United States v. Davis

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 4, 2004

Charles R. Fulbruge III
Clerk
No. 03-30077

UNITED STATES OF AMERICA,

Plaintiff-Appellant-Cross-Appellee,

versus

LEN DAVIS,

Defendant-Appellee-Cross-Appellant,

PAUL HARDY, also known as P., also known as Cool,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before BARKSDALE, EMILIO M. GARZA, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Having been convicted in 1996 for a murder committed in 1994,

Len Davis and Paul Hardy were sentenced to death under the Federal

Death Penalty Act, 18 U.S.C. § 3591 et seq. (FDPA). On appeal, the

convictions for one of the three counts of conviction were vacated;

concomitantly, the death sentences were vacated; and the case was

remanded for a new sentencing proceeding, with death being one of

the possible sentences. United States v. Causey, 185 F.3d 407,

410-11 (5th Cir. 1999), cert. denied, 530 U.S. 1277 (2000).
 On remand, in the light of Jones v. United States, 526 U.S.

227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), United

States v. Cotton, 535 U.S. 625 (2002), and Ring v. Arizona, 536

U.S. 584 (2002), the district court held: the indictment’s not

including the required FDPA intent element and claimed aggravating

factor for substantial planning and premeditation (FDPA elements)

precluded a death sentence. Shortly before oral argument for this

appeal, our court decided United States v. Robinson, 367 F.3d 278

(5th Cir. 2004), which held FDPA aggravating factors’ not being

included in an indictment renders it constitutionally deficient,

but subject to harmless error review.

At issue is whether the harmless error standard of review

applies here because, unlike in Robinson, defendants have not been

sentenced. This issue requires deciding at what point error

attaches for the indictment’s not including the FDPA elements. We

hold the Robinson harmless error standard applies because, for the

unique procedural posture of this case, the error attached not at

sentencing but when the final superceding indictment was returned,

after the Government had given notice of its intent to seek the

death penalty. The error was harmless. VACATED and REMANDED.

I.

Kim Marie Groves was murdered on 13 October 1994 in New

Orleans, Louisiana, through the coordinated efforts of Davis,

Hardy, and Damon Causey. Causey, 185 F.3d at 411. Davis, then a

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New Orleans police officer, exchanged protection for favors with

Hardy, then a New Orleans drug dealer. One of Hardy’s favors, at

Davis’ request, was to murder Kim Groves.

Davis requested the murder because, on or about 10 October

1994, Kim Groves witnessed Davis’ police partner pistol-whip an

individual in her neighborhood. She filed a complaint against

Davis with the police department’s internal affairs office. After

Davis learned of the complaint at approximately 1:00 a.m. on 13

October, he contacted Hardy by telephone; they discussed a plan to

kill Kim Groves. Davis arranged to have Hardy and Causey meet him

at the police station in order to take them to her.

Throughout the day and into the evening, Davis, Hardy, and

Causey searched for Kim Groves. Eventually, Davis found her that

day and paged Hardy to describe her clothing and location. Davis

then called Hardy on his cellular telephone to order the murder,

and Hardy replied he was “on [his] way”. At approximately 11:00

p.m. on 13 October, Hardy shot Kim Groves in the head, killing her.

At the time he was planning the murder with Hardy and Causey,

Davis was unaware of his being the target of an undercover

investigation, including recording his cellular telephone

conversations. (The evidence at trial included these

conversations, together with the testimony of Davis’ police

partner, who was present during many of them.)

A one-count federal indictment in December 1994 (two months

after the murder) against Davis, Hardy, and Causey was followed by

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a three-count superceding indictment and a second superceding

indictment. In July 1995, pursuant to the FDPA, the Government

filed two notices of intent to seek the death penalty for Davis and

Hardy and included the requisite FDPA elements. See 18 U.S.C. §§

3592(c) and 3593(a).

In an August 1995 three-count, third superceding indictment

(the indictment), count one charged conspiracy to violate the civil

rights of Kim Groves and an unnamed individual by use of excessive

force, resulting in death, in violation of 18 U.S.C. § 241. Eight

overt acts, quoted infra in part II.B.2., were alleged in

furtherance of the charged conspiracy. Count two charged violating

Kim Groves’ civil rights by use of excessive force by shooting her

with a firearm, resulting in death, in violation of 18 U.S.C. §§

242 and 2. Count three charged willfully killing Kim Groves to

prevent her communications to a law enforcement officer regarding

a possible federal crime, in violation of 18 U.S.C. §§

1512(a)(1)(C) and 2.

Defendants filed numerous pre-trial motions, including many

contesting the legality and adequacy of the indictment. They never

asserted pre-trial, however, that the indictment gave them

insufficient notice of the charges. The motions were denied.

Their motions regarding the Government’s use of non-FDPA

aggravating factors were denied in part and granted in part. See

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United States v. Davis, et al., 912 F. Supp. 938 (E.D. La. 1996)

(Davis I).

Trial began on 8 April 1996; approximately two weeks later,

the jury returned a guilty verdict on all three counts against

Davis and Hardy. Causey was found guilty on the first two counts;

the jury was unable to reach a verdict on the third. At the

sentencing phase of trial, the jury was charged to decide whether

an FDPA “death qualifying factor” existed for either Davis or

Hardy. See 18 U.S.C. §§ 3592 and 3593(d). The jury found Davis

and Hardy: intentionally killed Kim Groves; and did so after

substantial planning and premeditation (the FDPA aggravating factor

included in the earlier-referenced notices of intent to seek the

death penalty, see 18 U.S.C. § 3592(c)(9)). Accordingly, the

district court conducted a capital sentencing hearing. See 18

U.S.C. § 3593(e). At that hearing, the jury decided the death

penalty was appropriate. Thereafter, Davis and Hardy were

sentenced to death; Causey, to life imprisonment.

On appeal, our court affirmed the convictions for all three

defendants for counts one and two but vacated them for count three

for Davis and Hardy (as noted, Causey had not been convicted on

that count). Causey, 185 F.3d at 410-11. Davis and Hardy’s death

sentences were vacated because it was impossible to conclude that

the jury recommended the death penalty on the basis of counts one

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and two, but not three. The case was remanded for resentencing.

Id. at 423.

On remand, the Government again filed notices of intent to

seek the death penalty against Davis and Hardy. The Government

notified Davis of its intent to seek that penalty based on evidence

of intent, as required by the FDPA, see 18 U.S.C. § 3591(a)(2)(A)-

(D), the FDPA aggravating factor of substantial planning and

premeditation, see 18 U.S.C. § 3592(c)(9), and his prior conviction

for a drug offense that allowed imposition of a sentence exceeding

five or more years, see 18 U.S.C. § 3592(c)(12). (This notice was

amended to change Davis’ felony conviction from a FDPA aggravating

factor to a non-statutory aggravating factor.)

Utilizing the same FDPA elements, the Government also notified

Hardy of its intent to seek the death penalty. In addition, the

Government filed a notice of non-FDPA aggravating factors for both

defendants.

In response, Hardy moved to have the FDPA aggravating factors

declared unconstitutional. Each defendant filed numerous related

motions (including re-urging all previous ones). Hardy also moved

to prohibit retrial based on double jeopardy and to prohibit the

Government’s relying on his convictions on counts one and two as

evidence of his intent to murder Kim Groves. The district court

denied the first motion; it ruled the second moot because the

Government conceded that the verdict on those two counts was not a

6
finding by the jury that either Davis or Hardy had the specific

intent to murder.

Davis and Hardy appealed the district court’s not dismissing

on double jeopardy grounds. In April 2002, our court affirmed the

denial.

That July, Davis moved in district court for reconsideration,

based on Ring, 536 U.S. at 609 (holding that, “because Arizona’s

enumerated aggravating factors operate as ‘the functional

equivalent of an element of a greater offense’ ... the Sixth

Amendment requires that they be found by a jury”) (quoting

Apprendi, 530 U.S. at 494 n.19). Later, Hardy moved in limine to

preclude, inter alia, the Government’s seeking the death sentence.

These motions were granted in part and denied in part in

December 2002. The district court ruled that the indictment’s not

including the requisite FDPA intent element and claimed aggravating

factor precluded a death sentence: “[T]he right to grand jury

presentment is not waivable and has not been waived. Jeopardy has

likewise indisputably attached to the convictions already rendered.

Under these unique circumstances ... the Fifth Amendment prohibits

further capital proceedings”. United States v. Davis, No. 94-381

(E.D. La. 12 December 2002) (Davis II).

II.

The Government concedes both the attachment of jeopardy and

the timeliness of the challenge to the indictment for failure to

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include the FDPA elements. Because jeopardy has attached, the

Government is, of course, precluded from re-indicting Davis and

Hardy. On this record, the linchpin to the Government’s appeal is

the applicable standard of review for the indictment’s not

including the FDPA elements. (Davis has withdrawn his cross-appeal

contesting our jurisdiction.)

A.

As noted, the district court held that Ring, in conjunction

with Cotton, Apprendi, and Jones, requires an indictment to charge

the FDPA elements necessary for the death penalty. Jones, 526 U.S.

at 250-52, held that provisions of a carjacking statute,

establishing higher penalties when the offense resulted in serious

bodily injury or death, provided additional elements of the

offense, not sentencing considerations. Apprendi, 530 U.S. at 490,

later held that any fact (other than a prior conviction) that

“increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to the jury, and proved beyond a

reasonable doubt”. Applying Jones and Apprendi, the Court in

Cotton, 535 U.S. at 634, held an indictment’s not including any

allegation regarding the quantity of drugs involved in enhancing

sentences beyond the statutory maximum was error; but, where there

was no timely objection at trial, this error did not affect

substantial rights where the evidence of quantity was “overwhelming

and uncontroverted”. Most recently, Ring, 536 U.S. at 609, held an

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Arizona statute permitting the judge to determine whether

aggravating factors necessary for the death penalty are present

violates the Sixth Amendment right to trial by jury.

The district court held: the “addition of Ring to the rules

set forth in Jones and Apprendi compels the conclusion that in a

federal capital case, the grand jury must both find the FDPA intent

and [aggravating] factors upon which the death penalty is premised

and must set forth those findings in the allegations of [the]

indictment in order to pass Fifth Amendment muster”. Davis II at

5. It concluded: the allegations for those necessary FDPA

elements are not found in counts one and two; and count three could

not be considered in evaluating whether the grand jury found

defendants willfully committed murder or engaged in concomitant

substantial planning and premeditation because the convictions for

this count had been vacated for lack of evidence. Davis II at 12;

Causey, 185 F.3d at 407. (In dictum, the court added it was

reluctant to conclude there was sufficient notice of substantial

planning and premeditation because, besides federal courts, only

two jurisdictions that impose the death penalty consider this an

aggravating factor warranting that penalty. Davis II at 13.)

The FDPA intent element not alleged in the indictment requires

finding a defendant

(A) intentionally killed the victim;

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 (B) intentionally inflicted serious bodily
injury that resulted in the death of the
victim;

(C) intentionally participated in an act,
contemplating that the life of a person would
be taken or intending that lethal force would
be used in connection with a person, other
than one of the participants in the offense,
and the victim died as a direct result of the
act; or

(D) intentionally and specifically engaged in
an act of violence, knowing that the act
created a grave risk of death to a person,
other than one of the participants in the
offense, such that participation in the act
constituted a reckless disregard for human
life and the victim died as a direct result of
the act.

18 U.S.C. § 3591(a)(2)(A)-(D).

The FDPA lists 16 aggravating factors, for which notice must

be provided, that may form the basis for a federal death sentence

for a homicide conviction. 18 U.S.C. § 3592(c). Examples of those

factors are: pecuniary gain; substantial planning and

premeditation; conviction for two felony offenses; and

vulnerability of victim. 18 U.S.C. § 3592(c)(8), (9), (10), (11).

As noted, the aggravating factor included in the notice of intent

to seek the death penalty, but not alleged in the indictment, is

“substantial planning and premeditation”, defined by the FDPA as

when “[t]he defendant committed the offense after substantial

planning and premeditation to cause the death of a person or commit

an act of terrorism”. 18 U.S.C. § 3592(c)(9).

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 The Government claims the indictment is not deficient if read

with maximum liberality. In its original brief, the Government

contended that the indictment includes “words of similar import” to

the missing FDPA elements, so that a “fair construction” of the

indictment must include them (quoting United States v. Vogt, 910

F.2d 1184, 1201 (4th Cir. 1990), cert. denied, 498 U.S. 1083

(1991), (quoting Finn v. United States, 256 F.2d 304, 306 (4th Cir.

1958))).

Shortly before oral argument here, however, our court decided

Robinson; it held: (1) “the government is required to charge, by

indictment, the statutory aggravating factors it intends to prove

to render a defendant eligible for the death penalty, and its

failure to do so ... is constitutional error”; and (2) this error

is subject to harmless error analysis. Id. at 284-85 (emphasis

added). In the light of Robinson, the parties were ordered to

provide supplemental briefing.

In its supplemental brief, the Government acknowledges

Robinson’s holdings; nevertheless, it insists maximum liberality,

not harmless error pursuant to Robinson, is the appropriate

standard of review for this case, given its unusual procedural

posture — Davis and Hardy have not been sentenced. According to

the Government, the constitutional error vel non will occur at

sentencing, not when the final superceding indictment was returned

by the grand jury. A fortiori, it posits, as the district court

11
noted in dictum, that harmless error analysis cannot apply because

no error has been committed.

Davis and Hardy agree, observing: in Robinson, our court

reviewed, post-sentencing, the grand jury’s not including FDPA

elements in the indictment; here, Davis and Hardy’s death sentences

having been vacated, they are, in effect, awaiting sentencing for

the first time. Consequently, they claim permitting the Government

to seek the death penalty, knowing the indictment to be

constitutionally deficient, would be tantamount to sanctioning the

commission of error, but holding prospectively that it will be

harmless.

No authority need be cited for the well-established rule that

we, not the parties, determine our standard of review. For the

unique procedural posture of this case, and contrary to the

parties’ positions, constitutional error arising out of the FDPA

elements’ not being in the indictment attached prior to sentencing.

On this record, because the Government, prior to the final

superceding indictment, provided notice of intent to seek the death

penalty under the FDPA, error occurred when that final indictment

was returned without the requisite FDPA elements.

The attachment of Indictment Clause error at this point,

rather than later at sentencing, is reflected in the Fifth

Amendment. “No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of

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a Grand Jury....” U.S. CONST. amend. V. “[H]eld to answer for”

does not refer only to sentencing, but rather to having to defend

against the charged crime. Whether defendants have been sentenced

is not determinative for the indictment’s constitutional

sufficiency vel non.

It can be urged, of course, that an otherwise sufficient

indictment without FDPA elements is not deficient; that it is

sufficient for a non-death penalty offense. For example, United

States v. Stewart, 306 F.3d 295 (6th Cir. 2002), cert. denied sub

nom. Benford v. United States, 537 U.S. 1138 (2003), held an

indictment’s not including the drug quantity forming the basis for

a greater sentence, although constitutional error, was not

reversible plain error. In so doing, it concluded the Indictment

Clause error attached at sentencing.

We also emphasize that the constitutional
error likewise does not lie in the indictment
itself.... Thus, it would be imprudent for
defense counsel to object to an indictment
which, by all rights, is facially sound....

Instead of objecting to a valid indictment ...
the proper time for a defendant to raise a
challenge to his sentence is at the time the
actual violation occurs –– sentencing.

Id. at 310. The court reached this conclusion in a case, unlike

here, where the Government did not provide pre-trial notice of its

intent to seek the greater sentence. Id. at 325.

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 Where, however, as in this case, there is an operative notice

of intent to seek the death penalty under the FDPA and that notice

has been provided prior to the final superceding indictment, an

otherwise sufficient indictment is caused by the earlier notice to

be constitutionally deficient; there is no reason to conclude the

error does not attach until sentencing. For this unique case, the

proper focus in examining Indictment Clause error is not at

sentencing but earlier when the final superceding indictment is

returned (which, again, was post-notice of intent to seek the death

penalty).

Obviously, the focus of our Indictment Clause inquiry is not

on the petit jury’s verdict, but rather on the grand jury’s

charging decision for the indictment. (As noted, the Government

concedes that defendants’ objection at sentencing was timely. The

final superceding indictment was returned in 1995, before Jones,

Apprendi, Cotton, or Ring.) On the other hand, it bears reminding

that, imposition of the death penalty is determined by the petit,

not grand, jury. For purposes of assessing an indictment’s

constitutionality, there is no substantive difference in doing so

when, as here, the Government is seeking the death penalty as

compared to when it is seeking to preserve a death penalty

conviction. For the penalty to be imposed, the petit jury must be

presented with, and must find beyond a reasonable doubt, the FDPA

elements. That is what the petit jury did in Robinson, 367 F.3d at

14
289 (and likewise what the petit jury did here, before the

conviction was vacated in part, Causey, 185 F.3d at 407). On

remand, if the death sentence is to be imposed, the charge to the

petit jury will again include the FDPA elements; those elements

must be found beyond a reasonable doubt.

Along this same line, we ordinarily do not review this type of

Fifth Amendment challenge until post-sentencing; usually, that is

when we have jurisdiction. Here, however, our jurisdiction derives

from the district court’s effectively dismissing the indictment to

the extent that it would permit a death penalty. Therefore, our

court has jurisdiction under 18 U.S.C. § 3731, permitting review of

an order dismissing an indictment. Section 3731 is to be liberally

construed, see United States v. Wilson, 420 U.S. 332, 337 (1975);

and our court has recognized it as authority for our jurisdiction

over a district court order striking death as a permissible

sentence, United States v. Woolard, 981 F.2d 756, 757 (5th Cir.

1993) (“There is little question but that the district court’s

ruling was in every practical way as much of an alteration from the

grand jury’s charge as the striking of predicate acts and

forfeiture allegations. The district court effectively removed a

discrete basis of criminal liability.”). Indeed, our court has

recognized jurisdiction under § 3731 over an order dismissing the

death penalty where the FDPA elements were not included in the

indictment. United States v. Frye, 372 F.3d 729, 733-34 (5th Cir.

15
2004) (vacating district court’s holding constitutional speedy

trial delay precluded seeking death penalty).

B.

As noted, post-Robinson, the Government continues to urge

reviewing the indictment with maximum liberality. We are bound,

however, by our court’s precedent. E.g., United States v. Walker,

302 F.3d 322, 325 (5th Cir. 2002). Pursuant to Robinson, our

binding precedent, failure to present the FDPA elements to the

grand jury for consideration in its charging decision, but

nevertheless seeking the death penalty, was constitutional error.

See Robinson, 367 F.3d at 284. Accordingly, we must decide whether

that error was harmless. See id. at 285.

Robinson describes the test for harmless constitutional error

announced in Chapman v. California, 386 U.S. 18 (1967), focusing on

whether the error affects substantial rights. Robinson, 367 F.3d

at 284-85. This is accomplished by examining two of the primary

functions of an indictment: (1) providing the defendant notice of

the crime charged, thereby allowing him to prepare a defense, and

(2) “interpos[ing] the public into the charging decision, such that

a defendant is not subject to jeopardy for a crime alleged only by

the prosecution”. Id. at 287.

1.

The requisite notice was provided to Davis and Hardy, albeit

not by the indictment. As discussed, in July 1995, prior to the

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August 1995 final superceding indictment and well in advance of

trial in April 1996, the Government provided individualized notice

to them of its intent to seek the death penalty on conviction on

any count, and identified the applicable FDPA elements to establish

death-eligibility under the FDPA. After the sentences were

vacated, the Government again provided specific notice of its

intent to seek the death penalty, again identifying the relevant

FDPA intent element and the aggravating factor of substantial

planning and premeditation.

2.

The next question is whether Davis and Hardy’s substantial

rights were affected by “losing the right to have the public

determine whether there existed probable cause to charge the

[required FDPA] factors” that would be used to sentence them.

Robinson, 367 F.3d at 287. This is answered by deciding “whether,

on the basis of the evidence that would have been available to the

grand jury, any rational grand jury presented with a proper

indictment would have charged that [Davis and Hardy] committed the

offense in question”. Id. at 288.

Considering the overt acts alleged in the indictment returned

by the grand jury, there is no doubt that a rational grand jury

would have found probable cause that the FDPA intent element and

substantial planning and premeditation aggravating factor were

present, had those elements been presented to it.

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 As discussed, the two remaining counts of the indictment

charged Davis and Hardy with conspiracy to violate the civil rights

of Kim Groves and an unnamed individual by use of excessive force,

resulting in death, and with violating Kim Groves’ civil rights by

use of excessive force by shooting her with a firearm, resulting in

death. For count one, the indictment alleged the following overt

acts:

1. After learning that Kim Marie Groves had
filed a civil rights complaint against him,
defendant [Davis] contacted defendant [Hardy]
on several occasions by cellular telephone on
or about October 13, 1994, to arrange the
murder of Kim Marie Groves.

2. On or about October 13, 1994, defendant
[Davis] contacted defendant [Causey] by
cellular telephone to arrange a meeting
whereby defendant [Davis] would identify Kim
Marie Groves to defendants [Hardy and Causey]
thereby facilitating the murder of Kim Marie
Groves.

3. On or about October 13, 1994, defendant
[Davis], while on-duty and while using his
official police car, conducted surveillance of
Kim Marie Groves for the purpose of reporting
Groves’ physical description and location to
defendant [Hardy].

4. On or about October 13, 1994, at 10:01
p.m., defendant [Davis], during a cellular
telephone conversation, ordered defendant
[Hardy] to “get that whore,” thereby ordering
the murder of Kim Marie Groves. Defendant
[Hardy] agreed to kill Kim Marie Groves and
stated in response, “Alright, I’m on my way.”

5. On or about October 13, 1994, at 10:55
p.m., defendant [Hardy] shot Kim Marie Groves
in the head with a 9 mm firearm, which
resulted in her death.

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 6. Defendant [Causey] did conceal the 9 mm
firearm used to kill Kim Marie Groves by
hiding the firearm in a chest-of-drawers in
his bedroom, located at 3930 Florida Avenue,
Apartment B, New Orleans, Louisiana.

7. On or about October 14, 1994, [Davis], in
a cellular telephone conversation, spoke with
[Hardy] about killing the [unnamed] individual
and [Hardy] replied that he wanted to kill the
person that night. [Davis] asked [Hardy] to
“hold off” killing that individual that night
because it would be “too suspicious.”

8. On October 17, 1994, [Davis] told [Hardy]
in a cellular telephone conversation, that
there was no need to kill the other known
individual unless he was persistent in
complaining against [Davis]. [Davis] added
that if the individual complained about
[Davis], it would be “Rock-A-Bye, Baby”
(death) for the person.

These overt acts do not explicitly include the FDPA intent

element or the substantial planning and premeditation aggravating

factor. Obviously, these FDPA elements are consistent with these

alleged overt acts. No rational grand jury could allege these

overt acts, but fail to allege the specific intent to kill and

concomitant substantial planning and premeditation.

As a result, these elements’ not being included in the

indictment did not affect Davis and Hardy’s substantial rights.

Accordingly, the error is harmless.

III.

For the foregoing reasons, the order precluding the Government

from seeking the death penalty against Davis and Hardy is VACATED;

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this case is REMANDED for sentencing proceedings consistent with

this opinion.

VACATED and REMANDED

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