. Jackson’s testimony that Causey was
“in the game” was likewise relevant to motive and opportunity.
Davis also challenges the admission of FBI Agent Stanley
Hadden’s testimony, which twice referred to an “unrelated
investigation” of public corruption that involved obtaining taps on
the cellular phones of Davis and his partner Sammie Williams.
The district court excluded the details of the federal
investigation into Davis’s drug trafficking operations as
irrelevant to the issues to be proven at trial. Nonetheless, FBI
agent Stanley Hadden testified that the taped telephone
conversations were obtained as the result of an “unrelated” federal
investigation. Defendants claim they suffered unfair prejudice
requiring a new trial as a result.
This testimony was presented to authenticate the tapes, which
were properly admitted. Any resulting prejudice from the non-
specific references to the federal investigation complained of by
defendants was insufficient to warrant reversal.
Defendants are not entitled to relief on this ground of error.
6b. The gun barrel
23
Defendants complain that admission into evidence of the gun
barrel recovered from the Industrial Canal was error.
At trial, Steve Jackson, driver of the getaway car, testified
that Hardy threw the barrel of the murder weapon out the window of
the car and into the Industrial Canal near the Florida Avenue
Bridge.
Jackson did not tell the Government about the barrel being
removed and thrown off the bridge until almost one year after he
was originally questioned.3 Shortly after Jackson told the
Government, a Government diver recovered a barrel compatible with
the 9mm weapon recovered from Causey’s house and believed to be the
murder weapon. Defendants argue that the barrel was not properly
authenticated. Defendants note that the barrel was too corroded to
be attached to the alleged murder weapon and that tests on the
alleged murder weapon were inconclusive.
The evidence is sufficient to support an inference that the
recovered barrel was on the murder weapon when it was used to kill
Kim Groves. At trial, a firearms expert testified that the barrel
was compatible with the alleged murder weapon. An FBI expert also
testified that the level of corrosion on the barrel was consistent
with it being in the water for thirteen months, the period of time
3
Defendants claim that Jackson had an incentive to lie to
help himself on pending charges in another matter. The district
court correctly found that this point goes to weight rather than
admissibility.
24
between the murder and its recovery.4 Further, the barrel and the
circumstances of its recovery support Jackson’s testimony about the
events of the crime. See United States v. Ramey, 414 F.2d 792, 794
(5th Cir. 1969)(relying on facts surrounding the discovery of a
pistol to support an inference that it was used to perpetrate the
robbery at issue in that case).
Defendants are not entitled to relief on this ground.
6c. “Rock-a-bye, baby” stipulation
Causey complains that the district court accepted a
stipulation by the Government and defendants Davis and Hardy that
“rock-a-bye, baby” was a slang expression understood to refer to
killing someone, as in “it will be rock-a-bye, baby for you.” The
expression was drawn from the movie “New Jack City.” In that
movie, a female drug dealer used the expression before shooting
people.
Causey objected that the stipulation was over broad and should
be changed to reflect that “rock-a-bye, baby” refers to the killing
of a drug dealer. The district court overruled Causey’s objection
and accepted the stipulation on the basis that Davis and Hardy were
the only ones who used the expression in the relevant telephone
conversations.
Davis used the expression “rock-a-bye” when gleefully
4
The expert testified that the barrel could have been in the
water for anywhere from 6 months to 2 years.
25
confirming with Hardy that Groves was dead. Davis said, “Yeah,
yeah, yeah, rock, rock-a-bye.” Davis also used the phrase to tell
Hardy that if Nathan Norwood followed up on the IAD complaint
against Davis, it would be “rock-a-bye, baby” for him.
The district court’s decision to accept a stipulation from
Davis and Hardy, to the exclusion of Causey, as to the meaning of
the phrase “rock-a-bye,” baby” was not error. Causey is not
entitled to relief on this ground.
7. CAUSEY’S SENTENCING
Causey argues that the district court misapplied the
sentencing guidelines by calculating his sentence using murder as
the underlying offense notwithstanding the fact that he was not
convicted on Count 3, which alleged witness tampering accomplished
by the murder of Groves. We review the district court’s legal
interpretation and application of the sentencing guidelines de
novo, and its factual findings in support of the sentence for clear
error. United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
Causey’s sentence was calculated using U.S.S.G. §2H1.1, which
is the appropriate guideline for Causey’s convictions under
18 U.S.C. §§ 241 and 242. Under § 2H1.1, the base offense level is
the greatest of (1) the offense level applicable to any underlying
offense, or (2) 12, 10 or 6, depending upon the circumstances of
the offense. The PSR derived the base offense level from U.S.S.G.
§ 2A1.1(a), the guideline applicable to First Degree premeditated
26
murder. That guideline provides a base offense level of 43, which
requires a mandatory term of life imprisonment. See also U.S.S.G.
§ 2X1.1 (establishing the base offense level for conspiracy as that
of the substantive offense). Causey objected that he had not been
convicted of murder, but the district court adopted the PSR and
sentenced Causey accordingly.
Application note 1 to §2H1.1 provides that “offense level
applicable to any underlying offense” means “the offense guideline
applicable to any conduct established by the offense of conviction
that constitutes an offense under federal, state, or local law.”
(emphasis added). The conduct established by the offenses of
conviction -- conspiring to murder and participating in the murder
of Groves -- was appropriately employed by the district court in
determining Causey’s base offense level of 43. See United States
v. Woodlee, 136 F.3d 1399 (10th Cir. 1998). The jury’s failure to
reach a verdict on Count 3 has no bearing on this determination.
Causey mischaracterizes Count 3 as the “murder” count and as the
“underlying offense” count. In fact, Count 3 was the witness
tampering count, while Counts 1 and 2 charged violation of civil
rights under color of law. All three Counts involved the
underlying offense of murder. We therefore affirm the district
court’s application of the sentencing guidelines to Causey.
8. TAMPERING WITH A WITNESS
Davis and Hardy were convicted on Count 3 for violation of 18
27
U.S.C. § 1512(a)(1)(C), which provides, in pertinent part:
Whoever kills or attempts to kill another person, with
intent to --
(C) prevent the communication by any person to a law
enforcement officer or judge of the United States of
information relating to the commission or possible
commission of a Federal offense . . . shall be punished
as provided in paragraph (2).
(2) The punishment for an offense under this subsection
is --
(a) in the case of murder . . . the death penalty or
imprisonment for life . . . .
18 U.S.C. § 1512(a)(1)(C) & (a)(2)(A). “Law enforcement officer”
as used in § 1512 “means an officer or employee of the Federal
Government, or a person authorized to act for or on behalf of the
Federal Government or serving the Federal Government as an adviser
or consultant . . . authorized under law to engage in or supervise
the prevention, detection, investigation, or prosecution of an
offense.” 18 U.S.C. § 1515(a)(4). However, § 1512 also provides:
In a prosecution under this section, no state of mind
need be proved with respect to the circumstance . . .
that the judge is a judge of the United States, or that
the law enforcement officer is an officer or employee of
the Federal Government, or a person authorized to act for
or on behalf of the Federal Government, or serving the
Federal Government as a adviser or consultant.
18 U.S.C. § 1512(f)(2).
Defendants Davis and Hardy argue that the evidence is
insufficient to support their convictions on Count 3 of the
indictment because the Government failed to prove the required
federal nexus of potential communication. Defendants argue that
conviction under § 1512(a)(1)(C) requires proof of the following
28
elements: (1) that defendant killed a person; (2) that defendant
was motivated by a desire to prevent communication between any
person and law enforcement authorities about the commission of an
offense; (3) that the offense was, in fact, a federal offense; and
(4) that the defendant believed the person might communicate with
federal authorities.
Based on the plain language of § 1512(f)(2), the fourth
element identified by defendants is incorrect -- there is no
requirement that the Government prove that the defendants believed
the law enforcement officials to be federal. Further, defendants’
argument that Williams, rather than Davis, committed the act of
police brutality alleged by Groves’s complaint is irrelevant.
Prosecution under § 1512 is not limited to defendants who are
guilty of the underlying federal offense which the victim reported
or was expected to report.
Further, defendants argue that Groves’s internal complaint to
local police had not been reported to federal law enforcement and
was not yet a ripe civil rights complaint as the Government
characterized it. However, this lack of “ripeness” is not
controlling. “An official proceeding need not be pending or about
to be instituted at the time of the offense.” 18 U.S.C. §
1512(e)(1); see also United States v. Galvan, 949 F.2d 777, 783
(5th Cir. 1991)(fact that Government informer was no longer
communicating with the Government at time of offense did not render
29
prosecution under § 1512(a)(1)(C) inappropriate). Nonetheless, we
are convinced that the evidence was not sufficient to establish the
federal nexus required by § 1512.
The evidence was clearly sufficient to allow the jury to
conclude (1) that defendants killed Groves; (2) that defendants
were motivated by a desire to prevent communication between Groves
and law enforcement authorities about the alleged police brutality
offense; and (3) that the offense which was the subject of Groves’s
complaint -- a civil rights violation -- could, in fact, be charged
as a federal offense.
What remains is to determine what conclusions the evidence
will support concerning whether the communication defendants sought
to prevent would in fact be to federal law enforcement officers.
This circuit has not previously addressed an analogous situation.
However, the Third Circuit in United States v. Bell, 113 F.3d 1345(3rd Cir. 1997), has considered this issue, stating:
In view of the statute’s clear command that the
government need not prove any “state of mind” on the part
of the defendant with respect to the federal character of
the proceeding or officer, 18 U.S.C. § 1512(f), we do not
read [the statute] as requiring proof that the defendant
believed the victim might communicate with law
enforcement officers whom the defendant knew or believed
to be federal officers. Rather, we read this sentence as
recognizing that what the statute mandates is proof that
the officers with whom the defendant believed the victim
might communicate would in fact be federal officers.
Bell, 113 F.3d at 1349 (emphasis added). This element “may be
inferred by the jury from the fact that the offense was federal in
30
nature, plus appropriate evidence.” Id. at 1349.
The Eleventh Circuit, interpreting the similarly worded §
1512(b)(3)5 has held, “all that was required [to establish a] . .
. violation of § 1512(b)(3) was the possibility or likelihood that
[the defendants'] false and misleading information would be
transferred to federal authorities irrespective of the governmental
authority represented by the initial investigators.” United States
v. Veal, 153 F.3d 1233, 1251-52 (5th Cir. 1998). The Eleventh
Circuit cited United States v. Galvan, 949 F.2d 777, 783 (5th Cir.
1991)(“[T]he statute focuses on the defendant's intent: whether she
thought she might be preventing [the witness's] future
communication of information”), from this court, as well as other
Circuits' interpretations of § 1512(a)(1)(C), as authority for
their interpretation of § 1512(b)(3). We do not find the Eleventh
Circuit's reasoning persuasive in resolving the question before us
5
18 U.S.C. § 1512(b)(3) provides:
(b) Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or attempts
to do so, or engages in misleading conduct toward another
person, with intent to –
(3) hinder, delay, or prevent the communication to a law
enforcement officer or judge of the United States of
information relating to the commission or possible
commission of a Federal offense or a violation of
conditions of probation, parole, or release pending
judicial proceedings;
shall be fined under this title or imprisoned not more than ten
years, or both.
31
in this case. Rather, as dictated by Galvan, we parse the record
focusing on the defendants' intent.
The evidence reveals that Davis's specific intent was to
short-circuit the IAD investigation and to send the IAD a message
to leave him alone in his misuse of police power. There is no
evidence that the likelihood or possibility that the murder might
impact a future federal investigation played a part in this crime.
The evidence was sufficient to establish that Groves’s police
brutality complaint concerned a federal crime and that the
defendants intended to interfere with Groves’s pursuit of that
complaint. However, prior to her death, the only agency to which
Groves had complained was the New Orleans Police Department. There
is nothing in this record which would support a jury finding that
any of the persons to whom Groves complained were federal officers.
Likewise, there is nothing in this record which would support a
jury finding that Groves had any intention of communicating with
any federal law enforcement officer prior to her death. Finally,
there is no evidence in the record that would support an inference
that Davis intended to prevent Groves from pursuing her complaint
beyond the New Orleans Police Department IAD and communicating with
authorities who were in fact federal officers. We therefore
reverse Hardy’s and Davis’s convictions on Count 3.
9. CAPITAL SENTENCING ISSUES - DAVIS AND HARDY
Davis and Hardy were sentenced to death pursuant to the
32
provisions of the Federal Death Penalty Act of 1994, 18
U.S.C. §§ 3591 - 3597 (FDPA). The Government provided notice of
its intent to seek the death penalty, and notice of the aggravating
factors upon which it intended to rely, as required in § 3593(a).
The jury did not make separate recommendations concerning the
appropriate penalties for each count of conviction. Because it is
impossible to say that the jury’s penalty phase recommendations of
the death penalty were not influenced by the fact that Davis and
Hardy had received three death eligible convictions, rather than
two, we must vacate the death sentences and remand for new
sentencing hearings pursuant to 18 U.S.C. § 3593(b)(2)(D)(providing
that the penalty phase be conducted before a jury impaneled
specifically for the purpose of the sentencing hearing if, after
initial imposition of a sentence, reconsideration of the sentence
is necessary). Our remand of Hardy’s and Davis’s cases for a new
sentencing hearing moots the remaining issues raised in their
appeals alleging error in their initial penalty phase proceedings.
10. CONCLUSION
For the foregoing reasons, we affirm Causey’s convictions and
sentences; affirm Hardy’s and Davis’s convictions as to Counts 1
and 2; reverse Hardy’s and Davis’s convictions as to Count 3;
vacate Hardy’s and Davis’s death sentences; and remand Hardy’s and
Davis’s cases for resentencing.
AFFIRMED in part, REVERSED in part, VACATED AND REMANDED in
33
part.
ENDRECORD
34
DeMOSS, Circuit Judge, concurring in part and dissenting in part:
I wholeheartedly concur in the majority’s conclusion that the
evidence was insufficient to establish the federal nexus required
to support Davis’ and Hardy’s convictions on count 3, which alleges
tampering with a witness in order to prevent communication with a
federal law enforcement officer. I also concur with the majority’s
determination that Davis’ and Hardy’s death sentences must be set
aside and a new penalty hearing conducted because it is not
possible to separate the jury’s death penalty determination as to
the various counts in the indictment. Finally, I concur with the
majority’s treatment of various other issues in parts 2, 5, 6 and
7 of the majority opinion.
I disagree, however, and therefore must dissent from the
majority’s decision to affirm Davis’ and Hardy’s convictions on
counts 1 and 2, which alleges conspiracy to deprive and deprivation
of Kim Groves’ civil rights in violation of 18 U.S.C. § 241 and
§ 242, on the theory that those defendants’ actions against Groves
constituted conduct under color of state law. I also dissent from
the majority’s spartan and conclusory treatment of Causey’s
compelling argument that the trial of the noncapital charges
against him should have been severed from the trial of the capital
charges against Davis and Hardy.
35
Murder Under “Color of Law”
Conduct under color of law, or its equivalent state action, is
an essential element for conviction under 18 U.S.C. §§ 241 and 242,
and provides the federal nexus required to turn a garden-variety
state law murder into a federal offense punishable by the death
penalty. The majority opinion impermissibly and inadvisably waters
down this historical and statutory requirement by holding that
state action existed in this case because an “air of official
authority pervaded the entire incident.” This ethereal and poorly
defined test subverts the color of law inquiry, traditionally
rooted in some assertion of actual or apparent official authority,
and transforms every abuse of official position into conduct
attributable to the state.
As the majority concedes, the relevant principles are to be
derived in large part from a trilogy of Supreme Court cases. In
United States v. Classic, 61 S. Ct. 1031 (1941), the Supreme Court
addressed the color of law requirement under the statutory
predecessors to §§ 241 and 242. Classic held that election
officials who altered ballots were acting under color of law
because the acts were committed in the course of their performance
of official duties. Id. at 1042-43. The Court held that “[m]isuse
of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law,
is action taken ‘under color of’ state law.” Id. at 1043.
36
Four years later, in Screws v. United States, 65 S. Ct. 1031(1945), the Supreme Court found action under color of law in
another criminal case involving the predecessor to § 242. In
Screws the defendants, a sheriff, a policeman, and a special
deputy, beat a young man to death in the course of effecting an
arrest. The Court found action under color of law because the
officers were acting pursuant to their “duty under Georgia law to
make the arrest effective.” Id. at 1038. The Court took special
pains to note that the criminal statutes must be construed in a
manner that “respect[s] the proper balance between the States and
the federal government in law enforcement.” Id. at 1039.
Finally, in United States v. Price, 86 S. Ct. 1152 (1966), the
Supreme Court directly examined the color of law requirement
embedded in §§ 241 and 242. Price involved the brutal murder of
three civil rights activists at the hands of a Mississippi sheriff,
two other officers and some private citizens. The civil rights
activists had been arrested and held prisoner in the county jail.
Law enforcement authorities subsequently pretended to release the
men in the middle of the night, having arranged that they would be
ambushed on the road. The men were intercepted on the road out of
town and taken to a remote place where at least eighteen people
participated in their murder. The Court found action under color
of law, observing that the conduct “was made possible by state
detention and calculated release of the prisoners by an officer of
37
the State.” Id. at 1157.
The Classic/Screws/Price trilogy illustrates the principle
embraced by our Court that a defendant is not acting under “color
of law” when he or she is “pursuing private aims and not acting by
virtue of state authority.” Harris v. Rhodes, 94 F.3d 196, 197
(5th Cir. 1996) (quoting United States v. Tarpley, 945 F.2d 806,
809 (5th Cir. 1991)); see also Price, 86 S. Ct. at 1157 n.7. The
Court has held that such defendants are not acting under color of
law “purely because they are state officers.” Harris, 94 F.3d at
197 (quoting Tarpley, 945 F.2d at 808). To the contrary, conduct
is not committed under color of law unless the conduct includes
some assertion of actual or apparent authority granted by the
state. See Price, 86 S. Ct. at 1157; Screws, 65 S. Ct. at 1039;
Classic, 61 S. Ct. at 1042-43; see also Tarpley, 945 F.2d at 809(“Tarpley did more than simply use his service weapon and identify
himself as a police officer. At several points during his assault
of Vestal, he claimed to have special authority for his actions by
virtue of his official status.”).
That principle is aptly illustrated by the Supreme Court
cases. In Classic, Louisiana election officials charged with
altering and falsely counting ballots cast in a primary election
were acting under color of law because the conduct was “committed
in the course of their performance of duties under the Louisiana
statute requiring them to count the ballots, to record the result
38
of the count, and to certify the result of the election." Classic,
61 S. Ct. at 1042-43 (internal quotations omitted). Thus, it is
clear that the defendants in Classic committed the offense while in
the course of performing their official duties. They abused that
position by exceeding the scope of the authority granted by the
state. But it was more than the mere abuse of their position that
caused the Supreme Court to hold that the defendants’ conduct was
committed under color of state law. The Court’s analysis placed
equal emphasis on the fact that the defendants’ conduct would not
have been possible but for the state’s grant of access to and
authority over the election ballots that were fraudulently altered
or falsely counted. Id. at 1043-44.
The majority relies heavily upon Davis’ use of his police
pager, radio, and patrol car to facilitate the offense. But these
items did no more than just that. There is nothing about these
items that rendered the offense possible and nothing about the
absence of these items that would have rendered the offense
impossible. This is because both Davis’ malevolent plan to execute
Groves and his conduct to set that plan in motion were separate and
apart from his status as a police officer. Davis’ reliance upon
the accouterments of his office, such as his use of the police
radio to confirm Groves’ murder, were matters of convenience or
expediency, rather than matters of necessity. I conclude that the
conduct in this case presents nothing more than abuse of position,
39
which Classic teaches is insufficient standing alone to establish
conduct fairly attributable to the state as state action.
In Screws, Georgia law enforcement officials who beat a young
man to death in the course of an arrest were acting under color of
state law because they were acting pursuant to "their duty under
Georgia law to make the arrest effective." Screws, 65 S. Ct. at
1038. The color of law inquiry in Screws, like Classic, focuses
upon the fact that the defendants had embarked upon the execution
of some official duty when the breach of public trust or authority
occurred. Id. at 1039 (“Classic is, therefore, indistinguishable
from this case so far as ‘under color of’ state law is concerned.
In each officers of the State were performing official duties; in
each the power which they were authorized to exercise was
misused.”).
Applying Classic and Screws to the case at hand, it is clear
that Davis had not been delegated any authority or discretion
though official channels to vindicate his personal animus against
Groves by killing her. Indeed, such conduct is affirmatively
prohibited by state law. See Doe v. Taylor Indep. Sch. Dist., 15
F.3d 443, 481-86 (5th Cir. 1994) (en banc) (Garza, J., concurring
in part and dissenting in part) (citing Barney, 24 S. Ct. 502(1904) for proposition that “state action does not exist when the
act complained of was not only not authorized, but was forbidden by
state legislation” (internal quotations and alterations omitted)).
40
Davis’ fortuitous and dispensable use of the equipment issued to
him was simply an abuse of his position, rather than abuse in the
course of some official duty.
In Price, Mississippi law enforcement officers asserted their
official capacity to first detain, and then arrange a calculated
release of, their intended victims for the purpose of assaulting,
and ultimately killing, their victims. Price, 86 S. Ct. at 1155.
Price, which creates the possibility that ordinary citizens may act
in concert with state officials under color of state law, hinges
upon the defendants’ assertion of actual or apparent authority to
arrest the victims, a duty delegated to the relevant law
enforcement authorities as a matter of state law. Id. at 1156-57.
Although state officials pretended to relinquish control over the
victims in Price, the defendants/law enforcement officers in that
case never actually relinquished control, but instead delivered the
victims unto a brutal demise at the hands of other law enforcement
officers and their co-conspirators. Thus, Price embodies those
principles inherent in Classic and Screws. The incident would not
have been possible but for the defendants’ controlled release of
their intended victims from official police custody, and the
incident was the direct result of the defendants’ assertion of
actual or apparent authority to arrest.
This case involves none of those factors. There is no but for
relationship between Davis’ status as a police officer and Groves’
41
murder. Davis’ conduct was not committed in the course of any
ordinary police duty.6 Moreover, neither Davis nor any other
defendant asserted any actual or apparent authority granted by the
state as an initial or final justification for Groves’ murder.
Applying the principles established in Classic, Screws and Price,7
I find the theory that the defendants (a rogue police officer, a
drug dealer, and the drug dealer’s side kick) were in this case
engaged in state action under color of state law to be nothing
short of ridiculous.
6
The majority finds great significance in Davis’ statement that
he could get Hardy to murder Groves and then handle the “thirty.”
But Davis’ speculation to his partner was never borne out. Davis
did not, in fact, handle the “thirty,” and there is no evidence in
the record that he in fact would have had any authority to do so.
7
Both the majority and concurring opinions purport to rely upon
Monroe v. Pape, 81 S. Ct. 473 (1961) as breaking new ground for
purposes of determining when conduct is committed under color of
law. But Monroe does not purport to adopt any new standards
relevant to the inquiry. To the contrary, Monroe merely reaffirms
the principles previously announced in Classic and Screws. See
Monroe, 81 S. Ct. at 484 (“We conclude that the meaning given
‘color of’ law in the Classic case and in the Screws and Williams
case was the correct one; and we adhere to it.”); see also Williams
v. United States, 71 S. Ct. 576, 577 (1951) (“The question in this
case is whether a special police officer who in his official
capacity subjects a person suspected of crime to force and violence
in order to obtain a confession may be prosecuted” for conduct
under color of law.); id. at 578 (noting that the victim was
interrogated pursuant to “an investigation conducted under the
aegis of the State”); id. (noting that the defendant “had a
semblance of policeman's power from Florida . . . [;] acted under
authority of Florida law; and . . . was asserting the authority
granted him and not acting in the role of a private person”).
Monroe, which presented the question of whether police exceeded
their authority in the scope of an official investigation, cannot
faithfully be cited as extending or broadening the color of law
concept as defined in earlier Supreme Court cases.
42
Our Circuit authority is consistent. In United States v.
Tarpley, 945 F.2d 806, 808 & n.2 (5th Cir. 1991) a jealous husband
lured his wife’s lover, Vestal, to the defendant’s home. When
Vestal arrived, Tarpley beat him with “sap gloves” filled with lead
and stuck his service revolver into Vestal’s mouth, telling Vestal
that “he was a Sergeant on the police department, and that he would
and should kill Vestal, and that he could get away with it because
he was a cop.” Id. at 808. Defendant continued beating Vestal and
then instructed his wife to call another police officer to the
house. When that officer arrived, the officer confirmed to Vestal
that the defendant had shot people in the past. Id. The Court
found action under color of law, in large part because Tarpley had
claimed to have special power by virtue of being a police officer
to beat, or even kill Vestal, with impunity. Id. (Tarpley told
Vestal: “I‘ll kill you. I’m a cop. I can.”). Similarly, in Bennett
v. Pippin, 74 F.3d 578, 589 (5th Cir. 1996), an analogous § 1983
case, a sheriff raped a witness whom he had just interviewed. When
his victim resisted his advances, the sheriff told her "I can do
what I want, I'm the Sheriff." Id. The Court found action under
color of law because the Sheriff's actions were an abuse of power
uniquely held by virtue of the Sheriff’s position, and because “the
explicit invocation of governmental authority constituted a ‘real
nexus’ between the duties of Sheriff and the rape.” Id. (citing
Taylor Indep. Sch. Dist., 15 F.3d at 452 n.4). In sum, Supreme
43
Court and Fifth Circuit precedent are consistent -- when the
defendant is acting pursuant to state granted authority or an
assertion of state granted authority, but exceeds or abuses that
authority, the defendant is acting under color of law.
For example, the conduct of a bad law enforcement officer in
the process of arresting someone or interviewing a witness, or
even, under current precedent, the misconduct of a public school
teacher who places a child's physical well being in grave danger,
see Taylor Indep. Sch. Dist., 15 F.3d 433, may constitute conduct
under color of state law.8 When, however, the defendant is acting
in an area that is completely apart from and derives no “color”
from the state’s affirmative grant of authority or discretion to
8
Whatever color of law there is in this case must be derived
from the conduct of Davis, the New Orleans police officer. It is
true that even a patrolman at the bottom of the police totem pole,
like Davis in this case, may exercise certain powers and duties
which are derivative of his authority as a police officer and the
exercise of these powers is clearly under "color of law." A
patrolman may enforce the traffic laws of the city and issue a
ticket or citation to a citizen whom he observes in violation of
such laws; but Davis never issued any kind of citation or ticket to
Groves in this case. A patrolman may make an investigative stop of
a citizen if he has a reasonable suspicion that the citizen may be
engaging in some sort of criminal activity; but Davis never made an
investigative stop of Groves in this case. A patrolman may serve
and execute a warrant for arrest upon a citizen; but Davis never
executed any warrant for arrest on Groves in this case. A
patrolman may arrest without a warrant and take into custody any
citizen whom he observes to be committing a crime; but Davis never
purported to arrest Groves and never had any custody of any kind of
Groves. A patrolman may direct traffic, order individual citizens
to stay behind police barricades at an accident or crime scene, and
order individual citizens to leave or vacate certain premises on
the grounds of public safety; but there is no evidence in this case
that Davis ever exercised any such authority as to Groves.
44
the official, the conduct is not committed under “color of law.”
Our decision in Tarpley is the only binding case that even
potentially deviates from that pattern, and that case is
distinguishable (and was distinguished by the panel hearing the
case) by the defendant’s express invocation of his police
authority.
Our error in diminishing the test for conduct under color of
law is compounded in this case because the majority has borrowed,
without apology, elaboration, or explanation, from the host of §
241 and § 242 cases that involve a relatively minor penalty. Title
18 U.S.C. § 241 and § 242 were passed to address the residual
effects of slavery. For most of the significant history of these
civil and criminal provisions, the maximum penalty to be assessed
was a fine and a term of imprisonment not to exceed ten years.
While Congress increased the potential penalty under these statutes
in the 1960's, it was not until September 1994 that the death
penalty became an available sanction, and this case appears to be
the first case in which the death penalty has been imposed upon
defendants charged with a deprivation of civil rights in violation
of these Civil War reconstruction statutes. Surely where the
ultimate penalty of death is at issue, for the crime of murder
which is traditionally punished under state law, we should be even
more diligent in requiring that the evidence clearly support the
hypothesis that the offender’s conduct was colored by some grant of
45
state authority. Surely we should not be willing to torture the
meaning ascribed by the Supreme Court to the requirement that
conduct be committed under color of state law by adopting, sheared
of its factual context, a new legal standard requiring only that an
air of official authority pervade the incident, particularly when
that standard is based upon a single descriptive phrase in this
Court’s disposition in Tarpley.
The facts of this case are chilling. Davis and Hardy deserve
the death penalty for their part in the premeditated murder of Kim
Groves. But we should not dilute or obscure the statutory
requirement that conduct be committed under color of state law just
to save these federal convictions. The Supreme Court has cautioned
that statutes requiring conduct under color of law “should be
construed so as to respect the proper balance between the States
and the federal government in law enforcement.” Screws, 65 S. Ct.
at 1039. If this concept of federalism is to have any meaning at
all, then the State of Louisiana is the proper governmental entity
to proscribe and punish the murderers in this case. As the Supreme
Court said in Screws:
Our national government is one of delegated powers
alone. Under our federal system the administration
of criminal justice rests with the States except as
Congress, acting within the scope of those
delegated powers, has created offenses against the
United States. As stated in United States v.
Cruikshank, 92 U.S. 542, 553, 554, 23 L.Ed. 588[(1875)], “It is no more the duty or within the
power of the United States to punish for a
conspiracy to falsely imprison or murder within a
46
State, than it would be to punish for false
imprisonment or murder itself.” It is only state
action of a “particular character” that is
prohibited by the Fourteenth Amendment and against
which the Amendment authorizes Congress to afford
relief. Thus Congress in § 20 of the Criminal Code
did not undertake to make all torts of state
officials federal crimes. It brought within § 20
only specified acts done “under color” of law and
then only those acts which deprived a person of
some right secured by the Constitution or laws of
the United States.
Id. (internal citations omitted); see also id. at 1037. I would
hold that the government failed to satisfy its burden of
establishing a sufficient federal nexus with respect to counts 1
and 2 against all defendants. I would therefore vacate the
defendants’ federal convictions for violation of 18 U.S.C. §§ 241and 242 and remand the case to the district court for dismissal of
the indictments. Under our federal system, the State of Louisiana
is the only right and proper forum for the trial and punishment of
these defendants.
47
CAUSEY’S TRIAL WITH CAPITAL DEFENDANTS
I also dissent from that portion of part 4 of the majority
opinion that affirms the district court’s refusal to sever the
trial of the noncapital charges against Causey from the trial of
the capital charges against Davis and Hardy.
The majority applies what appears to be an almost per se rule
that the trial of a capital defendant with a noncapital defendant
will never raise concerns sufficient to justify severance. The
majority supports this remarkable position with Buchanan v.
Kentucky, 107 S. Ct. 2906 (1987). But Buchanan involved Supreme
Court review of a state law conviction. Moreover, the Supreme
Court made express note of the fact that the noncapital defendant
did not seek severance in that case. Id. at 2909. Rather,
Buchanan involved only a state prisoner’s constitutional claim that
his joint trial with capital co-defendants violated his Sixth
Amendment right to an impartial jury drawn from a fair cross
section of the community. Id. at 2908.
This case is easily distinguishable. First, this is a direct
appeal from federal convictions. Indeed, this is the first
reported decision in which a noncapital defendant was tried with
multiple capital defendants in federal court under the procedures
set forth in the Federal Death Penalty Act, 18 U.S.C. § 3591-3598.
Thus, no federal appellate court has ever considered, as a matter
of direct appeal, whether the trial of a noncapital defendant with
48
multiple capital defendants under the Federal Death Penalty Act may
infringe upon the trial rights of the noncapital defendant.
Further, the Federal Death Penalty Act, which specified a number of
the procedures and substantive issues material to Davis’ and
Hardy’s capital trial, was not passed until 1994, long after the
decision in Buchanan, and only one month before the offense at
issue in this case. Even if Buchanan is binding as to the
relatively modest principle that the trial of noncapital defendants
with capital defendants is not per se error, that principle does
nothing to preclude the possibility of error based upon the
statutory structure of the Federal Death Penalty Act or the facts
of this case. I think our review should acknowledge and meet head
on the particular issues raised by application of this new federal
sentencing scheme with its many requirements, in this trial
involving a noncapital defendant.
Second, Causey sought and was denied severance. Unlike the
relatively limited issue in Buchanan, Causey’s challenge to his
federal conviction on direct appeal calls into question whether he
was prejudiced with respect to a number of his statutory and
constitutional trial rights. Indeed, the record in this particular
case establishes that many of the federal district court’s
decisions in this matter, from jury selection through jury
submission, were driven by the fact that both Davis and Hardy faced
the death penalty. Because I believe that these decisions
49
compromised Causey’s right to a fair trial, I would hold that the
district court’s refusal to sever noncapital defendant Causey’s
trial from the trial of capital defendants Davis and Hardy
constituted an abuse of the court’s discretion on the facts of this
case.
I recognize that there is a preference for jointly trying
defendants who have been jointly named in the same indictment. See
Zafiro v. United States, 113 S. Ct. 933, 937 (1993); see also FED.
R. CRIM. P. 8(b). But severance is appropriate when a joint trial
will compromise a specific trial right of one of the defendants or
prevent the jury from making a reliable judgment about the guilt or
innocence of one of the defendants. See Zafiro, 113 S. Ct. at 938;
see also FED. R. CRIM. P. 14 (permitting severance when joint trial
would prejudice a party). Causey contends that his statutory and
constitutional rights to a speedy trial, his right to participate
fully and fairly in the jury selection process, and his right to be
free from the effect of unduly prejudicial and irrelevant spillover
evidence with no relevance to his prosecution, were violated in
this particular case by the district court’s refusal to sever his
trial. The majority opinion states, in a single conclusory
sentence, that Causey failed to make the showing of strong
prejudice required to justify severance. I disagree. To the
contrary, this case is rife with the type of prejudice that should
cause us to hold that a noncapital defendant like Causey should not
50
be tried together with capital defendants in federal court.
Causey’s joint trial with capital co-defendants operated to
deprive him of his statutory and constitutional right to a speedy
trial. Title 18 U.S.C. § 3161(c)(1) provides the general rule that
trial should occur within seventy days of indictment or
arraignment. Causey was indicted and detained on the charges in
this case in December 1994. Causey was not tried on those charges
until April 1996, a delay of sixteen months. Three of the four
continuances sought in Causey’s case were expressly tied to the
fact that the government was seeking the death penalty against
Davis and Hardy. The last two continuances, which together
engendered a delay of four months, were granted over Causey’s
express objection that his speedy trial rights were being
compromised and that severance was required. While the speedy
trial statute permits “a reasonable period of delay” attributable
to co-defendants, see 18 U.S.C. § 3161(h)(7), I do not consider the
extended period attributable to Davis’ and Hardy’ capital status
reasonable in this case. Whatever judicial expedience might
justify the joint trial of capital and noncapital defendants, that
expedience is severely undermined when the capital status of one
defendant causes a delay of more than one year in the trial of a
noncapital defendant.
Causey’s joint trial with capital co-defendants compromised
his right to participate fully and fairly in the selection of his
51
jury. The district court initially allowed each side twenty-six
peremptory challenges. Causey complained in the district court,
and urges again on appeal, that his noncapital status was used,
first by his co-defendants and then by the district court, to deny
his right to participate equally in the jury selection process.
When Causey raised this complaint, Causey maintains, and the
government does not dispute, that the district court informed him
that, if forced to intervene, the district court would allow Causey
only six peremptory challenges, while permitting each of his
capital co-defendants ten peremptory challenges each. There does
not appear to be any sound justification for limiting Causey’s
participation in the process of jury selection in this manner.
Causey’s joint trial with capital co-defendants also raises
important questions about the fundamental fairness of subjecting a
noncapital defendant to the process required to assemble a death
qualified jury in a capital case. The process of selecting a jury
in a capital case is, and should necessarily be, different from the
process involved in selecting the jury in a noncapital case. To
the extent that the prosecution exercises its rights to qualify all
jurors on their ability to assess the death penalty, there will
inevitably be individuals excluded on those grounds in a capital
case who would not have been excluded in a noncapital case.
Consequently, if you try a noncapital defendant with a capital
defendant the government will be permitted to exclude jurors for
cause on grounds which it could not use as a grounds for exclusion
52
if the noncapital defendant was being tried separately. Surely if
a noncapital defendant were being tried separately, the government
could not exclude jurors for cause on the grounds of their
opposition to the death penalty since that would be a matter
completely irrelevant to the decision in that particular case.
Likewise, in a joint trial involving capital and noncapital
defendants, the capital defendants can exercise peremptory
challenges against prospective jurors who express sentiments in
favor of the death penalty. These same jurors may be acceptable,
or even desirable, to a noncapital defendant for reasons other than
their being prepared to assess the death penalty. The noncapital
defendant, therefore, gets whipsawed between the state’s objection
for cause and the capital defendant’s peremptory challenge into
having a jury composed of individuals who are entirely different
from those who would be selected if the noncapital defendant was
being tried without capital defendants.
This is precisely what Causey says happened in this case.
Given the capital charges against Davis and Hardy, the district
court permitted the parties to circulate an extensive questionnaire
to potential jurors prior to the time formal voir dire began.
Those questionnaires provide a great deal of insight into the
potential jurors’ views as to the death penalty and other issues.
The record reflects that Causey objected both to government strikes
eliminating potential jurors expressing sentiment against the death
penalty, as well as to his co-defendants’ strikes eliminating
53
jurors expressing sentiment in favor of the death penalty. Causey
asserts that many of these jurors would have been acceptable, or
even desirable, to him. For example, Causey claims that some of
the jurors eliminated by the government for expressing anti-death
penalty sentiment also expressed a skepticism about government
testimony induced by a plea bargain. Causey also claims that his
co-defendants eliminated certain African-American jurors who were
perceived to be leaning toward the death penalty. Viewed as whole,
the record reflects that Causey’s right to participate fully and
fairly in the jury selection process was compromised by the capital
nature of the charges brought against Davis and Hardy.
Another problem that raises its ugly head is the contention
that a death qualified or capital jury is necessarily more
conviction prone. I recognize that several courts, including this
one, have expressed reservations about the scientific evidence
supporting the proposition that a death qualified jury is
necessarily more conviction prone. See, e.g., Lockhart v. McCree,
106 S. Ct. 1758, 1762-64 (1986); Witherspoon v. Illinois, 88 S. Ct.
1779, 1774-75 (1968); Spinkellink v. Wainwright, 578 F.2d 582, 593
(5th Cir. 1978). Without regard to the empirical basis for the
scientific evidence, I believe that most trial judges (including
the district court judge in this case who said as much in the
hearing on Causey’s motion to sever) would be willing to
acknowledge the common sense proposition that death qualified
54
juries tend to be more conviction prone. The real question is
whether that fact necessarily operates to prejudice a noncapital
defendant and whether there are strong governmental interests
supporting the empanelment of a death qualified jury for trial of
a noncapital defendant. See, e.g., Buchanan, 107 S. Ct. at 2913-
16.
Courts have been hesitant to indulge such a presumption, for
example, when to do so would require that trial courts empanel a
different jury for the guilt and punishment phases of a capital
trial. See Lockhart, 106 S. Ct. 1758. In such cases, the
government has a strong interest in its legislation specifying a
unitary jury system. See id. at 1769-69. Moreover, the
possibility that a capital jury which heard the guilt phase of the
trial will entertain a residual doubt as to the defendant’s guilt,
which might serve to benefit the capital defendant during the
penalty phase of the capital trial, is used to justify the premise
that the use of a death qualified jury during the guilt phase of
the capital trial may be beneficial to a capital defendant. Id.Obviously, that justification for rejecting the common sense
proposition that death qualified juries are more likely to convict
is not applicable when the issue is whether a noncapital defendant
should be tried with co-defendants who face the death penalty. In
the federal system a noncapital defendant will never face a
separate jury determination of punishment.
55
The empanelment of a death qualified jury in a case involving
a noncapital defendant, or at least a refusal to sever, may also be
supported by the state’s interest in avoiding the burden and
expense of two trials. Buchanan, 107 S. Ct. at 2915; Lockhart, 107
S. Ct. at 1769. However, that rationale is inapplicable in this
case because the district court expressly found that the evidence
to be offered at the guilt phase of trial was such that the burden
of trying Causey separate would be minimal. I conclude, therefore,
that there were no important governmental interests to be
vindicated and no potential benefit to Causey to be obtained from
trying the noncapital charges against him before the death
qualified jury empaneled to hear the capital charges against Davis
and Hardy.
Moreover, and without regard to whether death qualified juries
are more conviction prone in the run of cases, my review of this
record persuades me that the need to death qualify the jury in this
case resulted in a panel that was clearly prosecution oriented and
that was much more likely to convict. Of the twelve jurors
selected, ten described themselves in the jury questionnaire as
“pro-death penalty.” Eleven of the twelve jurors agreed that the
“death penalty gives the criminal what he deserves,” and disagreed
that the death penalty was unfair to minorities. Ten of the twelve
jurors stated that they disagreed or strongly disagreed with the
statement that our system should err on the side of letting a few
56
guilty people go free rather than on the side of convicting the
innocent. All twelve jurors were comfortable with the use of
undercover agents and informants and ten of the twelve jurors had
no objection to the use of government wire taps. Of the five
jurors that gave responses, four indicated they would have no
concern about government testimony induced by lenient treatment.
These last responses are particularly troubling given the role that
government undercover operations and induced testimony played in
this case, and Causey’s assertion that certain pro-death penalty
jurors eliminated by his co-defendants displayed a healthy measure
of skepticism about the relative weight of testimony procured by
those means. Having reviewed this record, including the
questionnaires submitted by the larger venire panel as compared to
the jury selected, it is clear to me that the jury selection
process necessitated by Davis’ and Hardy’s capital status led to
the empanelment of a strongly pro-government or conviction-prone
jury. Given that Causey was not exposed to the death penalty, I do
not feel that whatever societal or governmental interests may weigh
in favor of permitting a death qualified jury to hear the guilt
portion of a capital trial should have been permitted to operate to
his detriment in this case. Cf. Spinkellink, 578 F.2d at 593-94(commenting upon the absence in that case of evidence that death
qualification led to a more conviction prone or impartial jury).
I am also concerned that death qualification may, in some
57
cases, operate to systematically exclude certain distinctive groups
from jury service. See Lockhart, 106 S. Ct. at 1771 (Marshall, J.,
dissenting) (“The data strongly suggest that death qualification
excludes a significantly large subset--at least 11% to 17%--of
potential jurors who could be impartial during the guilt phase of
trial. Among the members of this excludable class are a
disproportionate number of blacks and women.” (footnote omitted)).
In this case, three African-American defendants were tried in New
Orleans, Louisiana, a community with a very large African-American
population. The jury selection process used in this case makes it
difficult to set exact numbers, but it is clear that the panel of
potential jurors included a significant number of African-American
citizens. Of the 151 prospective jurors who answered the
questionnaire, at least 42 (or 28 percent) were African-American.
And yet only one African-American was selected to sit on the jury
during the trial. I do not posit that race may be used as a proxy
for determining how a particular juror will vote, or whether a
particular jury is impartial. I do contend that death
qualification may have unintended and undesirable consequences,
such as those identified by the dissenting Justices in Lockhart and
Buchanan, and those identified by Causey in this appeal. Once
again, to whatever extent those consequences might be tolerable
when balanced against the government’s strong interest in
empaneling a qualified jury as to capital charges, I would hold
58
that such a consequence is intolerable and impermissible when
applied to a case such as Causey’s, in which the government did not
seek the death penalty, and in which the burden of separate trial
would be minimal.
I recognize that Causey’s evidence that the death
qualification procedure in this case had the effect of producing a
conviction prone jury or excluding African-American jurors may not
be sufficient standing alone to establish a Sixth Amendment claim
that he was deprived of an impartial jury drawn from a fair cross
section of the community. But we are dealing here with the
narrower issue of severance. In this case, evidence that the death
qualification procedure excluded African-American citizens tends to
establish another form of prejudice required to support his motion
for severance.
Finally, Causey was also prejudiced by a large quantity of
prejudicial spillover evidence relating to the criminal
relationship between Davis and Hardy that had little, if any,
bearing upon Causey’s case. Causey points, for example, to the
prejudicial testimony of Davis’ police partner, Sammie Williams,
and of unindicted co-conspirator Steve Jackson, both of whom
testified they had only very limited knowledge concerning Causey.
Moreover, there was an amazing volume of evidence documenting the
grisly details of the Davis/Hardy relationship and their brutal and
mercenary crimes that had only tangential, if any, relevance to
Causey.
59
There is also evidence in the record that the district court’s
evidentiary rulings were guided by considerations relevant to
Davis’ and Hardy’s capital status and without any consideration of
Causey’s position or interest. For example, Causey objected to
certain prejudicial evidence relating to the meaning of the phrase
“rock-a-bye-baby.” Causey’s co-defendants desired to enter a
stipulation as to the meaning of that phrase, to which Causey
objected. At a hearing in which that stipulation was entered over
Causey’s objection, the following exchange occurred:
Counsel for Causey: Yesterday the proposed stipulation about this
rock-a-bye-baby came up. Nobody asked me,
which is par for the course.
District Court: That’s because your client is not facing the
death penalty.
This example, in which the district court expressly invoked Davis’
and Hardy’s capital status as a basis for providing notice of
certain evidentiary decisions illustrates the extent to which those
defendants’ capital status infused the entire trial and caused a
subjugation of Causey’s rights to those of the capital defendants.
For the foregoing reasons, I would hold that the district
court’s refusal to grant Causey a separate trial constituted an
abuse of discretion on the facts of this case. I think the
majority opinion fails to grapple with the vexatious issues arising
from the trial of a noncapital defendant such as Causey, who played
a relatively minor role in the conspiracy, with capital defendants
such as Davis and Hardy, against whom the government offered an
g:\opin\96-30486.dis 60
impressive quantity of evidence relating to larger criminal
enterprises in which defendant Causey had no role. I respectfully
dissent from that portion of the majority’s decision affirming the
district court’s denial of Causey’s motion to sever his trial from
that of his co-defendants Davis and Hardy.
ENDRECORD
g:\opin\96-30486.dis 61
DENNIS, Circuit Judge, concurring:
I join fully in the majority opinion and assign additional
reasons for concurring.
I. The Defendants’ Convictions Under 18 U.S.C. § 242The defendants did not object below or argue here that the due
process “fair warning requirement” was not satisfied in these
cases, i.e., that they have been held criminally responsible for
conduct which they could not reasonably understand to be proscribed
by 18 U.S.C. § 242. During the pendency of this appeal, the
Supreme Court, in United States v. Lanier, 520 U.S. 259 (1997),
clarified the fair warning requirement. That decision caused me to
have concern that a failure to satisfy the fair warning
requirement, which may have been an unclear error at trial, may now
have become clear on appeal because the applicable law has been
clarified. “In exceptional circumstances, especially in criminal
cases, appellate courts, in the public interest, may, of their own
motion, notice errors to which no exception has been taken, if the
errors are obvious, or if they otherwise affect the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Atkinson, 297 U.S. 157, 160 (1936). See also FED. R.
CRIM. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
Also, even if there is not plain error in this respect, Lanier must
be taken into account in this court’s evaluation of the defendants’
insufficiency-of-evidence arguments. It now may be inferred from
g:\opin\96-30486.dis
Lanier that we must determine that each defendant was given fair
warning, as clarified by Lanier, prior to his charged criminal
conduct, that such particular course of conduct would amount to an
act under color of law in deprivation of a person’s constitutional
right, in order to determine correctly whether there was sufficient
evidence for a reasonable juror to find beyond a reasonable doubt
that the defendant violated 18 U.S.C. § 242 by engaging in such
conduct.
I ultimately conclude that the fair warning requirement, as
clarified by Lanier, was satisfied as to each defendant, and that
there was sufficient evidence as to each element of the charged
crimes to constitutionally support their convictions. Accordingly,
I concur in the majority opinion and judgment, but express my
reasoning in this separate opinion to give defense counsel, as well
as colleagues of the bench and bar, a fair opportunity to point out
any flaws that it may contain.
A. The Statute and the Issues
Section 242, Title 18, United States Code, in pertinent part,
provides:
Whoever, under color of any law, statute,
ordinance, regulation, or custom, willfully
subjects any person in any State, Territory,
or District to the deprivation of any rights,
privileges, or immunities secured or protected
by the Constitution or laws of the United
States, or to different punishments, pains, or
penalties, on account of such person being an
alien, or by reason of his color, or race,
than are prescribed for the punishment of
g:\opin\96-30486.dis 63
citizens,[shall be subject to specified
criminal penalties].
Specifically stated, the issues of concern are: (1) whether 18
U.S.C. § 242, the constitutional provisions it incorporates, and
the federal court decisions interpreting them, gave fair warning to
the defendant, Len Davis, that a state officer who, while acting
under color of law, intentionally and without justification causes
a person to be deprived of her right to life, violates a right that
had been made specific either by the express terms of the
Constitution or laws of the United States, or by decisions
interpreting them; (2) whether the defendant police officer, Len
Davis, also was given fair warning by the statute, its incorporated
constitutional provisions, and decisions interpreting them, that
his course of conduct in causing Kim Marie Groves to be deprived of
her right to life amounted to acts under color of law; and (3)
whether the private person defendants, Paul Hardy and Damon Causey,
were given fair warning that Len Davis was a state official acting
under color of law when he caused Kim Marie Groves to be deprived
of her right to life, and that their intentional participation with
Davis in that homicide would therefore also constitute acts under
color of law in violation of Kim Marie Groves’s constitutional
right to life that had been made specific by 18 U.S.C. § 242, its
incorporated constitutional and statutory provisions, and the
federal court decisions interpreting them.
g:\opin\96-30486.dis 64
B. United States v. Lanier
In United States v. Lanier, 520 U.S. 259 (1997), a state judge
had been convicted under 18 U.S.C. § 242 of criminally violating
the constitutional rights of five women by assaulting them sexually
in his chambers. A panel of the Court of Appeals for the Sixth
Circuit affirmed the convictions and sentence, United States v.
Lanier, 33 F.3d 639 (6th Cir. 1994), but the full court, on
rehearing en banc, set aside the convictions for lack of any notice
to the public that § 242 covers simple or sexual assault crimes,
holding that § 242 criminal liability may be imposed only if the
constitutional right allegedly violated is first identified by a
decision of the Supreme Court, and only when the right has been
held to apply in a factual situation “fundamentally similar” to the
one at bar. United States v. Lanier, 73 F.3d 1380, 1393 (6th Cir.
1996) (en banc). The Supreme Court granted certiorari, declared
that “[t]he question is whether this standard of notice is higher
than the Constitution requires, and we hold that it is[,]” Lanier,
520 U.S. at 261, vacated the judgment, and remanded for application
of the proper standard “[b]ecause the Court of Appeals used the
wrong gauge in deciding whether the prior judicial decisions gave
fair warning that respondent’s actions violated constitutional
rights. . . .” Id. at 272.
Because § 242, in lieu of describing the specific conduct it
forbids, incorporates constitutional guarantees by reference, which
g:\opin\96-30486.dis 65
themselves are stated “with some catholicity of phrasing[,] [t]he
result is that neither the statute[] nor a good many of [its]
constitutional referents delineate the range of forbidden conduct
with particularity.” Id. at 265. The irony of this is that a
prosecution to enforce one application of § 242's protection of due
process can threaten the accused with deprivation of another:
“what Justice HOLMES spoke of as ‘fair warning . . . in language
that the common world will understand, of what the law intends to
do if a certain line is passed. To make the warning fair, so far
as possible the line should be clear.’” Id. (quoting McBoyle v.
United States, 283 U.S. 25, 27 (1931)). “‘“The . . . principle is
that no man shall be criminally responsible for conduct which he
could not reasonably understand to be proscribed.”’” Id. (quoting
Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (quoting United
States v. Harriss, 347 U.S. 612, 617 (1954))).
In Screws v. United States, 325 U.S. 91 (1945), a plurality of
the Supreme Court recognized that the openness of the
constitutional guarantees, when incorporated by reference into §
242, generally are ill-suited to the task of giving fair warning
about the scope of criminal responsibility. At the same time, that
plurality declared that this constitutional difficulty does not
arise when the accused is charged with violating a “‘right which
has been made specific either by the express terms of the
Constitution or laws of the United States or by decisions
g:\opin\96-30486.dis 66
interpreting them.’” Lanier, 520 U.S. at 267 (quoting Screws, 325
U.S. at 104). “Accordingly, Screws limited the statute’s coverage
to rights fairly warned of, having been ‘made specific’ by the time
of the charged conduct.” Id.Consequently, the Supreme Court in Lanier concluded that the
Sixth Circuit erred in adding as a gloss to this standard the
requirement that a prior decision of the Supreme Court has defined
the constitutional right at issue in a factual situation
“fundamentally similar” to the one at bar. Id. at 268. The Court
explained that the Screws plurality “referred in general terms to
rights made specific by ‘decisions interpreting’ the Constitution,
and no subsequent case has held that the universe of relevant
interpretive decisions is confined to our opinions.” Id. (internal
citation omitted). It further explained that the Court has
specifically referred to court of appeals decisions in defining the
established scope of a constitutional right under § 241 (citing
Anderson v. United States, 417 U.S. 211, 223-27 (1974)); and in
inquiring whether a right was “clearly established” when applying
the qualified immunity rule under § 1983 and Bivens v. Six Unknown
Narcotics Agents, 403 U.S. 388 (1971). Lanier, 520 U.S. at 268.
According to the Court, “[D]isparate decisions in various Circuits
might leave the law insufficiently certain even on a point widely
considered, [but] such a circumstance may be taken into account in
deciding whether the warning is fair enough. . . .” Id. at 269.
g:\opin\96-30486.dis 67
Further, the Supreme Court in Lanier stated, it had not
demanded precedents applying the constitutional right at issue to
a “fundamentally similar” factual situation, but that it had upheld
convictions under §§ 241 or 242 despite notable factual
distinctions between the precedents relied upon and the cases then
before the court, “so long as the prior decisions gave reasonable
warning that the conduct then at issue violated constitutional
rights.” Id. The Sixth Circuit erred, the Supreme Court stated,
in concluding that due process fair warning under § 242 demands
more than the “clearly established” qualified immunity test under
§ 1983 or Bivens. Id. “[T]he object of the ‘clearly established’
immunity standard is not different from that of ‘fair warning’ as
it relates to law ‘made specific’ for the purpose of validly
applying § 242. . . . To require something clearer than ‘clearly
established’ would, then, call for something beyond ‘fair
warning.’” Id. at 270-71.
“In sum,” the Court in Lanier concluded, “as with civil
liability under § 1983 or Bivens, all that can usefully be said
about criminal liability under § 242 is that it may be imposed for
deprivation of a constitutional right if, but only if, ‘in the
light of pre-existing law the unlawfulness [under the Constitution
is] apparent[.]’ Where it is, the constitutional requirement of
fair warning is satisfied.” Id. at 271-72 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
g:\opin\96-30486.dis 68
C. Fair Warning as to the Constitutional Right Violated
The Supreme Court in Lanier pointed out that “general
statements of the law are not inherently incapable of giving fair
and clear warning, and in [some] instances a general constitutional
rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though
‘the very action in question has [not] previously been held
unlawful.” Id. at 271 (quoting Anderson, 483 U.S. at 640). In my
opinion, the guarantees of the Fifth Amendment that “[n]o person
shall be deprived of life . . . without due process of law,” and of
the Fourteenth Amendment that “nor shall any State deprive any
person of life . . . without due process of law,” together with §
242, made specific every person’s right not to be deprived of life
without due process of law so as to give “adequate advance notice”
that a person who caused such a deprivation while acting under
color of law “‘would be visited with punishment . . .[and] not
punished for an unknowable something.’” Id. at 267 (quoting
Screws, 325 U.S. at 105). Moreover, prior court decisions have
given fair warning that willful or intentional deprivation of a
person’s life without due process of law committed under color of
law is punishable under 18 U.S.C. §§ 241 and 242.
In United States v. Price, 383 U.S. 797 (1966), the Supreme
Court declared that: (1) § 241 reaches conspiracies to injure any
citizen in the free exercise or enjoyment of any right or privilege
g:\opin\96-30486.dis 69
secured to him by the Constitution; (2) this language includes
rights or privileges protected by the Fourteenth Amendment; and (3)
this language extends to conspiracies otherwise within the scope of
the section participated in by officials alone or in collaboration
with private persons. Id. at 798.
Moreover, the Price Court concluded that “an allegation of
official, state participation in murder, accomplished by and
through its officers with the participation of others,” is an
“allegation of state action which, beyond dispute, brings the
conspiracy within the ambit of the Fourteenth Amendment.” Id. at
799.
The Fifth Circuit in Crews v. United States, 160 F.2d 746 (5th
Cir. 1947), followed the legal principles set forth by the Supreme
Court in Screws in affirming the conviction under 18 U.S.C. § 52(now § 242) of a town marshal who murdered a black man. The
defendant, who had personal animosity toward McFadden (the
decedent), was riding in his nephew’s automobile when he spotted
McFadden, who allegedly was drunk. Crews guided McFadden without
resistance to his nephew’s car, put him in the rear seat and drove
McFadden to a bridge, where Crews forced him to jump into the
river, even though McFadden told him that he could not swim.
McFadden drowned. Id. at 747-48.
This court affirmed Crews’s conviction, concluding that Crews
acted “under color of law” in depriving McFadden of the
g:\opin\96-30486.dis 70
“constitutional right to life or liberty or to a fair trial under
due processes of law rather than a trial by ordeal.” Id. at 749.
In a civil case arising under §§ 1983, 1981, 1985(3), and
1986, this court in Brazier v. Cherry, 293 F.2d 401 (5th Cir.),
cert. denied, 368 U.S. 921 (1961) (Brown, J.), held that an action
against Georgia police officers for the wrongful death of the
deceased, allegedly resulting from violations of Federal Civil
Rights Statutes, gave rise, by virtue of the Georgia survival
statute, of a federally enforceable claim for damages during his
lifetime and by his survivors. Before answering the ultimate
question of whether such a remedy was available, the court
concluded that the Civil Rights Statutes express a “clear
congressional policy to protect the life of the living from the
hazard of death caused by unconstitutional deprivations of civil
rights.” Id. at 405. According to the court:
[I]t defies history to conclude that Congress
purposely meant to assure to the living
freedom from such unconstitutional
deprivations, but that, with like precision,
it meant to withdraw the protection of civil
rights statutes against the peril of death.
The policy of the law and the legislative aim
was certainly to protect the security of life
and limb as well as property against these
actions. Violent injury that would kill was
not less prohibited than violence which would
cripple.
We have fresh evidence of the broad and
sweeping aims of Congress with specific regard
to § 1983. Monroe v. Pape makes an extensive
re-examination of the legislative history and
summarizes its purpose in this way. “The
debates are long and extensive. It is
g:\opin\96-30486.dis 71
abundantly clear that one reason the
legislation was passed was to afford a federal
right in federal courts because by reason of
prejudice, passion, neglect, intolerance or
otherwise, state laws might not be enforced
and the claim of citizens to the enjoyment of
rights, privileges, and immunity guaranteed by
the Fourteenth Amendment might be denied by
the state agencies.” “It is no answer that
the State has a law which if enforced would
give relief. The federal remedy is
supplementary to the State and the state
remedy need not be first sought and refused
before the federal one is invoked.”
Id. at 404-05 (emphasis added) (internal citations and footnote
omitted).
Other courts and judges expressly have recognized that § 242
criminalizes “murder by state officers in the course of official
conduct and done with the aid of state power.” Screws, 325 U.S. at
129 (Rutledge, J., concurring). See Bowers v. DeVito, 686 F.2d
616, 618 (7th Cir. 1982) (Posner, J.) (“There is a constitutional
right not to be murdered by a state officer, for the state violates
the Fourteenth Amendment when its officer, acting under color of
state law, deprives a person of life without due process of law.”)
(citing Brazier, 293 F.2d at 404-05). Cf. Beard v. O’Neill, 728
F.2d 894, 898 (7th Cir. 1984) (“The Fifth Amendment guarantees,
among other things, that a person will not be deprived of life
without due process of law. Jeff Beard had a constitutional right,
therefore, not to be murdered by someone acting under color of
federal authority.” (citing Brazier)), cert. denied, 469 U.S. 825(1984). See also, discussed in more depth below, United States v.
g:\opin\96-30486.dis 72
Robinson, 503 F.2d 208 (7th Cir. 1974), in which the rogue cop who
killed Beard (of Beard v. O’Neill, supra), was convicted of
violations of §§ 241 and 242 for committing the murder for hire.
In Robinson, however, the defendant did not raise and the opinion
does not discuss, but apparently assumes, fair warning and color of
law requirements were met.
These cases, along with others discussed later, make it
apparent that the “very action in question,” i.e., deprivation of
a person’s life by a state officer in the course of official
conduct and done with the aid of state power, is unlawful under the
Constitution. See Lanier, 520 U.S. at 271.
Arguably, a person also has a separately “defined right”
protected by the Constitution not to be deprived of liberty without
due process of law, and this right is also violated by having his
or her life taken willfully by a state officer acting under color
of law. In United States v. Gwaltney, 790 F.2d 1378 (9th Cir.
1986), cert. denied, 479 U.S. 1104 (1987), the Ninth Circuit
affirmed the criminal conviction under § 242 of a California
Highway Patrol officer who raped and murdered a woman traveling on
the highway. According to the indictment, Gwaltney, “acting under
color of law, willfully assaulted and shot Bishop, thereby causing
her death and violating her constitutionally protected right not to
be deprived of life or liberty without due process of law.” Id. at
1380-81 (emphasis added).
g:\opin\96-30486.dis 73
The Gwaltney court held that the following jury instructions
were not plainly erroneous:
[T]he government was obliged to prove that
Gwaltney deprived Bishop of a right secured or
protected by the Constitution or laws of the
United States; that the right not to be
deprived of life or liberty without due
process of law is such a right; that the right
to liberty includes the principle that no
person may be physically assaulted,
intimidated, or otherwise abused intentionally
and without justification by a person acting
under color of state law; and that the right
not to be deprived of life without due process
of law prohibits a police officer acting under
color of law from killing any person without
justification.
Id. at 1387 (emphasis added).
Other courts, including the Fifth Circuit, sometimes have
framed the “defined right” exclusively as the right to liberty
without due process. In United States v. Hayes, 589 F.2d 811 (5th
Cir.), cert. denied, 444 U.S. 847 (1979), this court affirmed the
conviction under § 242 of a police chief who, along with his son-
in-law and two other officers, arrested a suspected burglar, drove
him to a deserted area, and shot him to death. The police chief
later arranged for his wife, daughter, and sister-in-law to
transport the body 400 miles, where they buried the body in a
shallow grave in an isolated area. The indictment in Hayes charged
the police chief with “depriving Richard A. Morales of the right to
liberty without due process of law, resulting in the death of
Richard A. Morales.” Id. at 816 (emphasis added).
g:\opin\96-30486.dis 74
This court in Hayes declared that the “defined right” which
had been violated was the “right to be tried by a court, and not by
ordeal, and thus to be free from unlawful assault by state law
enforcement officers when lawfully in their custody.” Id. at 820
(emphasis added). According to the court, the 1968 amendment to §
242, which added life imprisonment where “death results,”
“alter[ed] the statute only insofar as requiring the additional
element that death ensued as a proximate result of the accuseds’
willful violation of the victim’s defined rights.” Id.
Significantly, this court declared:
The amendment to Section 242 . . . did not
proscribe any additional Conduct which was not
already punishable under the unamended version
of Section 242. Rather, those cases of
infringement with defined rights which result
in death are a subset of the universe defined
as those cases of infringement with defined
rights. Activities which fall within the
former naturally fall within the latter.
Id. at 821.9
Even though the Fifth Circuit held in the earlier case of
Crews, and suggested in Brazier, that when a murder is committed
under color of state law, the “defined rights” are life or liberty,
9
The Fifth Circuit in United States v. Stokes, 506 F.2d 771(5th Cir. 1979), held that when a prisoner is assaulted (but not
killed) by police, the right to due process under § 242 is not
limited to “a right not to be summarily punished or deprived of a
trial by law,” but also includes the right not to be deprived of
liberty, which encompasses the right to be “free from unlawful
attacks upon the physical integrity of his person.” Id. at 773 &
n.2, 774 (emphasis added).
g:\opin\96-30486.dis 75
Hayes made it apparent that whether the victim of an assault lives
or dies, the “defined right” is liberty, rather than life. Thus,
under Hayes, the jury in the present cases was properly
instructed.10
Similarly, in United States v. Lebron-Gonzalez, 816 F.2d 823(1st Cir.), cert. denied, 484 U.S. 843, 857 (1987), the First
Circuit, in affirming the criminal conviction under §§ 241 and 242
of a police officer who murdered a prosecution witness, found no
clear error in the following jury instruction:
[O]ne of the liberties secured to the victim
involved in this case by the Constitution is
the liberty to be free from unlawful attacks
upon her person. It has always been the
policy of the law to protect the physical
integrity of every person from unauthorized
violence. Liberty thus includes the principle
that no person may ever be physically
assaulted, intimidated, or otherwise abused
intentionally and without justification by a
person acting under the color of law of any
state.
Id. at 829 (emphasis added).
In sum, whether the “defined right” is one of liberty or of
life, or both, the foregoing decisions, together with the express
guarantees of due process of law of the Fifth and Fourteenth
Amendments, give fair warning that a person’s right to life is a
10
The jury was instructed that the defendant was charged with
depriving the victim of “the right not to be deprived of liberty
without due process of law, that is, the right to be free from the
use of unreasonable force by one acting under color of law,” which
is a right “secured by the Constitution and laws of the United
States.”
g:\opin\96-30486.dis 76
protected constitutional right, and that an intentional violation
of that right under color of law is proscribed criminal conduct
under §§ 241 and 242.
E. Fair Warning That Conduct Is Under Color of Law
The Supreme Court in Lanier dealt only with the “right made
specific” element of § 242. Lanier, 520 U.S. at 264.11 It is
difficult to conceive of any reason, however, that the Due Process
fair warning requirement should not apply also to the “under color
of law” element of § 242. Assuming that it does, it also follows
that the principles and methodology set forth in Lanier for
determining whether the requirement was satisfied with respect to
a “defined right” may also be applied to decide whether an accused
was given fair warning that the charged conduct amounted to acts
under color of law before he engaged in that conduct.
Court decisions interpreting the “under color of law” element
of § 242 prior to the offenses at issue in these cases gave fair
warning to all of the defendants that Len Davis’s actions that
caused the deprivation of Groves’s right to life constituted
11
According to the Court:
Section 242 is a Reconstruction Era civil
rights statute making it criminal to act (1)
“willfully” and (2) under color of law (3) to
deprive a person of rights protected by the
Constitution or laws of the United States.
The en banc decision of the Sixth Circuit
dealt only with the last of these elements,
and it is with that element alone that we are
concerned here.
Id. (internal citations and footnote omitted).
g:\opin\96-30486.dis 77
conduct under color of law. In Monroe v. Pape, 365 U.S. 167(1961), overruled in part on other grounds, Monell v. Department of
Soc. Servs. of N.Y., 436 U.S. 658, 663 (1978), the Supreme Court
held that the “under color of” provision of 42 U.S.C. § 1983applied to unconstitutional actions taken without state authority
as well as unconstitutional action authorized by the state. In
that case, the complaint alleged that 13 Chicago police officers:
(1) invaded the plaintiffs’ home and searched it without a warrant;
(2) arrested and detained Mr. Monroe without a warrant and without
arraignment; (3) detained him on “open” charges at the police
station for 10 hours, interrogated him about a two-day-old murder,
and refused to allow him to call an attorney or his family; and (4)
subsequently released him without criminal charges being preferred
against him.
The Supreme Court in Monroe stated and answered the question
presented as “whether Congress, in enacting [42 U.S.C. § 1983],
meant to give a remedy to parties deprived of constitutional
rights, privileges and immunities by an official’s abuse of his
position. . . . We conclude that it did so intend.” Monroe, 365
U.S. at 172. The Court specifically rejected the argument “that
‘under color of’ enumerated state authority excludes acts of an
official or policeman who can show no authority under state law,
state custom, or state usage to do what he did.” Id. The Court
noted that, although one of the aims of the statute was “to provide
g:\opin\96-30486.dis 78
a federal remedy where the state remedy, though adequate in theory,
was not available in practice[,]” id. at 174, the legislation has
general and independent application regardless of the substance of
state laws or the quality of their enforcement. The Court stated:
Although the legislation [42 U.S.C. § 1983]
was enacted because of the conditions that
existed in the South at that time, it is cast
in general language and is as applicable to
Illinois as it is to the States whose names
were mentioned over and again in the debates.
It is no answer that the State has a law which
if enforced would give relief. The federal
remedy is supplementary to the state remedy,
and the latter need not be first sought and
refused before the federal one is invoked.
Hence the fact that Illinois by its
constitution and laws outlaws unreasonable
searches and seizures is no barrier to the
present suit in the federal court.
Id. at 183.
Moreover, the Supreme Court in Monroe concluded that the
meaning given “under color of” law “in the Classic case and in the
Screws and Williams Cases was the correct one; and we adhere to
it.” Id. at 187. The Court recalled that in Classic, it had
ruled, “‘Misuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law, is action taken “under color of” state law.’” Id. at
184 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
“ The right involved in the Classic case was the right of voters in
a primary to have their votes counted. The laws of Louisiana
required the defendants ‘to count the ballots, to record the result
g:\opin\96-30486.dis 79
of the count, and to certify the result of the election.’” Monroe,
365 U.S. at 183–84 (quoting Classic, 313 U.S. at 326). “But
according to the indictment they did not perform their duty.” Id.
at 184. The Monroe Court further noted that the Classic case’s
view of the meaning of the words “under color of” state law, in 18
U.S.C. § 242, was reaffirmed in Screws, 325 U.S. at 108-13; that in
Screws, the Court had rejected, as it did in Monroe, the argument
that “under color of” state law included only action taken by
officials pursuant to state law; that the Court had adhered to
Classic’s view in Williams v. United States, 341 U.S. 70, 99
(1951); that “[t]he meaning which the Classic case gave to the
phrase ‘under color of any law’ involved only a construction of the
statute. Hence if it states a rule undesirable in its
consequences, Congress can change it.” Monroe, 365 U.S. at 185;
that it is beyond doubt that this phrase should be accorded the
same construction in both 42 U.S.C. § 1983 and 18 U.S.C. § 242.
Id.; and that since the Screws and Williams decisions, Congress had
several pieces of civil rights legislation before it, but on none
of those occasions was a word of criticism directed to the prior
construction given by the Court to the words “under color of” law.
Id. at 186.
The Supreme Court’s opinion in United States v. Price, 383
U.S. 797 (1966), contains a short treatise on “under color of law”
that contributes to fair warning that Len Davis’s conduct was
g:\opin\96-30486.dis 80
within the scope of that term, and that private persons, jointly
engaged with him in the prohibited action, would be acting “under
color” of law for purposes of the statute. In footnote 7, the
Court stated:
“Under color” of law means the same thing in §
242 that it does in the civil counterpart of §
242, 42 U.S.C. § 1983. In cases under § 1983,
“under color” of law has consistently been
treated as the same thing as the “state
action” required under the Fourteenth
Amendment. The contrary view in a § 242
context was expressed by the dissenters in
Screws, and was rejected then, later in
Williams II, and finally –- in a § 1983 case -
- in Monroe v. Pape. Recent decisions of this
Court which have given form to the “state
action” doctrine make it clear that the
indictments in this case allege conduct on the
part of the “pr[i]vate” defendants which
constitutes “state action,” and hence action
“under color” of law within § 242. In Burton
v. Wilmington Parking Authority, we held that
there is “state action” whenever the “State
has so far insinuated itself into a position
of interdependence (with the otherwise
‘private’ person whose conduct is said to
violate the Fourteenth Amendment) * * * that
it must be recognized as a joint participant
in the challenged activity, which, on that
account, cannot be considered to have been so
‘purely private’ as to fall without the scope
of the Fourteenth Amendment.”
Id. at 794 n.7 (internal citations omitted).
Several courts of appeals have dealt with the question of when
a state law enforcement officer, whose conduct is usually
considered to be state action, becomes a private citizen for state
action/under color of law purposes. In United States v. Tarpley,
945 F.2d 806 (5th Cir. 1991), involving 18 U.S.C. § 242, the
g:\opin\96-30486.dis 81
defendant deputy sheriff was accused of assaulting his wife’s
former lover under color of law. Affirming his conviction, the
Fifth Circuit stated:
Tarpley did more than simply use his service
weapon and identify himself as a police
officer. At several points during his assault
of Vestal, he claimed to have special
authority for his actions by virtue of his
official status. He claimed that he could
kill Vestal because he was an officer of the
law. Significantly, Tarpley summoned another
police officer from the sheriff’s station and
identified him as a fellow officer and ally.
The men then proceeded to run Vestal out of
town in their squad car. The presence of
police and the air of official authority
pervaded the entire incident.
Id. at 809.
Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), cert.
granted, 425 U.S. 910, cert. dismissed as improvidently granted,
429 U.S. 118 (1976), dealt with an off-duty, out-of-uniform police
officer whose involvement in a bar room brawl resulted in his
shooting several and killing two persons. The officer did not
identify himself as such when he intervened. On the other hand,
police department regulations imposed a continuing duty on police
officers, even when off duty, to act in connection with any type of
police or criminal activity. Also, the officer used mace issued by
the department and a gun, similarly issued by the department, which
he was required to carry at all times. The Sixth Circuit indicated
that the officer was acting under color of law as a matter of law:
“The fact that a police officer is on or off duty, or in or out of
g:\opin\96-30486.dis 82
uniform is not controlling. ‘It is the nature of the act performed,
not the clothing of the actor or even the status of being on duty,
or off duty, which determines whether the officer has acted under
color of law.’” Id. at 441.
In Revene v. Charles County Commissioners, 882 F.2d 870 (4th
Cir. 1989), an off-duty deputy sheriff shot and killed plaintiff’s
decedent. The Fourth Circuit reversed the district court’s
dismissal on state action grounds. Even though the defendant was
off duty, out of uniform, and driving his own vehicle, as a matter
of local law he was on duty twenty-four hours a day and was
expected to take proper police action when appropriate. Id. at
873.
Other cases have drawn helpful distinctions: Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (“The Constitution is a
charter of negative liberties; it tells the state to let people
alone; it does not require the federal government or the state to
provide services, even so elementary a service as maintaining law
and order. . . . [However,][i]f the state puts a man in a position
of danger from private persons and then fails to protect him, it
will not be heard to say that its role was merely passive; it is as
much an active tortfeasor as if it had thrown him into a snake
pit.”); Beard v. O’Neal, 728 F.2d 894, 897 (7th Cir. 1984) (“This
case is unlike a situation where a uniformed police officer, who is
in a position to prevent violence, observes a murder without
g:\opin\96-30486.dis 83
intervening in any way. . . . Indeed, the officer’s presence and
authority might facilitate the murder by providing the symbolic
support of the government. In such a case, the officer might be
personally liable for the acts of the person who operated the
murder weapon.”).
Accordingly, an act is under color of law when it constitutes
a “‘[m]isuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law.’” Monroe, 365 U.S. at 184 (quoting Classic, 313 U.S.
at 326); Tarpley, 945 F.2d at 809; Lanier, 33 F.3d. at 653. “It
is clear that under ‘color’ of law means under ‘pretense’ of law.”
Screws, 325 U.S. at 111. Accord Tarpley, 945 F.2d at 809; Lanier,
33 F.3d at 653. Individuals pursuing private aims but not using or
misusing state authority are not acting under color of law purely
because they are state officers. See Tarpley, 945 F.2d at 809;
Lanier, 33 F.3d at 653. However,“[a]cts of officers who undertake
to perform their official duties are included whether they hew to
the line of their authority or overstep it.” Screws, 325 U.S. at
111. Screws does not “mean that if officials act for purely
personal reasons, they necessarily fail to act ‘under color of
law.’” Tarpley, 945 F.2d at 809 (citing Brown v. Miller, 631 F.2d
408 (5th Cir. 1980); United States v. Davila, 704 F.2d 749 (5th
Cir. 1983)).
Consequently, Davis, Hardy, and Causey had adequate advance
g:\opin\96-30486.dis 84
notice that their actions were not merely part of Davis’s pursuit
of a purely personal goal, but also involved a substantial use or
misuse of the authority and power vested in him by state law: (1)
Davis’s actions were taken to protect his position as a police
officer, to retaliate against Groves for informing the IAD of his
alleged previous acts under color of law in misuse of his
authority, and to send the IAD a message to leave him alone in his
exercise of the powers of his office; (2) While acting under the
pretense of performing his official duties, Davis used the police
station, police squad car, police radio, and police telephone, as
well as his presence as a fully armed and equipped, uniformed
policeman, driving a marked police squad car, to plan, direct, and
effectuate the murder of Groves; (3) Davis had the power as a
police officer to either protect or not protect Hardy and Causey
from investigation and arrest for numerous crimes; Davis used this
power vested in him by the state to persuade and require Hardy and
Causey to murder Groves; (4) Davis used his authority and the power
of his office to provide, on his own watch, surveillance, lookout,
and cover for the killers under which they began and carried out
most of the homicide operation; (5) After setting the murder scheme
in motion, Davis continued to misuse his authority and
responsibility by deliberately allowing the criminal activity to
proceed unimpeded, contrary to his obligation as a police officer,
whether on duty or off, to interdict known breaches of the peace;
(6) Hardy and Causey joined and executed the murder operation with
g:\opin\96-30486.dis 85
full knowledge and consent to the foregoing facts.
It is true that, unlike the present case, most of the previous
decisions upholding convictions under §§ 241 and 242, and civil
judgments under § 1983, for unconstitutional deprivations of life
and liberty by law enforcement officers involved the officer’s
personal operation of the weapon or other criminal means. There is
no reason in law, common sense, or morality, however, for any
rational person, whether he is a police officer or a co-participant
in an offense with the officer, to believe that the deprivation of
a person’s constitutional right to life by an officer’s use and
misuse of his authority through an intermediary would not be
equally as unlawful as such a deprivation by the officer’s own
hand. The Supreme Court has “upheld convictions under § 241 or §
242 despite notable factual distinctions between the precedents
relied on and the cases then before the court, so long as the prior
decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Lanier, 520 U.S. at 269 (citing
authorities). “In sum, as with civil liability under § 1983 or
Bivens, all that can usefully be said about criminal liability
under § 242 is that it may be imposed for deprivation of a
constitutional right if, but only if, ‘in the light of pre-existing
law the unlawfulness [under the Constitution] is apparent[.]’
Where it is, the constitutional requirement of fair warning is
g:\opin\96-30486.dis 86
satisfied.” Id. at 271-72 (internal citation omitted).12
12
There are other §§ 241 and 242 cases involving facts similar
to Len Davis’s “rogue cop” conduct in which, apparently, the “color
of law” and “right protected” elements were so clear that these
issues were not raised as assignments of error in either case.
In United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), cert.
denied, 420 U.S. 949 (1975), the Seventh Circuit affirmed the §§
241 and 242 criminal convictions of a police officer who conspired
with lay-person accomplices to murder drug dealers in order to
finance a scheme to rob an armored car.
In Robinson, one indictment charged two Chicago police officers
with conspiring with others to “deprive citizens of their rights to
life, liberty, and property without due process of law, and that
the operation of the conspiracy resulted in the deaths of Jeff
Beard and Verdell Smith, in violation of 18 U.S.C. § 241"; and two
counts charged Robinson, while acting under color of law, with
depriving Joseph Rubio and Jeff Beard of “constitutional rights and
protections” in violation of 18 U.S.C. § 242. Id. at 210.
Police officer Robinson entered into a conspiracy with Holmes and
O’Neal (an undercover paid FBI informant) to “shake down” drug
pushers in order to finance what was called a “milkrun,” which was
a scheme to rob $1 million from an armored car. Id. at 211. As
part of the conspiracy, Officer Robinson obtained a contract to
murder Chuck McFerren, a witness in a state murder trial, with the
money to be used to fund the “milkrun.” Id. After Robinson,
Tolliver (a second police officer who was acquitted), Holmes, and
O’Neal staked out the lounge owned by McFerren, they followed
McFerren in Robinson’s car. When they pulled up next to McFerren’s
car, Officer Tolliver fired a rifle through the rear window of the
vehicle, killing Verdell Smith, a passenger in the car. Id.Nine days later, Officer Robinson obtained a $5,000 murder
contract on Joe Rubio, a reputed narcotics pusher. Id. at 211-12.
Officer Robinson, O’Neal, and a third conspirator, Bruce, stopped
Rubio’s car. Robinson and Bruce handcuffed Rubio’s hands behind
his back, put him in the back seat of O’Neal’s car, and drove him
to a public park forest. Id. at 212. Instead of killing Rubio,
Robinson “shook him down,” getting Rubio to pay each conspirator
$100 and agree to sell narcotics for them. Id.Two days later, Officer Robinson told O’Neal that he had a $1,000
“contract” to murder Jeff Beard, another narcotics dealer. Id.Robinson and O’Neal spotted Beard at a pool hall, and Robinson
accosted him when he left. Robinson told Beard that he had a
warrant and that he was going to take Beard to the police station.
Id. Robinson searched Beard, handcuffed him, and placed him in the
back of a car driven by O’Neal. Id. Robinson and O’Neal drove
Beard to Indiana, where Robinson shot and clubbed Beard to death.
g:\opin\96-30486.dis 87
Applying the fair warning standard, principles, and
methodology clarified by the Supreme Court in Lanier, by analogy,
I conclude that each of the defendants in the present cases was
given fair warning by prior decisions that the conduct he
intentionally chose to engage in would amount to acts under color
of law and subject him to criminal liability under 18 U.S.C. § 242.
II. Effect of Erroneous Conviction
of Witness Tampering
I agree that the witness tampering conviction must be reversed
and the case remanded for resentencing.
I write further only to add authorities that tend to support
the majority opinion’s conclusion that “[b]ecause it is impossible
to say that the jury’s penalty phase recommendations of the death
penalty were not influenced by the fact that Davis and Hardy had
received three death eligible convictions, rather than two, we must
vacate the death sentences and remand for new sentencing hearings.”
This court has declared that “unless it can be ascertained
from the record that a trial court’s sentence on a valid conviction
was not affected by a subsequently invalidated conviction on
another count of the indictment, a defendant must be resentenced on
the valid conviction.” Bourgeois v. Whitley, 784 F.2d 718, 721
(5th Cir. 1986). See also Jerkins v. United States, 530 F.2d 1203,
Id.g:\opin\96-30486.dis 88
1204 (5th Cir. 1976); United States v. Garcia, 821 F.2d 1051, 1053
(1987) (citing United States v. Tucker, 404 U.S. 443 (1972)).
In capital cases, “[e]volving standards of societal decency
have imposed a correspondingly high requirement of reliability on
the determination that death is the appropriate penalty in a
particular case.” Mills v. Maryland, 486 U.S. 367, 383-84 (1988).
Therefore, “[t]he possibility that [defendant’s] jury conducted its
task improperly certainly is great enough to require resentencing.”
Id. at 384 (emphasis added). Furthermore, “‘[t]he risk that the
death penalty will be imposed in spite of factors which may call
for a less severe penalty . . . is unacceptable and incompatible
with the commands of the Eighth and Fourteenth Amendments.’” Id.
at 376-77 (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)).
In this case, defendants Davis, Hardy, and Causey were charged
with three counts alleging violations of: (1) 18 U.S.C. § 241,
“Conspiracy against rights”; (2) 18 U.S.C. § 242, “Deprivation of
rights under color of law”; and (3) 18 U.S.C. § 1512, “Tampering
with a witness, victim, or an informant.” Conviction on each of
these counts is punishable by the death penalty. While the
government filed a “Notice of Intent to Seek the Death Penalty” for
each of the three counts with respect to Davis and Hardy, the
government did not seek the death penalty with respect to Causey.
Davis and Hardy were convicted on all three counts; Causey was
convicted on counts one and two, and the jury was unable to render
g:\opin\96-30486.dis 89
a unanimous verdict with respect to Causey on count three, which
subsequently was dismissed without prejudice.
“There is, of course, no extrinsic evidence of what the jury
in this case actually thought. We have before us only the verdict
form and the judge’s instructions.” Mills, 486 U.S. at 381.
However, my reading of those parts of the record leads me “to
conclude that there is at least a substantial risk that the jury
was misinformed.” Id.During each of the separate penalty phases of Davis and Hardy,
the jury was instructed that it “must consider any mitigating
factors that may be present in this case.” The jury was permitted
to consider “anything about the commission of the crime or about
[the defendant’s] background or character that would mitigate
against the imposition of the death penalty.” Specifically, the
jury was told that the defendant relied upon the mitigating factor
“that another person, equally culpable in the crime will not be
punished by death.” (emphasis added) This instruction permitted
the jury to take into account as a reason not to impose the death
penalty the fact -- if the juror found it to be so by the
preponderance of the evidence -- that other participants in the
killing would not be sentenced to death and executed, even though
they might be equally or even more responsible than the defendant
for the victim’s death. According to the jury instructions, “[t]he
law requires consideration of this mitigating factor to allow
g:\opin\96-30486.dis 90
juries to consider what is fair, considering all of the persons
responsible for an intentional killing, before imposing a sentence
of death.” Significantly, however, the jury also was instructed
that “[i]f even one juror finds a mitigating factor present which,
in that juror’s mind, is not outweighed beyond a reasonable doubt
by the aggravating factors proved, then the jury may not sentence
Hardy to death.” (emphasis added).
This panel has decided to reverse the convictions of Davis and
Hardy on count three, for lack of sufficient evidence, and to
affirm Causey’s convictions on counts one and two. Therefore, all
three defendants will stand convicted of only counts one and two.
However, Davis and Hardy have been sentenced to death, while Causey
has been sentenced to life imprisonment.
Given this disposition of the defendants’ appeals, we cannot
rule out the substantial possibility that, during the death penalty
deliberations with respect to Davis and Hardy, had the jury been
presented with the circumstances as they now exist, i.e., all three
defendants standing convicted on counts one and two, but not count
three, and only Causey having been spared from the death penalty,
that one or more jurors would have found by a preponderance of the
evidence with respect to Davis and Hardy that “another defendant or
defendants, equally culpable in the crime, [namely, Damon Causey,
would] not be punished by death.” If even one juror had found this
mitigating factor to be present in the penalty phase of either
Davis or Hardy, or both, and had further found the mitigation not
g:\opin\96-30486.dis 91
to be outweighed beyond a reasonable doubt by the aggravating
factors proved, then the jury could not have sentenced the
defendant to death in any penalty phase in which a single juror was
so influenced by the mitigating factor. “‘Because the
[sentencer’s] failure to consider all of the mitigating evidence
risks erroneous imposition of the death sentence,’” this case must
be remanded for resentencing. See Mills, 486 U.S. at 375 (quoting
Eddings v. Oklahoma, 455 U.S. 104, 117 (1982) (O’Connor, J.,
concurring)).
III. Conclusion
I join in the majority opinion for the reasons expressed
therein and for the additional reasons herein assigned.
g:\opin\96-30486.dis 92