concurring:
I join fully in the majority opinion and assign additional reasons for concurring.
I. The Defendants’ Convictions Under 18 U.S.C. § 242
The 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, 117 S.Ct. 1219, 137 L.Ed.2d 432 (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 *434interest, 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, 56 S.Ct. 391, 80 L.Ed. 555 (1936). See also Fed. R.Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 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 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.
B. United States v. Lanier
In United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (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 *435(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, 117 S.Ct. 1219, 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, 117 S.Ct. 1219.
Because § 242, in lieu of describing the specific conduct it forbids, incorporates constitutional guarantees by reference, which 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, 117 S.Ct. 1219. 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, 51 S.Ct. 340, 75 L.Ed. 816 (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, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954))).
In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (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 interpreting them.’ ” Lanier, 520 U.S. at 267, 117 S.Ct. 1219 (quoting Screws, 325 U.S. at 104, 65 S.Ct. 1031). “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, 117 S.Ct. 1219. 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, 94 S.Ct. 2253, 41 L.Ed.2d 20 (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, 91 S.Ct. 1999, 29 *436L.Ed.2d 619 (1971). Lanier, 520 U.S. at 268, 117 S.Ct. 1219. According to the Court, “[Disparate 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, 117 S.Ct. 1219.
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, 117 S.Ct. 1219.
“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, 117 S.Ct. 1219 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
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, 117 S.Ct. 1219 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). 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, 107 S.Ct. 3034 (quoting Screws, 325 U.S. at 105, 65 S.Ct. 1031). 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. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (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 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, 86 S.Ct. 1152.
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 *437which, beyond dispute, brings the conspiracy within the ambit of the Fourteenth Amendment.” Id. at 799, 86 S.Ct. 1152.
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 “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, 82 S.Ct. 243, 7 L.Ed.2d 136 (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 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, 65 S.Ct. 1031 (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’Neal, 728 F.2d 894, 898 (7th Cir.1984) *438(“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, 105 S.Ct. 104, 83 L.Ed.2d 48 (1984). See also, discussed in more depth below, United States v. Robinson, 503 F.2d 208 (7th Cir.1974), in which the rogue cop who killed Beard (of Beard v. O’Neal, 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, 117 S.Ct. 1219.
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, 107 S.Ct. 1337, 94 L.Ed.2d 187 (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).
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, 100 S.Ct. 93, 62 L.Ed.2d 60 (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).
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 *439that 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 821.1
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, 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.2
Similarly, in United States v. Lebron-Gonzalez, 816 F.2d 823 (1st Cir.), cert. denied, 484 U.S. 843, 857, 108 S.Ct. 135, 98 L.Ed.2d 92 (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:
[Ojne 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 col- or 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 protected constitutional right, and that an intentional violation of that right under color of law is proscribed criminal conduct under §§ 241 and 242.
D. 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, 117 S.Ct. 1219.3 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 re*440spect 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 conduct under color of law. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part on other grounds, Monell v. Department of Soc. Servs. of N.Y., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that the “under color of’ provision of 42 U.S.C. § 1983 applied 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, 81 S.Ct. 473. 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 a federal remedy where the state remedy, though adequate in theory, was not available in practice^]” id. at 174, 81 S.Ct. 473, the legislation has general and independent application regardless of the substance of state laws or the quality of them 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, 81 S.Ct. 473.
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, 81 S.Ct. 473. 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, 81 S.Ct. 473 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (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 of the count, and to certify the result of the election.’ ” Monroe, 365 U.S. at 183-84, 81 S.Ct. 473 (quoting Classic, 313 U.S. at 326, 61 S.Ct. 1031). “But according to the indictment they did not perform their duty.” Id. at 184, 61 S.Ct. 1031. The Monroe Court further noted that the Classic case’s view of the *441meaning of the words “under color of’ state law, in 18 U.S.C. § 242, was reaffirmed in Screws, 325 U.S. at 108-13, 65 S.Ct. 1031; 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 United States v. Williams, 341 U.S. 70, 99, 71 S.Ct. 581, 95 L.Ed. 758 (1951); that “[tjhe 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, 81 S.Ct. 473; 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, 81 S.Ct. 473.
The Supreme Court’s opinion in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), contains a short treatise on “under color of law” that contributes to fair warning that Len Davis’s conduct was 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[, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)] 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, 86 S.Ct. 1152 (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 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 sheriffs 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 *442presence 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, 96 S.Ct. 1505, 47 L.Ed.2d 760, cert. dismissed as improvidently granted, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (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 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 plaintiffs 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 ease is unlike a situation where a uniformed police officer, who is in a position to prevent violence, observes a murder without 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, 81 S.Ct. 473 (quoting Classic, 313 U.S. at 326, 61 S.Ct. 1031); 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, 65 S.Ct. 1031. 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, 65 S.Ct. 1031. 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 Cau-sey had adequate advance 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 *443authority 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 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, 117 S.Ct. 1219 (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 satisfied.” Id. at 271-72, 117 S.Ct. 1219 (internal citation omitted).4
*444Applying 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 “[bjecause 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 resen-tenced 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, 1204 (5th Cir.1976); United States v. Garcia, 821 F.2d 1051, 1053 (1987) (citing United States v. Tucker, 404 *445U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (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, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Therefore, “[t]he possibility that [defendant’s] jury conducted its task improperly certainly is great enough to require resen-tencing.” Id. at 384, 108 S.Ct. 1860 (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, 108 S.Ct. 1860 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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 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, 108 S.Ct. 1860. 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 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 *446possibility 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 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, 108 S.Ct. 1860 (quoting Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 71 L.Ed.2d 1 (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.
. The Fifth Circuit in United States v. Stokes, 506 F.2d 771 (5th Cir.1975), 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).
. 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.”
. 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).
. 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, 95 S.Ct. 1333, 43 L.Ed.2d 427 (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 *444McFerren, a witness in a state murder trial, with the money to be used to fund the "mil-krun.” 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. Id.
Another case with similar criminal conduct is United States v. Simon, 964 F.2d 1082 (11th Cir.1992), cert. denied, 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 476 (1993), in which the Eleventh Circuit affirmed the conviction under § 241 of a police officer who murdered a drug dealer after attempting to rob him in his home. As in Robinson, the Simon court did not discuss the "color of law” and "right protected” elements of § 241. However, the indictment defined the constitutional rights violated as the "rights to be secure in his person and property.” Id. at 1085.
In Simon, after an officer obtained consent to enter the victims’ residence by claiming to be investigating drug violations, the officer then called fellow officer Simon on the police radio and told him to come inside. Id. When Officer Simon could find no drugs or money in the house, he shot the drug dealer and his female companion in the back of the head because "he did not want to leave any witnesses behind because they were involved in an armed robbery.” Id.
Although the defendants in Robinson and Simon did not raise, and the courts did not address, the "color of law” or "right protected” elements of the criminal statutes, I cite these cases because the Seventh and Eleventh Circuits affirmed the criminal civil rights convictions of police officers whose conduct was similar to that in the cases before us. Because these cases all involve "rogue cops” who abused police authority for personal gain, and who were charged with criminal civil rights violations that resulted in death, I think these cases may give fair warning that the particular type of conduct at issue violates constitutional rights.