United States v. Damon Causey, United States of America v. Paul Hardy, Also Known as P, Also Known as Cool and Len Davis

Dixon on Jan- The doctor who examined C. uary opined that he not able sum, rely In court district cannot employment even function in normal expert testimony the inadmissible that he consider retirement so suggested Dixon to appreciate wrongdo- was able minimize contacts. The doctor as to social ing at the time of the criminal conduct day Dixon the after his who examined determining insanity when whether an in- bipolar that he had a opined detention also struction is needed. The court erred to appeared “agitated, delusion- disorder the extent it relied on testimony Wolfson’s al, attorney and hostile.” Dixon’s had jury on the latter element to withhold the Dixon’s account of his Wolfson describe instruction. Shahan, jury from which a encounter with having infer that Dixon was delu- could We note that a court can still withhold him.16 feelings about Shahan’s toward sions insanity if it instruction concludes that relationship between a defendant’s light all inferences in the most Drawing history mental illness and his criminal con- Dixon, jury rationally favorable to explained duct not been has or examined that, based on clear could have concluded case, way. meaningful how- evidence from convincing Wolfson’s ever, the did cross-examination Wolfson description explication of the medical explain might how Dixon’s mental illnesses records, suffering Dixon was from a severe day have manifested itself on the he com- the time of the crime. mental illness at mitted his criminal and how acts these illness, through cross- explained This him might prevented illnesses have from examination, prevented have him could wrongfulness realizing the of his actions. wrong- conduct was knowing that his explanation Wolfson’s Dixon’s medical if, instance, truly in his ful he believed records, though ultimately even hostile to evening delusional account of his with Sha- interests, provided Dixon’s sufficient evi- han. jury question dence to create a on Dixon’s convincing” While the “clear and sanity. on the defen standard raises burden Therefore, and RE- REVERSE we jury instruction on insan dant who seeks Dix- grant MAND for the district court to ity, highest it does not “call for levels proceedings trial and for further on new Owens, proof.” 854 F.2d 432. Recall opinion. accordance with this ing that the must construe the evi court dence, inferences, and all drawn defendant, to the we

light most favorable require insanity instruction “[i]f

must to find to a permit

evidence would in

high probability defendant was ” .... sane Id. We observe that the Owens required jury instruction

court based diagnosis of the merely expert’s on an America, UNITED STATES psychotic “a who lose defendant as would Plaintiff-Appellee, reality.” touch with Id. at 436. We there application do not find our fore ap in conflict with the Owens standard CAUSEY, Defendant-Appellant. Damon

proach used Owens. instance, sought explained to see him 16. For Dixon later his sexual advances kept he Shahan wanted to again. doctor that believed that he her underwear He claims have a romantic encounter with him because gave and that he her a as a romantic souvenir of her dissatisfaction with her own relation- Day. card for Valentine's ship. encouraged He also that she claimed America, States

Plaintiff-Appellee, P, Hardy, also

Paul also known Cool; Davis, Len

known as

Defendants-Appellants. 96-30486, 96-31171.

Nos. of Appeals, Court

United States

Fifth Circuit.

Aug. McMahon,

Michael Edward Assistant Jordan, Jr., Attorney, U.S. Eddie J. New LA, Orleans, Plaintiff-Appellee. for Julien, Jr., Julien, Henry Philip Julien & Orleans, La, Causey. for New Larson, Jr., Orleans, Herbert V. New LA, for Hardy. Creech, Fanning,

Patrick Archie B. New LA, Orleans, for Davis. DeMOSS, PARKER and

Before DENNIS, Judges. Circuit PARKER, Judge: ROBERT M. Circuit Causey appeals Damon Appellant resulting life sentence convictions and 241, conspiracy § 18 U.S.C. violation § cating and 18 U.S.C. information to a federal law enforce- against rights civil law. rights relating under color of ment officer deprivation commission (Count ap- Davis Appellants Hardy Paul and Len alleging a federal offense viola- 1512(a)(1)(C) 2). convictions and death peal respective §§ their tion of 18 U.S.C. § for violation of 18 U.S.C. Government, sentences with the accordance civil conspiracy against rights, U.S.C. Penalty Federal Death Act of 1994 under color of deprivation (FDPA), a Notice of filed Intent to Seek 1512(a)(1)(c), law witness and 18 U.S.C. the Death Penalty against Davis and Har- tampering. 3593(a). dy. See 18 U.S.C. Causey’s affirm convictions and sen- We began April Trial 1996. The evi- Davis’s con- tence. We reverse telephone dence included recorded conver- tampering, for witness affirm their victions among sations defendants before §§of 241 and convictions for violation murder, during after they vacate their death sentences and remand planned and attempted to hide their in- their cases to the district court for resen- volvement the crime. The recorded tencing. interceptions phone of Davis’s cellular con- pursuant versations were obtained to a 1. FACTS AND PROCEDURAL investigation suspect- court-authorized HISTORY drug protection ed racket run Davis appeal This is a direct from convictions corrupt and other New police Orleans offi- execution-style arising from the murder of predicate cers. The context of and for the Davis, Kim Marie Groves. a New Orleans tapes by testimony were established from officer, targeted because she police Groves Williams, police partner Sammie Davis’s complaint against a Davis with the filed present during who was car (“IAD”) of the Internal Affairs Division many taped of the conversations. Steve Department alleging Police New Orleans Jackson, getaway who drove the car for police brutality. Davis engaged he Hardy, also testified for the Government. relationship Hardy, a a New had Or- 24, 1996, April jury On returned a dealer, drug leans which Davis ex- guilty against verdict of on all three counts changed police protection for favors. Hardy. Causey Davis and was found Hardy Hardy’s and associ- Davis recruited guilty jury on Counts 1 and 2. The could Davis, Causey Hardy ate to kill Groves. and the court reach verdict district Causey planned and the murder and sub- 3 as to Cau- declared mistrial Count Hardy sequent coverup. trigger- was the sey. man who killed Groves. 25, 1996, April sentencing hearings On Davis, Hardy charged and were required by the FDPA for Davis and Har- injure, conspiracy indictment with dy began jury front of the same oppress, and intimidate Groves threaten trial. guilt phase had heard the of the right and another individual in the to be participate Davis refused to in or attend force free the use unreasonable hearings. sug- theOn Government’s acting one under color of law and Hardy were exam- gestion, both Davis provide information to law en- by psychiatrist, who concluded that ined forcement authorities about a federal competent proceed. both crime, alleging eight overt acts in further- (Count 1, conspiracy alleging part penalty phase ance of the The first of the re- 241); § quired jury findings with the to make on intent violation 18 U.S.C. statutory aggravating civil and on the factors substantive violation Groves’ (Count 2, Hardy. No new alleging alleged against violation of 18 U.S.C. Davis 2); during part § 242 of the killing and with Groves with evidence was taken re-introduced prevent hearing. the intent to her from communi- The Government sufficiently outweighed factors during guilt vating admitted all the evidence justify a of death. mitigation that Davis inten- sentence jury found phase. The act, contemplat- in an tionally participated Hardy were each sentenced Davis person would be taken ing that the life of 6, 1996, to concurrent death on November used, and the or that lethal force would all counts of the third penalties as to three act, of his as a direct result victim died On November superseding indictment. to the factor set out 18 U.S.C. pursuant 1996, Causey was sentenced to two concur- 3591(a)(2)(C). jury similarly found The life terms. All three defendants filed rent victim, intentionally killed his timely appeal, which are consoli- notices satisfying the intent element de- thus dated before this court. 3591(a)(2)(A). The at 18 scribed U.S.C. Hardy com- jury found that Davis and also 2. JURY SELECTION plan- the offense after substantial mitted Causey, Hardy allege and Davis consistent with ning premeditation, peremptory its Government exercised statutory factor set out at aggravating manner, discriminatory in a so as strikes 3592(c)(9). jury, howev- 18 U.S.C. African-Americans, particularly to exclude er, finding could not reach a unanimous females, jury. African-American from the factor statutory aggravating to the other All three defendants are African-Ameri- alleged against Hardy, involving Davis and males, and the victim was an African- can pecuniary gain. seventy in- American female. There were portion penalty hear- The second jury pool left in the after chal- dividuals non-statutory aggra- ing, which focused on lenges for cause. The Government was proceeded seriatim. mitigation, vation and and the de- peremptory allowed strikes April returned its On fendants, collectively, 26. The Govern- position as a finding that Davis used his peremptory ment used nine of its strikes affirmatively participate in police officer to females challenge African-American seriously jeopardized conduct African-American challenge and two to safety persons health and of other and female was males. One African-American posed dangerous- Davis a threat of future petit jury. seated on the twelve-member safety per- to the lives and of other ness selected, three were Of the four alternates sons, recommending a sentence of death. (one male, African-Americans two fe- Hardy’s penalty half The second males) and one was a white male. later, phase began days April two on seated, jury After the the defen- 1, 1996, May jury found the 1996. On on Batson v. dants asserted claims based non-statutory aggravators that he commit- Kentucky, 476 U.S. participated ted or additional violent (1986), progeny. The L.Ed.2d 69 and its poses that he a threat of future acts and district court held that defendants had not safety of dangerousness to the lives and prima made out a facie case of discrimina- Additionally, jurors four found the others. tion, but nonetheless instructed Gov- Hardy factor that was aban- mitigating reason ernment to articulate a race-neutral father and had no by doned his natural challenged There- for each of the strikes. life; jurors figure in his two suitable male after, that the the district court held Gov- family in an Hardy and his lived found race-neutral, and ernment’s reasons environment; abnormally violent all twelve challenges. Batson denied defendants’ abused and jurors found contains an ex subjected during his formative “When the record to violence by planation government’s peremptory for the years that he had been traumatized ‘only will challenges, and friends. this Court review family the death of members Nonetheless, finding of the ultimate of dis jury unanimously propriety found ” Perkins, crimination.’ United States v. beyond aggra- that the reasonable doubt (5th LAW” Cir.1997)(quoting UNDER “COLOR OF

105 F.3d Forbes, 816 F.2d States Defendants were all convicted for viola- Cir.1987)). Moreover, the dis (conspiracy of 18 tions U.S.C. ques on the ultimate trict court’s decision against rights) and 242 (deprivation of finding, is a fact tion of discrimination law). rights under color of Section 241 deference. Id. great which is accorded provides, part: in relevant Hardy concedes that the Government’s persons conspire If two or more to in- reasons were race-neutral and articulated threaten, jure, oppress, or intimidate challenges are without the Batson any person in ... free exercise precedent. Fifth merit under Circuit any privilege or him secured to However, that our standard of he contends or laws of the United Constitution objects to the review is too deferential States, having or because of his exer- exercising subjective use of factors when cised the same ... panel strikes. This is bound peremptory Hardy’s criti- precedent the circuit They shall be fined under this title or him nothing. of it avail cisms years, imprisoned not more than ten or both; if death results from the acts alleges Davis that the selec- Government ... committed violation of this section jurors tively questioned African-American they shall be fined under this title and their religious about their views and used strikes; years, imprisoned any that the term of or for responses as the basis of life, African-Americans for may Government struck or be sentenced to death. jurors to white applied reasons that who provides, 241. Section 242 U.S.C. struck; were not and that the Govern- part: relevant “non- ment’s articulated reasons were Whoever, under color of stat- Causey quantifiable.” complains ute, ordinance, custom, regulation, or articulated reasons were not Government’s credible, subjects in- ... quantifiable internally willfully any person Further, im- deprivation rights, privileges, consistent. characterizes selection as focused protected Government’s munities secured or eliminating African-American women laws of the United Constitution to the erroneous and racist view that States, due punishments, or to different likely acquit Afri- they would be more penalties, or on account of such pains, males, on the fact alien, can-American based by reason of person being an or acquitted Simpson that the that O.J. color, race, prescribed than are his or included nine African-American females. citizens, shall be punishment for the imprisoned not fined under this title or discriminatory intent is Unless ... if year, than one or both more prosecutor’s explanations, inherent the acts committed in death results from reasons offered will be deemed race- ... of this section shall be violation Elem, neutral. See Purkett v. 514 U.S. title, imprisoned under this or fined 768, 1769, 765, 115 S.Ct. 131 L.Ed.2d 834 life, may years or for be any term of (1995). explanations The Government’s death. sentenced to race-neutral and not outside the were § 242 an § contains 18 U.S.C. While credibility. “great realm of Under requirement deprivation express review, affirm deference” standard of we law,” § 241 does not. “under color of the district court’s assessment of the Gov However, § 241 has construed to re- been explanations ernment’s for the exercise See, e.g., action. United States quire state peremptory its strikes. See United States (5th 806, 2 Perkins, 976, F.2d 808 & n. Tarpley, v. 945 v. 105 F.3d 979 Cir. Cir.1991). 1997).

414 wrongdoer clothed with the Hardy challenge cause the is

Causey, Davis and law, 2, alleg- authority of state is action taken on their convictions Counts state law. supported by suffi- “under color of’ ing they were not acted the defendants cient evidence Classic, 325-26, 313 U.S. at 61 S.Ct. 1031. “color of law.” The verdicts must under States, 91, In v. 325 U.S. Screws United trier of be sustained unless reasonable 1031, (1945), 89 L.Ed. 1495 of law” fact not have found the “color could of a man beating involved the death beyond a element reasonable doubt. Unit- officers, enforcement the Su- some law Williams, 1055, F.3d ed States v. preme again found action under col- Court (5th Cir.1998). because the defendants had making “color” of law in argue that the offense did under [a]cted Defendants and in assault- genesis in Davis’s the arrest of [the victim] not have its They him. officers of the law They point out that the evidence were duties. By complaint IAD who made the arrest. their own established that Groves’s they [the victim] Davis was unfounded and that admissions assaulted against protect keep about him. themselves and to angry Davis was she lied order prisoner escaping. friend their It was Davis then called duty Georgia law anger. vindicate his Defendants note that their to make Hence, “totally using arrest effective. their con- they surreptitious” police vehicle and Davis’s status as a duct comes within the statute. They to commit crime. police officer Screws, 107-8, 325 U.S. S.Ct. 1031. “personal” characterize the murder as Supreme Court held that “acts of opposed to “official” and therefore contend perform who their officers undertake were not committed under the crimes official are the defi [within duties included “color of law.” law1], they nition of ‘under color of whether authority hew to the line of their or over are question The statutes Reconstruc- 111, step it.” Id. at 65 S.Ct. 1031. How making Era civil statutes it tion ever, the “acts of officers the ambit of deprive person rights pro- criminal to are exclud personal pursuits plainly their tected the Constitution or laws of the Maryland, ed.” Id. In v. 378 U.S. of law. United States under color See Griffin (1964), L.Ed.2d 754 Price, v. 801- United States explained further Supreme Court 16 L.Ed.2d 267 possessed state “[i]f individual is (1966)(setting origins out the of statutes authority purports to act under that 1966). history through from 1866 their It authority, his action is state action. ample guidance we have Consequently, might irrelevant that he have taken concerning from the Court Supreme purely pri same action had he acted proper interpretation phrase “color capacity.” vate Id. at 84 S.Ct. 1770. Classic, of law.” United States 299, 1031, U.S. 61 S.Ct. 85 L.Ed. 1368 Price, 787, In United States v. 383 U.S. (1941), Supreme the Court found state (1966), 267 16 L.Ed.2d who altered ballots were election officials deputy Mississippi in released three sheriff acting under color of state because then prisoners night, the middle of the intercept and alleged appellees proceeded the acts of were com- follow them them from their car perfor- mitted in the course of their them. He removed mance the Louisiana and them in his car and took placed of duties under official location, they requiring statute them to count the bal- them to a deserted where lots, count, policemen met two other and fif- to record the result of the were individuals, who, certify private acting the result of the election. teen to- and to by virtue of The power, possessed gether, Misuse of killed the three victims. defendants, all in- possible only state law and made be- Court found that

415 Price, citizens, prohibited action. See acting Davis private eluding 86 S.Ct. 1152. 383 U.S. of law because under color made joint adventure the brutal that Davis jury The heard evidence and calculat- detention authority state official possible misused or abused his by an officer prisoners carrying covering up out and planning, ed release of 13, 1994, Davis, action, clearly attrib- October This murder. On the State. police partner with his Sammie State, along of the part utable to the Williams, who testified for the Govern by the in- design described monstrous ment, p.m. their shift 2:30 began around participated officers dictment. State shift, paged Hardy Davis During that alleged venture: every phase of the Causey, plan with them his discussed jail, interception, as- release killed, have Groves met with them and murder. sault station, police then took them in his police Price, U.S. at 383 them the area that Groves car to show F.2d Tarpley, 945 In States Davis’s voice frequented. The heard (5th Cir.1991), that a this court held Williams, “I ‘P’ to telling get could tape acting under color of deputy sheriff was comq we do that ‘hoe’ now. And then his wife’s former when he assaulted law thirty.”2 testified handle Williams jealousy in the defen- personal out of lover meant that Davis would that the statement explained, the Groves, home. The Court dant’s then Davis get Hardy would kill authority the en- pervaded official murder respond “air of would and Williams used because the defendant “handle” evidence that tire incident” scene and revolver, Hardy offi- to the crime. Later might fellow link his service summoned car, him, shift, patrolling police while help from the sheriffs station cers Hardy to paged Groves and po- spotted Davis special authority as claimed to have Hardy killed him location. give Groves’s officer, of town and ran the victim out lice duty shortly after Davis went off Groves car. Id. at 809. squad in a police radio to confirm and Davis used determining whether suffi mur police officer at the the hit with the the “under color supported evidence cient We conclude this evidence der scene. convictions, we are of law” element support finding that Davis is sufficient to determine, first, whether called on to power to or abused his official misused power, or abused his official Davis misused car, station, police police access Atkins, 42, 50, 108 see West v. execute, cover plan, police radio (1988)1 , second, L.Ed.2d 40 S.Ct. of a nexus up the murder. The evidence between the vic there is a nexus like whether and the crime is between that abuse tim, per improper conduct and Davis’s status as a Davis’s wise sufficient. duties, Tay Doe v. unique position of official see him in the put formance officer Dist., protec thirty” 452 n. and thus offer Indep. Sch. 15 F.3d “handle the lor Cir.1994)(en third, banc), consequences of Hardy whether from the tion to crime motive for the jointly engaged with the murder. Atkins, 42, 49, U.S. West v. point appellate deci 242. See out that 1. Defendants (1988)(noting money affirming dam L.Ed.2d 40 sions civil verdicts distinguish are ages acting under 42 U.S.C. under color definition of the traditional only support a evidence need able because the adopted in Classic had been of law articulated finding by preponderance of the evidence analysis). purposes of 1983 for stringent beyond a rea the more rather than applicable in doubt criminal standard sonable jargon for "Thirty,” New Orleans Police distinction, Keeping that matter. in mind homicide, corresponding to the Louisiana concerning analysis we nonetheless find meaning degree of first mur- Code definition Criminal language color of law” "under der, LSA-R.S. 14:30. at interpreta proper 1983 instructive §§ 241 language used in & the same tion of lodged by corruption, agree- which involved Davis’s complaint from a Groves arose protect drug shipments it for an capacity, in his official was ment against Davis major ability agent posing undercover FBI as a facilitated Davis case arousing drug importer. Although car without the district police the area expressly court excluded evidence re- suspicion and to offer assurance Finally, lating investigation, Hardy to the main- protection accomplices. to his Hardy way that and tains that it nonetheless made its into ample there is evidence deprived and him of a fair trial. Causey jointly engaged with Davis these evidence Therefore, Appel- actions. prohibited Hardy that wit- claims Government sufficiency challenges lants’ to the of the required nesses were to make references of law” fail. evidence on the “color element matters,” to “unrelated which could investigation. refer to the federal In addi- 4. REFUSAL TO SEVER FOR tion, partner, Davis’ tes- Sammie Williams SEPARATE GUILT PHASE tified that Williams and Davis became TRIALS partners because “it would be more conve- partners, given nient for us be the other Hardy argue and that their' things Finally, we were involved in.” cases should have been from severed at trial Williams described how Williams guilt phase Davis’ case for the of the trial. $16,000 split day on the Davis cash severance, Both filed for motions have Hardy murdered. Groves was claims preserved therefore error on this issue. this evidence indicated that in- Davis was a strong preference There is drugs Hardy volved in part trying togeth defendants who are indicted Thus, operation. jury may have joint iner trials. See v. United Zafiro in- Hardy concluded that Davis and were States, 933, 937, U.S. S.Ct. illegal operations Hardy volved in and that (1993). 122 L.Ed.2d 317 Severance should placate killed Groves to Davis. That infer- generally granted only be when there “is a ence appears to be true. Stated different- joint that a trial serious risk would com ly, replete the record is with evidence that promise specific properly trial of a Hardy engaged illegal Davis and joined prevent jury defendant or Hardy activities and that murdered Groves making judgment guilt reliable about placate continuing Davis and ensure innocence.” Id. at 938. The defendant police protection drug trafficking for his seeking severance must demonstrate a Indeed, and related violent offenses. “specific compelling prejudice re theory primary was the Government’s prejudice sulted an unfair trial and such directly trial. Evidence tied to the Gov- type against must be of a which the trial theory ernment’s on motive is relevant and protection.” court was unable to afford against With Hardy. regard admissible Pena-Rodriguez, United States v. 110 evidence of the “unrelated” federal investi- - (5th Cir.), denied, F.3d cert. gation, Hardy spe- concedes there was no -, U.S. 139 L.Ed.2d 32 investigation cific to that reference (1997). The denial of severance is re addition, guilt phase of the trial. viewed for abuse discretion. See United gave cautionary district court instructions Mulderig, States v. 120 F.3d requiring the to consider the evidence - Cir.1997), denied, U.S. -, cert. individually, against each defendant (1998). 1510, 140 L.Ed.2d 664 group.” not to “think of them as a Hardy district court’s refusal to sever as to prejudiced claims he was was not abuse of discretion. by spillover evidence that was not relevant prosecution. Specifically, Hardy Causey sought to his severance from both prejudiced by Hardy, claims he arguing evidence re Davis and he would lating investigation public prejudiced federal the conduct his more co-defendants, Improper comments argument. that the non-

culpable may reversible error prosecutor set him constitute prosecution his character of capital to a fair trial is right The dis- when the defendant’s other defendants. from the apart v. substantially role as Har- affected. United States Causey’s court held trict Anchondo-Sandoval, F.2d Causey an man” made dy’s “right-hand (5th Cir.1990). such error re conspiracy. Whether charged part of integral Causey quires depends upon magni reversal also held that district court The effect, prejudicial efficacy any compelling tude of the not demonstrated had any cautionary instruction and the consequence of of result as a would prejudice of the prosecu- strength of evidence defendant’s character of his non-capital Murrah, 888 F.2d guilt. United States v. tion. (5th Cir.1989). 24, 28 argument, that he Causey’s first trial testified Steve Jackson Hardy and by evidence of prejudiced was light his blue Maxima to the that he drove unavailing. As relationship is drug Davis’s trial, conflict murder scene. At there was sufficient evidence Hardy, with there was geta whether the concerning evidence illegal activities tying Causey to Davis’s after the murder way leaving car observed refusal to sev the district court’s support Davis champagne light blue. posi that his Causey complains also er. improperly offered prosecutor claims the the venire members of particular tion on testimony on is prosecutor’s own this certain trial deci respect and with panel by stating: sue weight because of given less sions was prosecution. non-capital nature of Well, vehi- champagne-colored I have a African- many Causey claims cle, beige, and in cer- which is metallic jurors because of their American excluded night, conditions at it looks lighting tain have penalty would on the death views lights Trust me. The light like blue. him. further acceptable to been poor in that Ninth very good are not of his deprived that he was claims neighborhood. Ward as a protection clause equal under the argu- lodged objection Davis defen joint capital trial with result of his ment, with- the district court continued but dants. cautionary instruction. issuing out rejected the has Supreme The Court related to the Another issue at trial can non-capital defendant argument that a night on the tapes recorded jointly a fair trial when tried not receive murder, inadvertently been which had See Buchanan capital defendants. Orleans Police. over New recorded 402, 418-419, 107 S.Ct. Kentucky, 483 U.S. argued there was some- Defense counsel (1987). Thus, Cau- 97 L.Ed.2d 336 absence of the suspicious about the thing per one of se error. We sey’s claim is not responded prosecutor The tapes. any specific compromise of perceive no argument by stating: danger that right trial nor tape that nothing on that 911 There was reaching a rehable prevented from you away the force of what would take therefore Causey’s ease. We verdict It’s a smokescreen. heard. abuse the district court did not hold that unflattering charac- objects to Davis also denying Causey’s motion its discretion prose- the defendants terizations of for severance. “an called prosecutor The cutor. re- prosecutor of the street.” animal MISCONDUCT 5. PROSECUTORIAL killer, a ruth- “a street ferred to Davis as objects to the Davis also person.” maintains his less Davis the O.J. statements about by the substantially prosecutor’s affected fair trial was closing case: improper remarks prosecutor’s that “in forget conspiracy game,” explanation

You can about the and Jackson’s coast, fly “in theory. may game” selling drugs, That on the west that the meant here, fly robbing, it going killing people. it’s not to because Davis also challenges makes no sense. the admission of tes- Williams’s timony, which may have allowed the objects following Davis also remark that to deduce Davis and Williams were in made in rebuttal: drug together. the business happened day what on that that [B]ut to woman, poor a citizen of the United Appellants argue that the introduction States, happened should not have in this (1) of these items was extrinsic evidence of country. Maybe in somewhere else not (2) offenses, other probative only the United States. Because what the (3) character, defendants’ bad irrelevant to you proved evidence showed what we (4) offenses, any highly element of the through very voices of those defen- prejudicial. Federal Rule of Evidence dants was the existence of a death 404(b) prohibits the admission of “other Orleans, Louisiana, in squad New wrongs prove crimes or acts ... state of Louisiana. character of a person order to show Finally, objects Davis to the following However, ar- conformity action in therewith.” gument closing: made in proof such is admissible to establish mo- tive, intent, opportunity, preparation, plan

[Tjoday we are a court of law in the 404(b). knowledge. America, See Fed.R.Evid. ju- United States of the finest system dicial in the world. It’s time for During Jackson, cross-examination of justice. stop killing, It’s time to defense counsel asked whether defendant stop carnage. way There’s one Hardy was a friend of Jackson’s. Jackson case, get justice in ladies and replied: gentlemen, and that’s to bring back a his, I’m a friend of but he’s not to be guilty every verdict of on each and one people trusted. He done killed seven gentlemen. these neighborhood, from the neighbors, seven lodge contemporaneous Davis did not ob- then neighborhood. killed another jections any except of the remarks those The district court admonished the witness relating to getaway the color of the car. questions testify answer the and to This Court’s review of the latter remarks knowledge, his own not what he knows plain only. therefore error from someone else. Davis claims Jack- record, reviewing After we conclude son’s comment was non-responsive and that error in the prosecutor’s closing highly prejudicial. argument require does not reversal due to overwhelming guilt evidence of Davis’s Jackson also testified that he had seen negligible prejudicial and the affect of the Hardy together Davis and presence remarks in the context of this case. See guns drugs, Causey “in Murrah, 888 F.2d at 28. game” “in game” and that meant that Causey in dealing drugs, was involved rob- 6. EVIDENTIARY RULINGS bing killing people. Williams testified Hardy that Davis had told Williams 6a. “Other evidence offense” drug was a dealer who “looked out for” Hardy challenge Davis and the admis- Davis and that he had heard Steve Jack- testimony sion of Steve Jackson’s that de- son was a Hardy’s drug dealing member of murders, Hardy fendant committed other “crew.” dealer, Hardy drug awas and that Hardy possessed many guns. Davis and The Government introduced evidence of Causey challenge the admission of belonging Jack- other firearms testimony son’s that defendant was were seized as the result of various search Nonetheless, at trial. proven issues to be Davis’s and argues Davis warrants. Stanley Hadden testified that agent and FBI drugs involvement Hardy’s mutual were Similarly, telephone conversations taped case. to this is immaterial guns than the an “unrelated” weapon other as the result of that no obtained argues he to the Gov- claim was relevant Defendants weapon investigation. federal murder requiring a prejudice case. unfair they ernment’s suffered new trial as a result. Hardy’s and to Davis’s regard With affiliation, the district weapon and drug to testimony presented was This Davis’s and to trial that prior ruled court proper which were tapes, authenticate relevant activities were Hardy’s joint drug Any from resulting prejudice ly admitted. Hardy solicit why Davis would to establish to the federal references non-specific murder. to commit complained defendants investigation weap- of other to evidence regard With to warrant reversal. was insufficient evi- ons, that such court ruled the district to relief on are not entitled Defendants Hardy’s prove was admissible dence of error. ground weapons and access facility with scattering weapons Hardy’s practice gun 6b. The barrel cohorts, sup- tended to which among his complain that admis Defendants that Har- evidence port the Government’s recov gun of the barrel into evidence sion Causey prior gun from dy retrieved was error. from the Industrial Canal ered the murder. Jackson, trial, driver of the At Steve Hardy Davis and that Evidence car, Hardy threw that testified getaway activities illegal in involved were weapon out the of the murder the barrel dealing drug violent crimes included and into the Industrial of the car window opportunity both prove was relevant Bridge. Avenue the Florida Canal near theory under the Government’s and motive case, was that was tell did not Government Jackson Davis was Groves and willing to execute being removed about the barrel execution, because of able to order year until almost one bridge thrown off activi in these mutual involvement their questioned.3 Short- originally was after he ties, Davis’s status as because of Government, a told ly after Jackson Causey alleged to be was police officer. com- a barrel diver recovered Government man. testi Hardy’s right hand Jackson’s weapon recovered with the 9mm patible Causey game” “in the was mony that was to be and believed Causey’s house opportuni relevant to motive likewise argue weapon. Defendants the murder ty. authenti- properly that the barrel barrel Defendants note cated. challenges the admission Davis also to the attached too corroded testimony, Stanley Hadden’s Agent FBI that tests on weapon and alleged murder in- “unrelated referred to an which twice inconclu- alleged weapon murder in- public corruption vestigation” of sive. the cellular obtaining taps on volved partner and his Sammie phones of Davis support an sufficient to evidence

Williams. was on recovered barrel inference it was used weapon when the murder details of excluded the The district court trial, ex- At a firearms Kim drug kill Groves. Davis’s investigation into the federal compati- the barrel was pert testified irrelevant to the as trafficking operations weight point goes to correclly that this found an in- Jackson had claim that 3. Defendants pending admissibility. help lie to himself rather than centive to court charges matter. The district in another alleged weapon. ble with the murder An The district accept court’s decision to FBI expert also testified that the level of stipulation Hardy, from Davis and to the Causey, corrosion on barrel was consistent with exclusion of meaning months, being it phrase “rock-a-bye, baby” water for thirteen was not er- period between of time the murder and ror. is not entitled to relief on this Further, recovery.4 its ground. the barrel and the recovery support

circumstances of its testimony Jackson’s about the events of 7. CAUSEY’S SENTENCING the crime. Ramey, See United States v. Causey argues that the district (5th 414 F.2d 794 Cir.1969)(relying on court misapplied sentencing guidelines facts surrounding discovery pistol of a by calculating his using sentence murder support to an inference that it was used to underlying as the offense notwithstanding perpetrate robbery at issue in that the fact that he convicted on case). 3, which alleged Count tampering witness accomplished by the murder

Defendants are not entitled to of Groves. relief on We review the ground. legal district court’s inter pretation application sentencing novo, guidelines findings de and its factual “Rock-a-bye, baby” stipulation 6c. support of the sentence for clear error. Causey complains that the district Parker, United States v. 133 F.3d 329 accepted stipulation court by the Govern (5th Cir.1998). ment and defendants Davis Hardy Causey’s sentence was calculated “rock-a-bye, baby” was a slang ex 2H1.1, § using U.S.S.G. ap which is the pression understood to killing refer to propriate guideline for Causey’s convic someone, inas “it will be rock-a-bye, baby §§ tions under 18 U.S.C. and 242. you.” for expression The was drawn from 2H1.1, § Under the base offense level is movie, the movie “New City.” Jack In that (1) greatest applica offense level drug a female dealer expression used the (2) any offense, ble to underlying or shooting people. before 6, depending upon or the circumstances of Causey objected that stipulation the offense. The PSR derived the base over broad and changed should be to re- 2A1.1(a), § offense level from U.S.S.G. “rock-a-bye, flect that baby” to refers guideline applicable Degree to First pre killing drug of a dealer. The district court guideline meditated murder. That pro Causey’s overruled objection accepted vides a base offense level of the stipulation on the basis that Davis and requires a mandatory term of life impris Hardy were the ones who used the (estab onment. § See also U.S.S.G. 2X1.1 expression telephone relevant con- lishing the base offense conspira level for versations. offense). cy as that of the substantive Causey objected that he had not been con Davis used expression “rock-a-bye” murder, victed of but the district court gleefully when confirming Hardy adopted the PSR sentenced said, “Yeah, Groves was dead. Davis accordingly. rock, yeah, yeah, rock-a-bye.” Davis also phrase used the to tell that if Application Na- provides note 2H1.1 than Norwood up followed on the IAD that applicable “offense level any under- Davis, complaint against it would lying be “rock- offense” means “the guideline offense a-bye, baby” for him. applicable conduct established expert 4. The testified that years. the barrel could months to anywhere have been in the water for from 6 offense.” 18 prosecution or an tigation, that constitutes conviction offense 1515(a)(4). However, § 1512 also state, federal, or local U.S.C. offense added). provides: conduct es- The (emphasis law.” of conviction— section, the offenses no tablished under this prosecution In a participating murder and with re- conspiring need be proved of mind state appropriately Groves—was ... murder of to the circumstance spect in determin- States, district court by the employed or judge of the United judge is a of 43. See level base offense Causey’s officer is an the law enforcement Woodlee, 136 F.3d States of the Federal Gov- employee officer Cir.1998). jury’s failure act ernment, person or a authorized bearing 3 has no on Count a verdict Govern- reach of the Federal or on behalf Causey mischarac- this determination. ment, the Federal Govern- serving count and “murder” 3 as the Count terizes a adviser or consultant. ment as fact, offense” count. “underlying as the 1512(f)(2). 18 U.S.C. count, tampering was the witness Count Hardy argue that Davis and Defendants of violation charged while Counts support their is insufficient to the evidence three law. All color of under rights civil the indictment 3 of on Count convictions of offense underlying involved Counts prove failed the Government because district affirm the therefore murder. We potential of federal nexus required sentencing guide- application court’s argue Defendants communication. Causey. lines 1512(a)(1)(C) requires § under conviction (1) that following elements: proof of AWITH WITNESS TAMPERING (2) that defen- person; killed defendant prevent by a desire motivated dant was convicted Hardy were Davis and any person and between communication of 18 U.S.C. violation 3 for Count about authorities law enforcement perti- 1512(a)(1)(C), provides, which § (3) offense; of an commission part: nent offense; and fact, was, a federal offense to kill another attempts or kills Whoever (4) person believed the defendant to— intent person, with authori- federal might communicate (C) by any the communication prevent ties. or officer to a law enforcement person informa- of language States of judge plain of the United on the Based possi- or commission relating 1512(f)(2), identified tion the fourth element § ... no a Federal offense is incorrech—there ble commission is by defendants para- prove provided as punished be the Government requirement shall (2). the law en graph defendants believed that the Further, to be federal. officials forcement (2) under punishment for offense Williams, rath argument that defendants’ is— this subsection police Davis, act committed the er than the death (a) murder ... case of complaint by brutality alleged Groves’s for life.... imprisonment or penalty § 1512 is Prosecution under irrelevant. (a)(2)(A). 1512(a)(1)(C) § & 18 U.S.C. guilty are to defendants who not limited as used officer” “Law enforcement offense underlying federal employee § an officer 1512 “means report. expected reported or victim au- Government, person or a the Federal Further, argue defendants act for or on behalf thorized local complaint to internal Groves’s serving Feder- Federal Government law en to federal reported been had not or consultant as an adviser al Government ripe civil not yet and was in or forcement engage law to under ... authorized char- as the detection, complaint Government inves- prevention, supervise the However, acterized it. lack “ripe whom the knew or believed to defendant controlling. ness” is not “An official pro Rather, be we read this federal officers. ceeding pending need not be or about to sentence recognizing that what the be instituted at the time of the offense.” statute proof mandates is that the offi- 1512(e)(1); § 18 U.S.C. see also United cers with whom the defendant believed Galvan, States v. 949 F.2d the victim might communicate would in Cir.1991)(fact that Government informer fact federal officers. longer communicating was no with the Bell, added). (emphasis F.3d Government at time of offense did not “may This element be inferred jury 1512(a)(1)(C) prosecution render from the fact that the offense was federal Nonetheless, inappropriate). we are con nature, plus appropriate evidence.” Id. vinced that the evidence was not sufficient at 1349. required by establish the federal nexus Circuit, The Eleventh interpreting the § 1512. 1512(b)(3)5 similarly held, worded has clearly The evidence was sufficient to “all that was required establish ... [to a] (1) allow to conclude that defen- 1512(b)(3) violation of was the possibility (2) Groves; dants killed that defendants or likelihood that [the defendants’] false were motivated prevent desire to and misleading information would be communication between Groves and law transferred to federal irrespec authorities enforcement authorities about the alleged governmental tive of the authority repre offense; (3) police brutality sented the initial investigators.” Unit subject offense which was the of Groves’s Veal, ed v. States 153 F.3d 1251-52 complaint could, civil rights —a violation— (11th Cir.1998). The Eleventh Circuit cit fact, in charged as a federal offense. Galvan, ed United States v. 949 F.2d What remains is to determine what con- (5th Cir.1991)(“[T]he statute focuses clusions the evidence will support concern- on the defendant’s intent: whether she ing whether the communication defendants thought she might be preventing [the wit sought prevent would in fact be to feder- ness’s] future communication of informa al law enforcement officers. This circuit tion”), court, from this as well as other previously has not addressed an analogous § Circuits’ interpretations 1512(a)(1)(C), However, situation. the Third Circuit in authority interpretation for their Bell, (3rd States 113 F.3d 1345 1512(b)(3). We do not find the Eleventh Cir.1997), issue, has considered this stat- Circuit’s reasoning persuasive in resolving ing: question before us in this case. Rath In view of the statute’s clear command er, Galvan, as dictated parse we government need not prove any focusing record on the defendants’ intent. “state of mind” on the part of the defen- respect

dant with to the federal The charac- evidence reveals that Davis’s ter officer, of the proceeding specific or intent was to short-circuit the IAD 1512(f), U.S.C. we do not investigation read [the and to send IAD a mes requiring proof statute] as that the de- sage to him leave alone in his misuse of fendant might believed the victim police com- power. There no is evidence that municate with law enforcement officers the likelihood possibility or that the mur- 1512(b)(3) 5. provides: 18 U.S.C. judge of the United States of information relating (b) possible to the commission or knowingly Whoever uses intimidation force, threatens, commission of a physical or Federal offense or a corruptly or persuades person, probation, pa- violation of conditions of attempts another or so, role, engages pending misleading judicial proceed- do or release conduct person, ings; toward another with intent to— (3) hinder, delay, prevent imprisoned shall be fined under commu- this title or a nication to law enforcement years, officer or not more than ten or both. jury impan- a before be conducted phase investi- future federal impact a might der of the purpose for the specifically eled in this crime. part played gation if, imposi- after initial hearing sentencing to establish was sufficient evidence sentence, reconsideration con- tion brutality complaint Groves’s necessary). Our remand is sentence the defen- and that crime a federal cerned sen- for a new Davis’s cases Hardy’s and with Groves’s interfere intended dants remaining is- hearing moots However, tencing prior complaint. pursuit error alleging appeals in their sues raised which death, only agency to her phase proceedings. penalty in their initial New Or- was the complained had Groves noth- is There Department. Police leans support would in this record 10. CONCLUSION persons any of finding that

jury reasons, affirm we foregoing For the of- federal complained Groves whom sentences; affirm Causey’s convictions in this Likewise, nothing there ficers. as to convictions Davis’s Hardy’s and finding support which would record 2; Hardy’s reverse Counts 1 communi- any intention of had that Groves 3; vacate as to Count convictions Davis’s law enforcement cating with federal sentences; and Davis’s death Hardy’s and there is Finally, her death. prior to officer re- cases for Davis’s Hardy’s and remand sup- would record that no evidence sentencing. Davis intended inference port an part, REVERSED AFFIRMED com- her pursuing prevent Groves REMANDED VACATED AND part, De- Police Orleans beyond the New plaint part. au- communicating with IAD and partment officers. in fact federal who were thorities concurring DeMOSS, Judge, Circuit Davis’s Hardy’s and reverse We therefore part: dissenting in part and on Count convictions majori- wholeheartedly concur I SENTENCING 9. CAPITAL in- that the evidence conclusion ty’s AND ISSUES —DAVIS nexus the federal to establish sufficient HARDY Hardy’s Davis’ and support to required tam- 3, alleges on count convictions to Hardy were sentenced and Davis prevent in order to awith witness pering of the provisions the pursuant to death enforce- with a federal law communication 1994, Penalty Act Death Federal the ma- with I also concur ment officer. (FDPA). The Gov §§ 3591 - 3597 U.S.C. and that Davis’ determination jority’s intent of its to notice provided ernment aside must set Hardy’s sentences death and notice the penalty, death seek the be- hearing conducted penalty and a new it intended upon which aggravating factors the separate possible not it is cause 3593(a). §in rely, required as to determination penalty jury’s death recom- separate make jury did not Fi- the indictment. counts in the various appropriate the concerning mendations treat- majority’s the nally, I concur Be- of conviction. for each count penalties 2, 5, in parts issues other ment of various jury’s say that the impossible cause it is majority opinion. the 6 and of phase recommendations penalty must however, and therefore I disagree, influenced the were penalty death to af- decision majority’s the dissent received had Davis and fact that on Hardy’s convictions and convictions, firm Davis’ rather eligible death three conspiracy 2, alleges 1 and which counts sen- death two, vacate the we must than Groves’ of Kim deprivation and deprive sentencing for new and remand tences § 241 of 18 U.S.C. rights violation civil U.S.C. pursuant hearings defen- theory that those the and penalty the 3593(b)(2)(D)(providing against dants’ actions Groves constituted involving predecessor case conduct under color I defendants, of state law. also sheriff, In Screws the po- dissent majority’s spartan liceman, from the special and a deputy, beat a eonclusory Causey’s treatment of compel- young man to death in the course of effect- ling argument that trial of noncapi- ing an arrest. The Court found action charges against tal him should have been under color of law because the officers severed from the trial of the capital acting pursuant “duty to their charges against Davis and Hardy. Georgia law to make the arrest effective.” Id. at 1038. The special Court took pains

Murder Under “Color Law” to note that the criminal statutes must be law, Conduct under equiv- color or its construed “respect[s] manner that action, alent state essential element proper balance between the States and the for conviction §§ under 18 U.S.C. government federal in law enforcement.” provides the federal nexus re- Id. at 1039. quired to turn a garden-variety state law Finally, Price, in United States v. murder into a punishable federal offense U.S. 16 L.Ed.2d 267 penalty. death The majority opin- (1966), Supreme directly Court exam- impermissibly ion inadvisably waters ined the requirement color of law embed- down this historical statutory require- §§ ded 241 and 242. Price involved the by holding ment that state action existed brutal murder of three civil rights activists in this case because an “air of official sheriff, at the a Mississippi hands of two authority pervaded the entire incident.” other private officers and some citizens. This poorly ethereal and defined test sub- The civil activists had been arrested verts the inquiry, color of law traditionally prisoner and held county jail. Law rooted in some assertion ap- of actual or enforcement subsequently authorities pre- parent official authority, and transforms tended to release the men in the middle of every abuse of official position into conduct night, having arranged they would attributable to the state. be ambushed on the road. The men were concedes, majority

As the intercepted relevant on the out of road town and principles are to be derived in large part taken to a remote place where at least from a trilogy Supreme Court eighteen cases. people participated in their mur- Classic, States v. 61 der. The Court found action under color (1941), L.Ed. 1368 the Su- of observing conduct “was preme Court addressed color of law possible by made state detention and cal- requirement under statutory predeces- culated prisoners release by an offi- §§ sors to 241 and 242. Classic held that cer of the State.” Id. at 1157. election officials who altered ballots were The Classic trilogy illus /Screws/Price acting under color of law because the acts trates the principle by embraced our Court were committed in the course of per- their that a defendant is not acting under “color formance of official Id. at duties. 1042-43. of law” when he or is “pursuing pri she “[mjisuse The Court held that power, vate aims by and not acting virtue of state possessed by virtue of state law and made authority.” Rhodes, Harris v. 94 F.3d possible because wrongdoer is (5th Cir.1996) 197 (quoting United States clothed with authority of state is (5th v. Tarpley, 945 F.2d 809 Cir. action taken ‘under color of state law.” 1991)); Price, see also 86 S.Ct. at 1157 n.

Id. at 1043. 7. The Court has held such defendants later, years

Four in Screws v. United are not acting under color of “purely law States, 65 S.Ct. 89 L.Ed. they Harris, because are state officers.” (1945), 1495 Supreme Court found ac- 94 F.3d at 197 (quoting Tarpley, 945 F.2d 808). tion under color of in law another criminal at To the contrary, conduct is not in plan separate motion were and apart under color of law unless committed actual a police some assertion of from his status as officer. Davis’ conduct includes authority granted by upon the state. reliance apparent accouterments of his of- 1157; Screws, Price, fice, at police such as his use of the radio to See Classic, 1042-43; 1039; murder, at at S.Ct. confirm S.Ct. Groves’ were matters of (“Tarpley at Tarpley, also 945 F.2d expediency, see convenience or rather than weap simply did more than use his service necessity. matters of I conclude that the identify on and himself as a officer. conduct in presents nothing this case more during his points At several assault position, than abuse which Classic Vestal, have authori special he claimed to standing teaches is insufficient alone to official ty for his actions virtue of his fairly establish conduct attributable to the status.”). state as state action. principle aptly That is illustrated Screws, In Georgia law enforcement offi- Classic, cases. In Louisi- Supreme Court young cials who beat a man to death in the charged altering ana election officials acting course of an arrest under color were counting pri- in a falsely ballots cast they acting pur- of state law were because acting color of

mary election were under duty Georgia suant to “their law to law the conduct was “committed because Screws, make the arrest effective.” performance of their the course inquiry at 1038. The color of law requir- under the Louisiana statute duties Screws, Classic, upon like focuses the fact ballots, to record the ing them to count upon had defendants embarked count, certify and to result of the duty the execution of some official when Classic, at result of the election.” public authority the breach of trust or (internal omitted). quotations 1042-43 (“Classic is, at occurred. Id. there- Thus, it is clear that the defendants fore, indistinguishable from this case so far committed the offense while Classic as ‘under color of state law is concerned. performing course of their official duties. perform- of the each officers State were They position by exceeding abused duties; in power official each the scope authority granted they were authorized to exercise was mis- But it than the state. was more mere used.”). position of their that caused the abuse Supreme Court hold defen- to the case Applying Classic Screws under color dants’ conduct was committed hand, not been is clear that Davis had it analysis placed of state law. The Court’s delegated any authority or discretion equal emphasis on the fact that the defen- though official channels to vindicate his possi- dants’ conduct would not have been by killing personal against animus Groves grant ble but for the state’s of access Indeed, affirmatively her. such conduct authority over the election ballots Taylor prohibited by state law. See Doe fraudulently falsely altered or count- Dist., F.3d 481-86 Indep. Sch. at 1043-44. ed. Id. banc) Cir.1994) (en (Garza, J., concurring dissenting part) (citing Bar- majority heavily upon part Davis’ relies York, 430, radio, police pager, patrol ney City and v. New 193 U.S. use of his of (1904) 502, proposi- L.Ed. car facilitate the offense. But these to just not exist when did no more than that. There is tion that “state action does items was not not complained items that rendered the act nothing about these authorized, leg- but was forbidden state possible nothing the offense and about the (internal altera- quotations islation” and of these items that would have absence omitted)). and Davis’ fortuitous dis- impossible. offense This is tions rendered the to equipment use of the issued plan pensable because both Davis’ malevolent to simply position, him an abuse of his and his conduct to set that was execute Groves of those factors. This case involves none in the course of some than abuse rather relationship between There is no but for duty. official officer and police Davis’ status as a Price, enforcement Mississippi law In Davis’ conduct was Groves’ murder. capacity official their officers asserted any ordinary in committed the course detain, arrange a calculated first and then Moreover, duty.1 neither Davis nor police of, victims for the their intended release any actual or any asserted other defendant ultimately kill- assaulting, and purpose state as authority granted apparent Price, at 1155. their victims. 86 S.Ct. ing, justification for an initial or final Groves’ Price, possibility that creates the which estab Applying principles murder. in concert with may citizens act ordinary Price,2 I Classic, and find in Screws lished under color of state (a state officials rogue theory the defendants defendants’ assertion of hinges upon the officer, dealer, drug and the drug a police kick) authority to arrest the apparent actual or this case en dealer’s side victims, duty delegated relevant color of state gaged in state action under nothing authorities as a matter of short of ridiculous. law enforcement law to be Although Id. at 1156-57. state state law. authority is consistent. Our Circuit relinquish pretended to control officials Tarpley, v. 945 F.2d United States Price, victims defen- over the Cir.1991) jealous n. 2 husband 808 & officers in that case enforcement dants/law Vestal, lover, to the defen- lured his wife’s control, in- relinquished but actually never arrived, Tarp- dant’s home. When Vestal the victims unto a brutal stead delivered “sap gloves” him filled with ley beat law enforce- at the hands of other demise and his service revolver into lead stuck co-conspirators. and their ment officers mouth, that “he was telling Vestal’s Vestal Thus, in- principles those Price embodies police department, Sergeant inci- and Screws. The Vestal, herent Classic Mil that he would and should possible have been but for dent would not get away that he could with it because he of their the defendants’ controlled release contin- cop.” was a Id. at 808. Defendant police victims from official custo- intended and then instructed his beating ued Vestal the direct result dy, and the incident was wife to call another officer arrived, of actual or that officer the offi- of the defendants’ assertion house. When that the defendant authority cer confirmed Vestal apparent to arrest. States, majority great significance v. 71 S.Ct. finds 1. The (1951) ("The get Hardy question could Davis' statement he 95 L.Ed. 774 "thirty.” and then handle the murder Groves special police case is whether a officer speculation partner But Davis' to his capacity subjects person who in his official not, fact, never out. Davis did han- borne suspected of crime to force and violence in "thirty,” there no evidence in dle the may prosecut- order to obtain a confession be the record that he in fact would have had law.); under color of id. at ed” for conduct authority do so. interrogated (noting that the victim pursuant investigation un- to "an conducted concurring majority opinions 2. Both the State”); (noting aegis id. der the Pape, purport rely upon U.S. Monroe police- semblance of the defendant "had a (1961) 5 L.Ed.2d 492 [;] power ... acted under man's from Florida purposes breaking ground for of deter- new law; authority Florida and ... was assert- mining committed under col- when conduct is acting authority granted and not him purport to or of law. But Monroe does not Monroe, person”). private in the role of a adopt any relevant to the in- new standards po- presented question of contrary, merely whether quiry. To Monroe reaf- previously scope principles authority announced in firms the lice exceeded their Monroe, faithfully See investigation, Classic Screws. an official cannot ("We meaning given conclude extending broadening the color of cited as law in the case and in the 'color of’ Classic Supreme concept earlier law as defined in was the correct Screws and Williams case Court cases. one; it.”); we adhere to see also Williams

427 past. acting in the Id. The Court defendant is an area that is com- people had shot law, large under color of pletely apart found action from and derives no “color” Tarpley had claimed to have part because grant the state’s affirmative of au- power by being police virtue of a special official, thority or discretion to the beat, Vestal, kill officer to or even conduct is not committed under “color of “I’ll impunity. (Tarpley Id. told Vestal: law.” decision in Tarpley Our is the can.”). Similarly, kill I’m a I you. cop. binding case that even potentially deviates 589 Pippin, Bennett v. F.3d from that pattern, and that case is distin- case, Cir.1996), § analogous a (and guishable distinguished by was raped just a witness whom he had sheriff case) panel hearing by the defendant’s interviewed. When his victim resisted his express police authority. invocation of his advances, “I can the sheriff told her do diminishing Our error in the test for want, I I’m what the Sheriff.” Id. The compounded conduct under color of law is under color of law be Court found action majority this case because the has bor- cause the Sheriffs actions were an abuse rowed, elaboration, apology, without or ex- power uniquely of held virtue of planation, § from the host of explicit because “the position, Sheriffs relatively a cases involve minor authority governmental invocation of con penalty. Title 18 U.S.C. 241 and a ‘real nexus’ between the duties stituted passed to address the residual effects rape.” (citing Tay and the Id. of Sheriff slavery. significant For most of the 4). Dist., Indep. lor Sch. 15 F.3d at 452 n. history provi- of these civil and criminal sum, Fifth Supreme Court and Circuit sions, penalty the maximum to be assessed precedent are consistent —when the defen a fine a term imprisonment acting pursuant granted dant is to state years. to exceed ten in- authority Congress While granted or an assertion of state authority, potential penalty but that au creased the under exceeds abuses these 1960’s, thority, acting is color defendant under it not until statutes of law. September penalty death sanction, became an available and this case example, For the conduct of a bad law appears to be the first case in which the ar process enforcement officer penalty imposed upon death has been de- witness, resting interviewing someone or a with a of civil charged deprivation fendants even, precedent, under current the mis rights in violation of these Civil War re- public conduct a school teacher who Surely construction statutes. where the a places physical being grave child’s well issue, Dist., penalty ultimate of death is Indep. see danger, Taylor Sch. traditionally the crime of murder which is may F.3d constitute conduct under When, however, punished color of law.3 under state we should be state investigative stop 3. Whatever law there is in made an of Groves in this color of this case Davis, patrolman may execute a must be derived from the conduct of case. A serve and citizen; police upon the New Orleans officer. It is true that warrant for arrest but Davis patrolman any police at the bottom never executed warrant for arrest on even case, pole, may patrolman may totem like Davis in this exer- Groves in this case. A arrest custody any powers cise certain and duties which are de- a warrant and take into without authority police committing rivative of his as a officer and citizen crime; he observes to be whom powers clearly purported of these but Davis never to arrest the exercise may any custody any patrolman "color of law." A enforce the Groves and never had kind traffic, may city patrolman direct traffic laws of the and issue ticket or of Groves. A stay citation to a citizen whom he observes in order individual citizens to behind scene, laws; at an or crime violation of such but Davis never issued barricades accident any vacate kind of citation or ticket to Groves in this order individual citizens to leave or public patrolman may investigative premises grounds case. A make an certain safety; stop suspi- of a has a but there is no evidence in this case citizen if he reasonable authority may engaging cion that the citizen in some that Davis ever exercised such activity; of criminal but Davis never as to Groves. sort the Amendment against which ment requiring diligent even more relief. Congress to afford hypothesis authorizes clearly support evidence §in 20 of the Criminal Congress was colored Thus conduct that the offender’s to make all torts Surely we did not undertake authority. Code of state grant some crimes. It officials federal the mean- of state willing to torture should not be only specified acts brought within Supreme Court ascribed only color” of law and then be committed done “under that conduct requirement of deprived person by adopting, law those acts color of state context, right secured the Constitution legal a new some its factual sheared of States. only that an air of offi- or laws of the United requiring standard incident, partic- authority pervade the cial (internal omitted); see also id. citations Id. upon a that standard is based ularly when government I would hold at 1037. descriptive phrase this Court’s single establishing of satisfy to its burden failed Tarpley. disposition respect nexus with sufficient federal chilling. this case are Davis The facts of I against all defendants. 1 and counts penalty the death Hardy deserve the defendants’ therefore vacate would murder premeditated of part their for violation of 18 federal convictions But should not dilute or Kim we §§ Groves. 241 and and remand U.S.C. statutory requirement obscure the of the district court for dismissal case to under color of state be committed sys- conduct Under our federal the indictments. just these federal convictions. law to save tem, only is the the State Louisiana cautioned that Court has Supreme The forum for the trial and right proper color of requiring conduct under statutes defendants. punishment these respect construed so as to law “should be balance between States proper TRIAL WITH CAPITAL CAUSEY’S in law enforce government

the federal DEFENDANTS Screws, at 1039. If this ment.” portion part I from that also dissent is to have mean concept of federalism majority opinion that affirms the all, then the State of Louisiana ing at trial refusal to sever the district court’s entity pro proper governmental noncapital charges against the murderers punish scribe capital charges the trial of the Supreme said case. As the Court Hardy. against Davis and Screws: majority applies appears The what is one of dele- government national Our trial per an almost se rule that the Under our federal gated powers alone. defen- noncapital defendant with capital of criminal system the administration dant will never raise concerns sufficient except justice rests with States majority supports scope justify severance. acting within the Congress, v. position with Buchanan has created of- this remarkable delegated powers, those 402, 107 Kentucky, 483 U.S. States. As against fenses (1987). in- Cruikshank, But Buchanan L.Ed.2d 336 stated United States 553, 554, review of a state Supreme volved Court 23 L.Ed. 588 Moreover, Supreme [(1875)], duty or law conviction. “It is no more the express note of the fact made power of the United States Court within the sev- defendant did not seek falsely impri- noncapital conspiracy for a punish Rather, State, Id. at 2909. it in that case. within a than erance son or murder only prisoner’s a state Buchanan involved punish imprison- for false would be to joint trial with constitutional claim murder itself.” It is state ment or violated his Sixth capital co-defendants character” that is “particular action of a impartial to an Amend- Amendment by the Fourteenth prohibited from a fair cross section of the lieve that these compromised drawn decisions trial, community. Causey’s right Id. at 2908. to a fair I would hold the district court’s refusal to sever easily distinguishable. This case is noncapital Causey’s defendant trial from First, a appeal this is direct from federal capital the trial of defendants Davis and Indeed, convictions. this is the first re- Hardy constituted an abuse of the court’s in ported noncapital decision which a de- discretion on the facts this case. multiple capital fendant was tried with pro- defendants in federal court under the I recognize that there a preference jointly trying cedures set forth the Federal Death defendants who have been Act, Penalty jointly 18 U.S.C. 3591-3598. named in the same indictment. See Thus, States, appellate no federal court has ever v. United Zafiro considered, 933, 937, appeal, (1993); as a matter of direct S.Ct. 122 L.Ed.2d 317 see 8(b). noncapital whether the trial of a defen- also But severance is Fed. R.Crim. P. multiple capital dant with un- appropriate joint defendants when a trial compro- will Penalty may der the Federal Death Act a specific right mise trial of one of the infringe upon rights the trial of the non- prevent jury defendants or from mak- Further, capital ing defendant. the Federal a judgment guilt reliable about the Act, Penalty specified Death which a innocence of one of the defendants. See procedures Zafiro, 938; number of the and substantive see also Fed. Hardy’s issues material to Davis’ cap- and R.Crim. P. 14 (permitting severance when trial, passed joint ital was not until long prejudice trial would party). a Cau- Buchanan, after the decision in only sey contends that statutory his and consti- month rights trial, one before the offense at issue in tutional a speedy right to if binding this case. Even Buchanan is to participate fully fairly jury relatively to principle process, modest selection right and his to be free the trial of noncapital defendants with from the unduly prejudicial effect of error, capital per defendants is not se spillover irrelevant evidence with no rele- principle nothing preclude does prosecution, vance to his were violated in possibility upon of error based particular this case the district court’s statutory structure of the Federal Death majority refusal to sever his trial. The Penalty states, opinion Act or the facts of this case. I in a single conclusory sen- tence, think our acknowledge Causey review should failed to make the particular meet head on showing strong prejudice required issues raised by application justify of this new I disagree. federal sentenc- severance. To the con- many trary, scheme with its requirements, type this case is rife with the involving in this trial a noncapital prejudice defen- that should cause us to hold that dant. noncapital Causey defendant like should together capital not be tried with defen- Second, Causey sought and was denied dants in federal court. relatively severance. Unlike the limited Buchanan, joint Causey’s challenge Causey’s capital issue trial with co-defen- appeal operated his federal conviction on direct calls him deprive dants of his statu- question prejudiced tory speedy into whether he was and constitutional to a 3161(c)(1) respect statutory to a provides number of his trial. Title 18 U.S.C. Indeed, rights. general and constitutional trial rule that trial should.occur particular seventy days record this case establishes within of indictment or ar- many raignment. Causey of the federal district indicted and de- court’s matter, jury charges decisions selec- tained on the in this case in De- through jury submission, tion were driven cember 1994. was not tried on delay charges April the fact that both Davis and those until penalty. faced the death Because I be- sixteen months. Three of the four contin- be, process from the necessarily ex- different Causey’s case were sought in uances noncapi- selecting govern- that the involved the fact tied to pressly prosecu- To the extent penalty death tal case. seeking the ment jurors all qualify its Hardy. The last two tion exercises Davis against penalty, the death ability their continuances, engendered assess together inevitably be individuals exclud- months, over there will granted were delay four capital case who grounds a objection speedy that his ed on those Causey’s express noncapi- excluded a and not have been being compromised would trial you try if a non- Consequently, the tal case. required. was While that severance capital a defendant defendant with capital “a reasonable permits trial speedy statute permitted to ex- government will be to the delay” attributable co-defen- period of which it 3161(h)(7), jurors grounds see U.S.C. for cause on dants, I do not clude if as a for exclusion grounds attributable could not use period consider the extended being noncapital defendant tried Hardy’ reason- the capital status to Davis’ and Surely noncapital if a defen- judicial separately. exped- able in this case. Whatever gov- the being separately, joint capital tidal of dant were tried justify the might ience jurors for cause defendants, could not expedience ernment exclude noncapital the opposition their grounds severely capital when the on undermined a matter since that would be delay penalty of death defendant causes a status of one to the decision in completely a irrelevant year in the trial of non- more than one Likewise, joint in a particular case. capital defendant. noncapital defen- involving capital trial Causey’s joint capital co-defen- trial dants, capital defendants can exercise right participate compromised dants his prospective against peremptory challenges jury. his fairly in selection of fully and in favor of express who sentiments jurors initially each court allowed The district jurors same penalty. These the death challenges. twenty-six peremptory side desirable, to a may acceptable, even court, in the Causey complained district other defendant for reasons noncapital non- appeal, that his urges again prepared to assess being than their used, by first his co- capital status defendant, noncapital penalty. death court, then the district defendants and therefore, whipsawed between the gets equally in deny participate capital objection for cause and state’s Causey process. "When jury selection challenge peremptory into defendant’s maintains, Causey complaint, raised composed of individuals who having jury a dispute, does not government and the entirely different from those who are that, him if court informed the district noncapital defen- be selected if the would intervene, court the district forced to capital without defen- being dant was tried peremptory Causey allow six would dants. each of his challenges, permitting while chal- peremptory ten capital co-defendants Causey says hap- precisely This is what to be appear There does not lenges each. capital pened in this case. Given limiting justification for Cau- any sound Hardy, charges against Davis dis- jury process sey’s participation parties to circu- permitted trict court in this manner. selection potential questionnaire late an extensive dire to the time formal voir jurors prior co-defen- Causey’s joint capital trial with provide questionnaires Those a began. important questions dants also raises potential into the subject- deal of great insight fairness of the fundamental about penalty to the death jurors’ views as process noncapital a defendant record reflects that jury other issues. The qualified a death required to assemble objected government both to process selecting capital in a case. The jurors ex- is, eliminating potential strikes case and should jury capital a pressing against pen- sentiment the death Courts have been hesitant indulge such a alty, presumption, well as to his for example, co-defendants’ strikes when to do require so would that trial jurors courts em- eliminating expressing sentiment panel a different for the guilt and penalty. Causey favor of the death as- punishment phases of a capital trial. See many jurors serts that of these would have Lockhart, desirable, acceptable, or been even to him. eases, L.Ed.2d 137. In govern- such example, Causey

For claims that some of ment has a strong legisla- interest in its jurors government eliminated tion specifying unitary jury system. See expressing penalty anti-death senti- Moreover, id. at 1769-69. possibility expressed skepticism ment also about capital jury that a guilt heard the government testimony plea induced phase of the trial will entertain a residual bargain. also claims that his co- doubt as to the guilt, defendant’s defendants eliminated certain African- might serve to capital benefit the defen- jurors American who perceived were to be dant during penalty phase the capi- the leaning penalty. toward the death Viewed trial, tal is justify premise used to the that whole, Causey’s as the record reflects that the use qualified jury of a death during participate fully fairly in the guilt the phase capital trial may be jury process compromised by selection was capital beneficial to a defendant. Id. Obvi- capital charges brought nature of the ously, justification that rejecting against Hardy. Davis and proposition common sense qual- that death juries likely ified are more problem ugly Another raises its to convict is applicable when the issue is a quali head is the contention that a death whether noncapital defendant should be tried with capital jury necessarily fied or is more penalty. co-defendants who face the death I prone. recognize conviction that several system noncapital the federal a defen- courts, one, including expressed this have dant will separate jury never face a deter- about reservations the scientific evidence punishment. mination of supporting proposition that a death qualified jury necessarily convic more The of a death empanelment qualified See, McCree, prone. e.g., tion Lockhart v. jury involving noncapital in a case a defen- 1758, 1762-64, U.S. S.Ct. 90 dant, sever, at a may least refusal to (1986); L.Ed.2d 137 Witherspoon v. Illi supported by also be in state’s interest nois, 1770, 1774-75, 88 S.Ct. avoiding the and expense burden of two (1968); Spinkellink Buchanan, 2915; L.Ed.2d 776 trials. 107 S.Ct. at Wainwright, Lockhart, However, 578 F.2d Cir. at 1978). regard inapplicable Without that rationale is empirical this case evidence, expressly the district court basis for the scientific I because found believe that the evidence to be at the guilt that most trial offered judges (including the dis phase of trial such that the burden of judge trict court this case who said as trying Causey separate would be minimal. hearing Causey’s much motion to conclude, therefore, I sever) that there were no willing acknowledge would be important governmental interests to be sense proposition qual common that death potential vindicated and no benefit Cau- juries ified tend to be more conviction sey to trying noncap- be obtained from prone. question The real is whether that charges against ital him before the death necessarily operates fact prejudice qualified jury empaneled to hear the capi- noncapital defendant and whether there charges against Hardy. tal Davis and strong governmental are support interests empanelment qualified Moreover, of a death regard and without to wheth- jury noncapital for trial of a qualified juries defendant. er death are more convic- See, Buchanan, e.g., cases, run prone my 2913-16. tion review qualifica- that death also concerned I am that the need me persuades of this record cases, sys- operate to may, in this case re some jury tion qualify the death certain distinctive clearly prosecu tematically exclude in a panel sulted Lockhart, jury much more See that was service. groups oriented tion jurors J., (Marshall, dissenting) the twelve Of at 1771 likely to convict. selected, (“The themselves suggest ten described death strongly data penalty.” “pro-death jury questionnaire significantly large excludes qualification jurors agreed potential of the twelve Eleven to 17%—of least 11% subset —at what the criminal gives penalty the “death during impartial could jurors who death deserves,” disagreed he Among trial. the members guilt phase Ten of to minorities. was unfair penalty dispropor- class are a excludable of this they disa jurors twelve stated and women.” of blacks tionate number with the state strongly greed disagreed omitted)). case, (footnote three In this on the system should err that our ment tried in African-American defendants free people go letting a few guilty side of Louisiana, Orleans, community with New convicting on the side rather than population. very large African-American jurors were comfort All twelve innocent. used process selection agents with the use of undercover able exact num- it to set case makes difficult jurors twelve and ten of the informants bers, panel of it is clear that but government use of objection to the no had num- jurors significant a potential included jurors gave that Of the five taps. wire citizens. Of the African-American ber of they would have indicated responses, four jurors who answered the prospective testimony government about concern no (or percent) questionnaire, least These last by lenient treatment. induced yet And one African-American. troubling given particularly are responses selected to sit African-American was oper government that undercover role posit I not jury during the trial. do testimony played and induced ations proxy a for may be used as that race case, that cer Causey’s assertion this juror determining particular how a will jurors eliminated penalty pro-death tain vote, jury impar- whether a particular or healthy a mea displayed co-defendants qualification death I do contend that tial. the relative skepticism about of sure and undesirable con- may have unintended by those testimony procured weight of as those identified sequences, such record, in reviewed this Having means. Bu- in Lockhart and dissenting Justices questionnaires submitted cluding chanan, by Causey in identified and those compared to the panel as larger venire whatever again, to ex- appeal. Once selected, jury to me that the jury it is clear consequences might be tolerable tent those by Davis’ necessitated process selection government’s against when balanced to the em- capital led Hardy’s status qualified empaneling a strong interest pro-government strongly of a panelment I would charges, hold capital as to that Cau- jury. Given conviction-prone or is intolerable consequence a that such penalty, the death exposed sey was to a case applied to such when impermissible societal do not feel whatever I government did Causey’s, as may weigh favor governmental interests and which penalty, death not seek the jury to hear qualified death permitting of trial would be mini- separate of the burden capital trial should portion of a guilt mal. his det operate permitted been have Causey’s evidence recognize I Spinkellink, in this case. riment Cf. in this procedure qualification the death (commenting upon the ab at 593-94 F.2d a convic- producing case had the effect that death in that case of evidence sence excluding African- jury or prone tion prone to a conviction led more qualification may not be sufficient jurors American jury). impartial standing alone to establish Sixth Amend- extent to which those capital defendants’ claim that he deprived ment status infused the entire trial and caused a impartial jury drawn from a fair cross subjugation Causey’s rights those community. of the section But we are capital defendants. dealing here with the narrower issue of reasons, foregoing For the I would hold case, severance. In this evidence that the the district court’s grant refusal qualification procedure death Af- excluded (cid:127) Causey separate trial constituted an rican-American citizens tends to establish abuse of discretion on the facts of this another form prejudice required sup- case. I think the majority opinion fails to port his motion for severance. grapple with the arising vexatious issues Finally, Causey prejudiced was also by a noncapital the trial of a defendant large quantity prejudicial spillover evi- such Causey, played who relatively dence relating relationship to the criminal minor role the conspiracy, with capital little, between Davis if had defendants such as Hardy, Davis and any, bearing upon Causey’s case. against whom government offered an points, prejudicial example, testi- impressive quantity of relating evidence mony of police partner, Davis’ Sammie larger criminal enterprises in which defen-

Williams, and co-conspirator of unindicted dant Causey had no role. I respectfully Jackson, Steve they both of whom testified dissent portion from that majority’s only very had knowledge limited concern- decision affirming the district court’s deni- Moreover, ing Causey. there was an Causey’s al of motion to sever his trial amazing volume of evidence documenting from that of his co-defendants Davis and grisly Davis/Hardy details of the rela- Hardy. tionship mercenary and their brutal and only tangential, crimes that if any, had DENNIS, Circuit Judge, concurring: Causey.

relevance to join I fully majority the opinion and There is also evidence that record assign additional concurring. reasons for evidentiary district court’s rulings guided by were considerations relevant to I. The Convictions Under Defendants’ Davis’ and Hardy’s capital status and with- § 18U.S.C.242 out of Causey’s position consideration or example, Causey interest. For objected object The defendants did below or not to certain prejudicial relating evidence argue here that process “fair due the meaning phrase “rock-a-bye- warning requirement” not was satisfied baby.” Causey’s co-defendants desired cases, i.e., they these that have been held a stipulation enter meaning as criminally responsible conduct which for phrase, that Causey objected. to which At they reasonably could not understand to a hearing in stipulation which that was proscribed by be During 18 U.S.C. 242. Causey’s objection, entered over the fol- pendency appeal, Supreme lowing exchange occurred: Lanier, Court, in United States v. 520 U.S. for Causey: Yesterday Counsel pro- 1219, 137 L.Ed.2d 432 posed stipulation roek-a-bye- about this (1997), clarified the fair warning require- baby me, came up. Nobody asked ment. That decision caused me to have par which is the course. for that a satisfy concern failure to the fair your District Court: That’s because client requirement, warning may which have is not facing the death penalty. trial, may been an unclear error at now example, This court district have become clear on appeal because the expressly invoked and Hardy’s capi- applicable Davis’ law has been clarified. “In ex- tal providing circumstances, status as a for ceptional basis notice of especially in crim- certain evidentiary cases, decisions courts, illustrates the inal appellate public being person alties, account of such motion, notice interest, their own may, of color, or alien, of his by or reason been exception has no to which errors punish- race, for prescribed than are obvious, they ifor are taken, if the errors citizens,[shall subject spec- be fairness, or ment integrity, affect the otherwise penalties]. ified criminal judicial proceedings.” public reputation Atkinson, 297 U.S. v. United States stated, of concern the issues Specifically (1936). See L.Ed. 555 (1) the con- whether 18 U.S.C. are: States 52(b); P. also Fed. R.Crim. incorporates, and it provisions stitutional 725, 732, 113 Olano, interpreting decisions court the federal (1993). Also, if even 123 L.Ed.2d defendant, them, warning to gave fair respect, in this plain error there is who, while Davis, a state that officer Len in this account taken into Lanier must be intentionally color of acting under insuf of the defendants’ evaluation court’s to be person justification without causes It now arguments. ficiency-of-evidence life, violates a her deprived of that must Lanier we may be inferred from by either specific made had been right that given was defendant that each determine Constitution terms of the express Lanier, prior warning, as clarified fair States, by decisions of the United laws conduct, such that charged criminal to his (2) them; the defen- whether interpreting amount of conduct would course particular Davis, officer, also was Len dant deprivation of law act under to an color statute, its incor- by the warning given fair in order right, person’s of a constitutional deci- provisions, and constitutional porated was correctly whether there to determine them, his course interpreting sions juror a reasonable evidence sufficient to be causing Kim Marie Groves conduct doubt beyond a to find reasonable amounted to right to life deprived of her en 18 U.S.C. defendant violated (3) law; whether under color acts such conduct. gaging in defendants, Paul private person fair warn- Causey, given the fair warn- and Damon ultimately I conclude Lanier, a state official Davis clarified Len ing requirement, defendant, he caused of law when acting color as to each was satisfied deprived of her as to Kim Groves evidence Marie there sufficient life, par- intentional to and that their charged right the crimes of each element that homicide with Davis in ticipation their constitutionally support convictions. acts majority opin- therefore also constitute Accordingly, I concur would Kim Marie my law violation express reason- color of judgment, but ion and to life that right give defense constitutional opinion Groves’s ing separate in this 242, § by 18 U.S.C. specific made counsel, colleagues of bench had been as well as statuto- any incorporated out constitutional bar, point its a fair opportunity court deci- federal may ry provisions, it flaws that contain. them. interpreting sions and the Issues A. The Statute v. Lanier States B. United 242, 18, United States Title Section Lanier, 259, Code, v. part, provides: in pertinent States 520 U.S. United (1997), a 1219, 432 137 117 L.Ed.2d Whoever, any stat- S.Ct. under color under 18 custom, been convicted judge had ordinance, state ute, regulation, or criminally violating § 242 of any U.S.C. subjects any person willfully by as- women rights of five constitutional State, depri- Territory, or District A chambers. sexually in his them saulting immu- or any privileges, rights, vation of for the Sixth Appeals the Court panel of the Con- protected nities secured or and sen- States, the convictions affirmed or Circuit the United stitution laws Lanier, v. F.3d 639 States tence, 33 United pen- pains, punishments, to different

435 (6th Cir.1994), (1964) court, but the full on re- 894 (quoting United States v. Har banc, hearing riss, en set aside the convictions 612, 617, 347 808, U.S. 74 S.Ct. 98 for lack of notice public (1954))). that L.Ed. 989 § 242 simple covers or sexual assault States, In Screws v. 91, crimes, holding liability criminal 1031, (1945), 89 L.Ed. 1495 may imposed only if the constitutional plurality of Supreme recognized Court right allegedly violated is first identified openness of the constitutional Court, by a decision of the Supreme and guarantees, incorporated when by refer right when the has been held apply 242, ence into generally are ill-suited to in a factual situation “fundamentally simi- giving task of fair warning about the lar” to the one at bar. United States scope of criminal responsibility. At the Lanier, 1380, Cir.1996) 73 F.3d time, same that plurality declared that this (en banc). Supreme granted Court constitutional difficulty does not arise certiorari, question declared that “[t]he is when the accused charged with violating whether this standard of higher notice is “a ‘right which has been specific made than the Constitution requires, and we express either terms of the Consti is[,]” Lanier, 261, hold that it at U.S. tution or laws of the United States or 117 S.Ct. judgment, vacated the ” Lanier, decisions interpreting them.’ remanded for application of proper 520 U.S. at (quoting standard “[b]ecause the Appeals Court of Screws, 1031). at U.S. used the wrong gauge deciding whether “Accordingly, Screws limited the statute’s judicial the prior gave decisions fair warn- coverage rights of, fairly warned having respondent’s actions con- violated ” been ‘made specific’ by the time of the stitutional rights.... Id. at charged conduct.” Id. S.Ct. 1219. Consequently, the Supreme Court Because in lieu of describing the Lanier concluded that the Sixth Circuit forbids, specific conduct it incorporates in adding erred a gloss to this standard guarantees by reference, constitutional requirement prior decision of which themselves are stated “with some the Supreme Court has defined the consti- catholicity phrasing[,][t]he result is that tutional at issue a factual situation neither good nor a many statute[ ] “fundamentally similar” to the one bar. [its] constitutional referents delineate the Id. at 117 S.Ct. 1219. The Court range of particular forbidden conduct with explained plurality Screws “re- 265, 117 ity.” Id. at irony S.Ct. 1219. The general ferred in terms to made prosecution of this is that a to enforce one specific by interpreting’ ‘decisions application §of protection 242’s of due Constitution, and subsequent no case has process can threaten the accused with de held that the interpre- universe of relevant privation of another: “what Justice tive decisions opinions.” is confined to our spoke of warning HOLMES as ‘fair ... in (internal omitted). Id. citation It further language that the common world will un explained that the derstand, specifically Court has of what the law intends to do if a appeals referred to court of in passed. certain line decisions is To make warn the fair, defining the scope far established of a consti- possible so as the line should ” right § tutional (citing be clear.’ Id. under 241 (quoting McBoyle v. Unit States, States, 25, 211, 27, 340, ed Anderson v. 283 417 U.S. U.S. 51 S.Ct. 75 “ ‘ (1931)). 223-27, 2253, L.Ed. 816 “The ... 94 S.Ct. 41 L.Ed.2d 20 principle is (1974)); that man in criminally responsible inquiring right no shall be a whether for “clearly conduct which he could not reasonably applying established” when ’” understand proscribed.” qualified immunity § be Id. rule under 1983 Columbia, (quoting Bouie v. City 378 and Bivens v. Six Unknown Narcotics of 347, 351, 1697, U.S. 84 12 Agents, 388, 1999, S.Ct. L.Ed.2d 403 91 U.S. S.Ct. 29 436 fair and giving of inherently incapable Lanier, (1971). at not 520 U.S.

L.Ed.2d 619 a instances According warning, [some] 1219. 268, 117 clear S.Ct. in various Court, decisions “[Disparate already identi- rule constitutional general insufficiently the law leave might Circuits may apply with law the decisional fied in considered, widely point aon certain even conduct specific clarity to obvious may taken be a circumstance such [but] ‘the action though very even question, whether the warn- deciding account into held been previously question [not] has 269, 117 Id. at enough....” fair ing is 271, 1219 Id. at unlawful.’” S.Ct. 640, 107 Anderson, 483 U.S. at (quoting Further, in Lanier Court Supreme 3034). guaran- my opinion, S.Ct. precedents stated," had not demanded it “[n]o Fifth Amendment of the tees right at issue the constitutional applying ... of life without deprived shall be person situation, factual “fundamentally similar” law,” and of the Fourteenth of process due convictions under upheld that it had but any State de- “nor shall Amendment factual dis despite 242 notable §§ 241 or due life ... without any prive person precedents relied tinctions between 242, § made law,” with together process court, cases then before upon de- right not to be every person’s specific gave rea prior decisions long “so at of law so process conduct then due warning that the life without prived of sonable Id. rights.” constitutional issue violated notice” that advance give “adequate as to erred, Supreme Circuit The Sixth deprivation who caused such person “ pro stated, concluding that due Court law ‘would be color of acting under while § 242 demands warning fair under cess pun- ... [and] punishment with visited ” quali “clearly established” more than something.’ Id. for an unknowable ished or 1983 Bivens. immunity test under fied Screws, 325 (quoting at S.Ct. 3034 ‘clearly established’ object of the “[T]he Id. 1031). Moreover, 105, 65 at S.Ct. U.S. not different from is immunity standard given fair warn- have court decisions prior law it relates to warning’ as that of ‘fair deprivation willful or intentional ing that validly purpose for the specific’ ‘made of law process due life without person’s something require § 242.... To applying punishable of law is color committed under would, ‘clearly clearer than established’ §§ 241 and 242. under 18 U.S.C. beyond ‘fair then, something warn call for ” 270-71, 117 S.Ct. 1219. ing.’ Id. Price, U.S. v. In United States sum,” in Lanier conclud- “In the Court (1966), 16 L.Ed.2d or liability under ed, civil “as 'With (1) § 241 that: declared Supreme Court Bivens, usefully about be said that can all injure citizen any conspiracies to reaches may 242 is that liability it criminal enjoyment in the free exercise of a constitu- deprivation imposed by the to him privilege secured right or if, if, ‘in the light but tional (2) Constitution; includes language this [under law the unlawfulness pre-existing by the Four- protected privileges it Where apparent[.]’ is] the Constitution (3) Amendment; language teenth fair requirement of is, the constitutional within otherwise conspiracies extends 271-72, 117 Id. at warning satisfied.” participated Creighton, scope section (quoting Anderson S.Ct. pri- or in collaboration alone officials (1987)). L.Ed.2d 523 798, 1152. Id. at persons. vate concluded Moreover, Price Court Warning as to Fair C. official, partic- of state Right allegation “an Constitutional murder, by accomplished Violated ipation participation with through its officers pointed Lanier Court Supreme The action others,” of “allegation an state are of the statements law that “general out which, beyond dispute, brings conspir- that, al deprivations, but with like preci- acy within the sion, ambit of the it Fourteenth meant to withdraw the protection 799, Amendment.” Id. at 86 S.Ct. 1152. of civil against statutes peril of death. policy The of the law and the The Fifth Circuit Crews v. United legislative aim was certainly protect States, (5th Cir.1947), 160 F.2d 746 fol- security of life and limb as well as legal lowed the principles by set forth property against these actions. Violent Supreme Court in in affirming Screws injury that would kill was not pro- less (now conviction under 18 U.S.C. hibited than violence which would crip- 242) aof town marshal who murdered a ple. defendant, black man. The had per- who (the animosity

sonal We have toward McFadden fresh evidence de- of the broad cedent), riding nephew’s sweeping in his auto- aims of Congress spotted McFadden, specific mobile when he regard §to who 1983. Monroe v. allegedly Pape was drunk. guided Crews makes an extensive re-examination McFadden without legislative resistance to his neph- history and summarizes car, put ew’s him in the rear seat and its purpose in way. “The debates drove bridge, McFadden to a where Crews are long and extensive. It is abundantly river, forced him to jump into the even clear that one legislation reason the though McFadden him told that he could passed was to afford a right federal not swim. McFadden drowned. Id. at federal courts by because reason prej- 747-48. udice, passion, neglect, intolerance or otherwise, might state laws not be en- This court conviction, affirmed Crews’s forced and the claim of citizens to the concluding that Crews acted “under color enjoyment rights, privileges, and im- in depriving law” McFadden of the “con- munity guaranteed by the Fourteenth stitutional right liberty to life or or to a might Amendment by be denied fair trial processes under due of law rather agencies.” state “It is no answer that by than trial ordeal.” Id. at 749. the State has a law which if enforced In a civil arising 1983, §§ case give would remedy relief federal 1981, 1985(3), this court in Bra is supplementary to the State and the (5th Cir.), zier v. Cherry, 293 F.2d 401 cert. state remedy need not be sought first denied, one is refused before federal (1961) (Brown, J.), L.Ed.2d 136 held that invoked.” against action Georgia police officers (internal added) Id. (emphasis at 404-05 wrongful deceased, death of the omitted). citations and footnote allegedly resulting from violations of Fed Statutes, eral Rights rise, Civil gave by Other courts and judges expressly have statute, virtue of the Georgia survival of a recognized § 242 criminalizes “mur federally enforceable claim for damages by der state officers the course of offi during his lifetime and his survivors. cial conduct and done with the aid of state Before answering question the ultimate Screws, power.” 325 U.S. at available, whether such a remedy was J., (Rutledge, concurring). See Bow court concluded that the Rights Civil Stat DeVito, ers v. 686 F.2d Cir. express utes congressional “clear policy 1982) J.) (“There (Posner, is a constitution protect the life of living from the al not to be murdered a state hazard of death caused unconstitutional officer, for the state violates the Four deprivations rights.” of civil Id. officer, teenth Amendment when its acting According to the court: under color of state deprives person history law.”)

[I]t defies to conclude that process Con- of life without due (citing gress purposely Brazier, 404-05). meant to assure to the 293 F.2d at Beard v. Cf. living O’Neal, freedom (7th Cir.1984) from such unconstitution- 728 F.2d 438 prove obliged to government [T]he

(“The guarantees, Fifth Amendment of a Bishop Gwaltney deprived not person a will things, among other by the Con- protected or of secured process right without due life deprived of be States; of the United right, or laws stitution a constitutional Beard had law. Jeff of life deprived be by right not to someone that the therefore, murdered not to be law is of authority.” process liberty without due of federal or color acting under denied, liberty right to Brazier)), 469 U.S. right; cert. such a (citing (1984). person that no 104, L.Ed.2d 48 principle 83 105 includes S.Ct. intimidated, below, assaulted, depth also, in more may physically be discussed See Robinson, intentionally F.2d 208 503 abused v. otherwise United States who (7th Cir.1974), rogue cop acting by person in which the a justification without O’Neal, (of supra), law; v. that the Beard Beard of state killed under color §§ 241 and violations of without deprived was convicted to be right not of life for hire. committing police the murder prohibits 242 of law process due Robinson, however, did the defendant from In color of law under acting officer discuss, not does opinion and the justification. not raise killing any person without assumes, warning and fair apparently but added). (emphasis Id. at 1387 met. were requirements law color of Circuit, courts, including the Fifth Other cases, discussed along with others These right” the “defined have framed sometimes ac- “very later, make it apparent liberty without to right as the exclusively per- i.e., of a deprivation question,” tion in Hayes, States process. due course officer by life a state son’s denied, 444 Cir.), cert. F.2d 811 the aid done with conduct and official L.Ed.2d U.S. the Consti- under power, is unlawful state the conviction (1979), this court affirmed Lanier, 520 U.S. tution. See who, along police chief 242 of a under officers, other two with his son-in-law and separately also has person Arguably, him to burglar, drove suspected arrested Constitu protected right” “defined area, him to death. and shot a deserted liberty without deprived tion not be for his arranged chief later The also law, right process due trans wife, daughter, sister-in-law life taken having his or her violated miles, they buried body where port acting under by a officer willfully state in an grave isolated body a shallow v. Gwalt law. In United States color of charged Hayes The indictment area. (9th Cir.1986), cert. 790 F.2d 1378 ney, Richard A. “depriving police chief denied, due liberty without Morales (1987), af the Ninth Circuit L.Ed.2d in the death resulting process of § 242 under conviction the criminal firmed (emphasis at 816 Id. Richard A. Morales.” who Patrol officer Highway aof California added). traveling on a woman and murdered raped indictment, According to the highway. Hayes declared that court in This law, will color of Gwaltney, “acting had been violated right” which “defined thereby Bishop, shot fully assaulted and court, and by a be tried “right violating her consti causing her death ordeal, and thus not free de to be right not tutionally protected law enforcement by state assault unlawful pro due liberty without prived custody.” in their lawfully of life officers when (emphasis at 1380-81 of law.” Id. cess added). According (emphasis Id. at 820 added). 242; §to court, the 1968 amendment where imprisonment life which added the follow- held that Gwaltney court results,” the statute “alter[ed] “death erro- plainly jury instructions additional requiring the element insofar as neous: proximate that death as a of ensued result stitution liberty is the from, be free the accuseds’ willful violation of vic- upon attacks her person. It unlawful tim’s defined rights.” Significantly, Id. always has policy been the of the law to this court declared: protect physical integrity every of person unauthorized violence. The amendment to 242 ... Section did Liberty thus includes the principle not proscribe any additional Conduct person no may ever physically already

which was not as- punishable under saulted, intimidated, or otherwise unamended version of Section 242. abused Rather, intentionally justifi- and without those infringement cases of with by cation a person acting under rights defined which the col- result death are or of law of any state. a subset of the universe defined those infringement cases of with defined added). Id. at 829 (emphasis rights. Activities which fall within the sum, whether the right” “defined is naturally former fall within the latter. liberty life, both, one of or of the forego- Id. at 821.1 decisions, together with the express Even though the Fifth Circuit held in guarantees process of due of law of the Crews, the earlier case of suggested in Fifth Amendments, and Fourteenth give Brazier, that when a murder is committed fair warning person’s that a right to life is law, under color of state the “defined protected right, constitutional and that rights” are life liberty, Hayes made it an intentional violation of right under apparent that whether the victim of an color of law proscribed is criminal conduct dies, assault lives or right” “defined is §§ under 241 and 242.

liberty, Thus, rather than life. under Hayes, jury present cases was D. Warning Fair That Conduct properly instructed.2 Is Under Color Lawof Similarly, in States v. Lebron- Supreme Court Lanier dealt Gonzalez, (1st Cir.), 816 F.2d 823 cert. with “right specific” made element of denied, 843, 857, Lanier, 242. 520 U.S. at (1987), Circuit, L.Ed.2d 92 the First in 1219.3 It is difficult to conceive of affirming the criminal conviction under reason, however, that the Due Process fair §§ 241 and 242 of a police officer who warning requirement apply should not also prosecution witness, murdered a no found to the “under color of law” element of clear error in the following jury instruc does, 242. Assuming that it it also fol- tion: lows principles methodology [Ojne of the liberties secured to the set forth Lanier for determining wheth-

victim by involved in this case the Con- requirement er the with satisfied re- Stokes, law,” The Fifth acting Circuit United States v. right under color of which is a (5th Cir.1975), 506 F.2d 771 held that when a by "secured the Constitution and laws of the (but prisoner killed) police, not assaulted United States.” right process to due 242 is not right limited to "a summarily pun- not to be 3. According to the Court: law,” deprived ished or of a trial but also right includes the deprived liberty, not to be 242 is a Section Era Reconstruction civil encompasses right to be (1) "free from making statute it criminal to act upon physical integrity attacks unlawful (2) (3) “willfully” and under color of law to person.” Id. (emphasis at 773 & n. deprive person rights protected by added). Constitution or laws of the United States. The en banc decision the Sixth Circuit 2. The was instructed that the defendant elements, only with dealt the last of these charged depriving was right the victim of "the it is with that element alone that we are deprived liberty to be due without is, process concerned to be here. free (internal from the omitted). use of unreasonable force one Id. citations and footnote practice^]” available theory, was not may also be right” a “defined spect to 473, has 174, legislation the 81 S.Ct. id. at an accused was whether applied decide re- independent application charged general con- that the warning fair given laws or of state of the substance gardless of law under color to acts amounted duct The of them enforcement. quality the conduct. in that engaged before he stated: Court “under the interpreting decisions Court legislation U.S.C. Although [42 the § prior 242 of law” element color of the con- § because was enacted 1983] fair gave in these cases offenses at issue at that in the South existed ditions that Len the defendants all of warning to and is time, language in general it is cast deprivation caused the actions Davis’s the as it is to to Illinois applicable as conduct to life constituted right of Groves’s mentioned names were States whose Pape, v. In Monroe of law. under color It is no in the debates. and again over 473, L.Ed.2d 492 167, 5 81 S.Ct. 365 U.S. if has law which that the State answer grounds, on other (1961), part overruled The federal give would relief. enforced Servs. Soc. Department v. Monell to the state remedy supplementary is 2018, 658, 663, 56 N.Y., 98 S.Ct. 436 U.S. be first latter need not remedy, and the (1978), Court Supreme the L.Ed.2d 611 federal refused before sought and provision of’ “under color held that the fact that Hence is invoked. one applied to unconstitution 1983 42 U.S.C. and laws out- constitution Illinois its authority as without state actions al taken and seizures searches laws unreasonable authorized action well as unconstitutional suit present barrier to the is no case, complaint In that by the state. court. federal (1) Chicago police officers: 13 alleged that 183, home and searched at 81 S.Ct. 473. plaintiffs’ invaded Id. (2) warrant; arrested and

it without a Moreover, in Mon Supreme Court a warrant without Mr. Monroe detained meaning given “un roe concluded (3) him detained arraignment; and without “in the case of’ law Classic der color station for at the “open” charges and Williams Cases the Screws hours, about a two- interrogated him 10 it.” Id. at one; adhere to and we correct him murder, to allow and refused day-old 187, The recalled Court 81 S.Ct. “ (4) family; and attorney or his to call Classic, ruled, power, it had ‘Misuse crimi him without released subsequently and made by virtue of state law possessed against him. being preferred charges nal wrongdoer only because the possible law, is authority of state clothed with in Monroe stated Supreme Court The ” law.’ state taken “under color of’ action presented question and answered 184, (quoting 473 at 81 S.Ct. Id. enacting [42 U.S.C. Congress, “whether 326, Classic, 61 313 U.S. 1983], remedy parties States give meant “ (1941)). L.Ed. S.Ct. rights, privileges of constitutional deprived case was the in the Classic right involved abuse of his by an official’s and immunities to have their primary in a it did so of voters conclude that We position.... Louisiana re The laws of votes counted. Monroe, 365 U.S. at intend.” ballots, ‘to count quired the defendants rejected the specifically 473. The Court count, and to result of the to record the of enumerat- ‘under color argument “that ” Mon of the election.’ certify an offi- the result authority acts of excludes ed state 183-84, (quot roe, at 365 U.S. S.Ct. can no authori- policeman who show cial or 1031). Classic, at S.Ct. custom, law, or state state ty under state they did the indictment according to “But he Id. The Court to what did.” usage do duty.” Id. their perform that, one of the aims of although noted further Monroe 1031. The Court remedy a federal provide “to statute was view of case’s noted that the Classic though adequate remedy, where the state meaning of the words “under color of’ sions of this Court which given have state in 18 U.S.C. was reaffirm form to the “state action” doctrine make Screws, ed in 108-13, 325 U.S. at it clear that the indictments in this case 1031; Screws, that in reject the Court had allege conduct on part ed, Monroe, as it did in argument “pr[i]vate” defendants which constitutes “under color of’ state law included action,” “state and hence action “under action taken pursuant officials to state color” of law § within 242. In Burton v. law; that the Court had adhered to Clas Wilmington Parking Authority[, 365 sic 's view Williams, United States v. 715, U.S. 856, 81 S.Ct. 6 L.Ed.2d 45 70, 99, 341 581, U.S. 71 S.Ct. 95 L.Ed. 758 (1961)] we held that there is “state ac (1951); “[tjhe meaning which the tion” whenever the “State has so far Classic gave case to the phrase ‘under insinuated itself into a position of inter color any law’ involved a construc (with dependence ‘private’ otherwise tion of the statute. Hence if it states a person whose conduct is said to violate rule undesirable in its consequences, Con * * * Amendment) the Fourteenth gress Monroe, change can it.” 365 U.S. at it must recognized joint as a partici 185, 473; that it beyond doubt pant in the challenged which, activity, phrase should be accorded the account, cannot be considered to same construction in 42 both U.S.C. have been ‘purely so private’ as to fall § § 1983 and 18 Id.; U.S.C. 242. and that without scope of the Fourteenth since the Screws decisions, and Williams Amendment.” Congress had several pieces of civil legislation it, before but on none of those 7, Id. at 794 (internal n. 86 S.Ct. 1152 was a occasions word criticism directed omitted). citations to the prior construction given Several courts of appeals have dealt with Court to the words “under color of’ law. the question of when a state law enforce 186, Id. at 81 S.Ct. 473. officer, ment whose conduct is usually con The Supreme opinion Court’s in United sidered to be action, state pri becomes a Price, States v. 787, 383 1152, U.S. vate citizen for state color of action/under 16 (1966), L.Ed.2d 267 contains a short law purposes. In United States v. Tarp treatise on “under color of law” that con- (5th ley, Cir.1991), 945 F.2d 806 involving tributes to fair warning that Len Davis’s § 18 U.S.C. the defendant deputy conduct was within scope term, of that sheriff was accused of assaulting his wife’s and private persons, jointly engaged lover former under color of law. Affirm with him in prohibited action, would be conviction, his the Fifth Circuit stat acting “under color” of law purposes for ed: statute. In footnote the Court stat- ed: Tarpley did more simply than use his service weapon identify himself as a

“Under color” of law means the same police officer. At points several during § thing in 242 that it does the civil Vestal, his assault of he counterpart §of claimed 42 to have § U.S.C. special authority cases his actions vir- “under color” of law tue consistently has official been status. He treated as claimed thing same that he could kill as the Vestal because “state action” he was re quired under an officer of the Significantly, Fourteenth law. Amend ment. The contrary Tarpley in a police view 242 summoned another offi- expressed context was by the cer from the dissenters sheriffs station and identi- Screws, rejected then, him later fied as a fellow ally. officer and II, in Williams finally 1983 men proceeded The then to run Vestal - in case - in v. Pape. Monroe Recent deci- out of town in their squad car. 442 and then persons private danger from of official the air police and presence him, be heard it will not protect fails to incident. the entire authority pervaded it is merely passive; that its role was say

Id. at 809. if it had as active tortfeasor much an as (6th Belcher, 438 F.2d Stengel v. Beard pit.”); into a him snake thrown 910, 96 Cir.1975), U.S. granted, cert. Cir.1984) O’Neal, F.2d 760, cert. dismissed 1505, L.Ed.2d S.Ct. where (“This a situation is unlike ease 118, 97 granted, improvidently officer, posi- in a iswho police uniformed (1976), dealt with L.Ed.2d mur- violence, observes prevent tion officer off-duty, out-of-uniform way.... intervening der without room brawl a bar involvement whose authori- Indeed, presence the officer’s killing shooting several in his resulted by providing murder ty might facilitate identify did not The officer persons. two government. support symbolic On intervened. he when as such himself per- case, might be officer the In such a regula hand, department police the other person the acts of for the sonally liable duty police on continuing a imposed tions weapon.”). the murder operated who act duty, to officers, off when even law crimi of police or color any of is under type act Accordingly, with connection “ power, mace of Also, officer used ‘[m]isuse activity. it constitutes a nal when gun, a simi and made law department by virtue of state by the possessed issued he is wrongdoer department, only because larly issued possible ” times. The carry at all state law.’ authority to of required clothed 184, officer was 473 Monroe, indicated at 81 S.Ct. Circuit Sixth U.S. 365 matter of as a law Classic, under color of at 61 S.Ct. acting U.S. 313 (quoting on or 809; Lanier, police a officer law: “The fact F.2d at 1031); 945 Tarpley, is not uniform of or in or out that under duty, off “It is clear at 653. 33 F.3d. act ‘It is the nature controlling. of ‘pretense’ under means ‘color’ of law actor or clothing of the Screws, not performed, at 325 U.S. law.” or off duty, being 809; on the status even F.2d at 945 Tarpley, Accord 1031. the officer whether duty, which determines pursu- Lanier, Individuals 33 F.3d at 653. ” Id. at 441. law.’ color of misusing has acted under using or not aims but private color acting under are not authority state County Commis v. Charles In. Revene offi- they state are purely because of law (4th Cir.1989), an off- sioners, 882 F.2d 809; Lani- F.2d at Tarpley, 945 cers. See plain killed sheriff shot duty deputy However, “[a]cts er, at 653. 33 F.3d re The Fourth Circuit decedent. tiffs their perform who undertake officers on court’s dismissal district versed they are included whether duties official though the Even grounds. action state over- authority or the line of their uniform, hew duty, out of off defendant Screws, it.” step vehicle, a matter as driving own his if offi- not “mean does Screws hours twenty-four duty he local law was reasons, they personal purely act for cials proper take expected day and was a ” of law.’ act ‘under color necessarily fail to Id. at 873. when appropriate. action police v. (citing Brown F.2d at 809 Tarpley, helpful distinc- have drawn cases Other Cir.1980); (5th Miller, Unit- F.2d 408 DeVito, F.2d tions: Bowers (5th Davila, F.2d 749 ed States v. Cir.1982) (“The ais char- Constitution Cir.1983)). liberties; it tells state negative ter of Davis, Hardy, and Cau- Consequently, alone; require not it does people to let their notice adequate advance sey had provide state government federal merely part of Davis’s not actions elementary a service services, so even also but goal, purely personal pursuit a [Howev- law and order.... maintaining misuse of use or involved substantial a position man in er,] puts the state [i]f authority power vested him that, state It is true unlike present case, (1) law: Davis’s actions were taken to pro- most of previous decisions upholding position tect police officer, his as a §§ convictions under 241 and and civil against retaliate Groves for informing the judgments for unconstitu- IAD alleged of his previous acts under tional deprivations of life and liberty color of law in misuse of his authority, and law enforcement officers involved the offi- to send the IAD message to leave him cer’s personal operation of the weapon or alone in his exercise of the powers of his other criminal means. There is no reason (2) office; While acting under the pretense sense, common or morality, howev- of performing duties, his official Davis er, rational person, whether he is a station, used the police police car, squad police officer or a co-participant in an of- police radio, and police telephone, as well officer, fense with the to believe that the presence as his as a fully armed and deprivation person’s constitutional equipped, policeman, uniformed driving a right to life by an officer’s use and misuse police car, marked squad plan, direct, authority through an intermediary (3) effectuate the Groves; murder of would not equally as unlawful as such a Davis had power as a officer to deprivation by the officer’s own hand. either protect protect Hardy and The Supreme Court has “upheld convic- Causey from investigation and arrest for tions under 241 or 242 despite notable crimes; numerous Davis used power factual distinctions between precedents the vested in him by the state to persuade and relied on and the cases then before the require Hardy and Causey to murder court, long so prior as the decisions gave (4) Groves; Davis used his authority and warning reasonable that the conduct then power the of his provide, office to on his at issue violated constitutional rights.” watch, surveillance, own lookout, and cover Lanier, 520 at U.S. 117 S.Ct. 1219 for the killers which they began under and authorities). (citing sum, “In as with civil carried out most of the operation; homicide Bivens, liability § under 1983 or (5) all that setting After the murder in scheme can usefully be said about criminal motion, liability Davis continued to misuse his au- § under 242 is that it may thority imposed and for responsibility by deliberately deprivation of a if, allowing the constitutional criminal but proceed to activity only if, ‘in unimpeded, the light of contrary pre-existing to obligation law the as a police officer, unlawfulness off, [under whether on the duty or to Constitution] apparent[.]’ interdict known (6) is, breaches of peace; the Where it the constitutional Causey joined and requirement and executed of warning the fair is satisfied.” murder operation with full Id. 271-72, knowledge (internal and at 117 S.Ct. 1219 cita- consent to the foregoing omitted).4 facts. tion §§ are life, There other 241 and 242 liberty, cases in- property and process without due volving facts law, similar to Len "rogue Davis's of operation and that the conspira- which, cop” conduct apparently, in cy "color resulted in the deaths of Jeff Beard and of law” “right protected” and Smith, elements were Verdell in violation of 18 U.S.C. so clear that these 241”; issues not were raised as Robinson, charged two counts assignments of in error either case. acting while under color of depriv- with Robinson, In United States v. Joseph 503 F.2d 208 and Jeff Rubio Beard of "constitu- Cir.1974), (7th denied, rt. rights U.S. protections” 420 95 tional ce in violation S.Ct. (1975), 43 L.Ed.2d 427 18 Sev U.S.C. 242. Id. at 210. enth Circuit §§ affirmed 241 and 242 Police officer Robinson entered into a con- criminal police convictions of a officer spiracy (an who with Holmes and O’Neal under- conspired lay-person with accomplices paid informant) to cover FBI to "shake down” drug murder dealers in to drug pushers order finance a in order to finance what was to scheme rob an armored car. "milkrun,” called a awas to scheme Robinson, charged one indictment two $1 rob million from armored car. Id. Chicago police conspiring officers with part with 211. As conspiracy, of the Officer Rob- "deprive others to citizens of their to obtained inson contract to murder Chuck phase recom- jury’s penalty standard, say that warning fair Applying penalty death of the by mendations methodology clarified

principles, Har- Davis and that Lanier, the fact analogy, influenced in Supreme Court con- eligible three death received dy had defendants each I conclude two, must vacate than we warning victions, rather fair given cases present new for and remand in- sentences he the death the conduct decisions by prior hearings.” sentencing would engage tentionally chose law and color under to acts amount it “unless has declared court This liability under criminal him subject record that from the can be ascertained § 242. U.S.C. a valid conviction sentence trial court’s subsequently invali by a affected was not Conviction Erroneous II. Effect count of on another conviction dated Tampering Witness be resen- indictment, must a defendant con- tampering the witness agree I Bourgeois conviction.” the valid tenced on re- the case reversed must be viction 718, 721 Cir. Whitley, F.2d v. resentencing. manded States, v. United also 1986). See Jerkins (5th Cir.1976); United 1203, 1204 530 F.2d to add authorities further I write 1051, 1053 Garcia, F.2d v. States opinion’s majority support that tend Tucker, States (1987) (citing “[bjecause impossible it is conclusion (1993), in which trial, 123 L.Ed.2d McFerren, a state murder witness the conviction affirmed the "mil- Circuit to fund Eleventh money to be used (a Robinson, murdered second officer who Tolliver of a Id. After krun.” police Holmes, acquitted), attempting rob him who after drug officer dealer lounge Robinson, owned out the court O'Neal staked the Simon As his home. McFerren, Robin- they McFerren followed "right law” and "color of did not discuss the they pulled up next However, car. When son’s § 241. protected” elements car, a rifle Tolliver fired Officer McFerren’s rights the constitutional defined indictment vehicle, kill- of the window through the rear in his "rights to be secure as the violated Smith, the car. passenger in a ing Verdell property.” Id. at 1085. person and Id. Simon, consent officer obtained after an In later, obtained days Robinson Officer Nine claiming to by residence the victims’ to enter Rubio, a $5,000 Joe on murder contract a violations, the officer drug investigating be Of- Id. at 211-12. pusher. narcotics reputed police the officer Simon called fellow then O’Neal, Robinson, conspira- and third ficer tor, Id. When inside. to come told him radio and Bruce, car. Robinson stopped Rubio’s money drugs or find could no Simon Officer behind hands Rubio’s handcuffed Bruce and house, his drug the dealer and he the shot back, of O'Neal's seat put in the back him head of the companion in back female park forest. car, public to a him and drove any wit- to leave not want "he did Rubio, because killing Robinson at 212. Instead Id. they were involved because down,” behind pay each nesses getting Rubio to him "shook robbery.” Id. narcotics agree to sell an armed and conspirator $100 and in Robinson Although the defendants Id. for them. later, raise, told not Robinson courts did days and Officer did Two Simon $1,000 "contract” "right protect- address, had he "color of law” O'Neal Beard, statutes, dealer. another narcotics Jeff I cite murder the criminal ed” elements at a spotted Beard and O’Neal Id. Robinson and Eleventh the Seventh because these cases hall, when him accosted Robinson pool and rights con- civil the criminal affirmed Circuits had that he told Beard left. Robinson he was conduct police officers whose victions going take Beard he was warrant Be- before us. cases similar searched Robinson station. Id. police cops” "rogue all involve these cases cause him, Beard, placed him handcuffed authority personal for who abused Id. Robinson a car driven O’Neal. back of charged with criminal who gain, and were Indiana, where Beard drove and O’Neal death, I that resulted rights violations civil Beard to death. clubbed shot Robinson warning that may give fair cases think these Id. violates at issue type conduct particular conduct criminal similar case Another rights. constitutional Simon, F.2d 1082 964 v. States is United 1033, denied, Cir.1992), U.S. cert. 443, 589, U.S. 30 L.Ed.2d 592 at least a substantial risk jury was (1972)). misinformed.” Id. capital cases, “[e]volving standards of During each of the separate penalty decency imposed societal have a corre phases of Davis and Hardy, jury spondingly high requirement of reliability instructed it “must consider miti- on the determination that death is the gating may factors that present be in this appropriate penalty particular in a case.” case.” The jury permitted to consider 367, Mills Maryland, 383-84, 486 U.S. “anything about the commission of the 1860, (1988). S.Ct. 100 L.Ed.2d 384 crime or about [the back- defendant’s] Therefore, “[t]he possibility that [defen ground or character that mitigate would jury dant’s] conducted its task improperly against the imposition of the penal- death certainly is great enough require resen- ty.” Specifically, jury was told that tencing.” 384, (em Id. at the defendant upon relied the mitigating “ added). phasis Furthermore, ‘[t]he risk factor “that person, another equally culpa- penalty death bewill imposed ble in the crime will not punished spite of may factors which call less added) death.” (emphasis This instruction severe ... penalty is unacceptable and permitted jury to take into account as incompatible with the commands a reason not to impose the penalty death ” Eighth and Fourteenth Amendments.’ the fact—if juror found it to be so 376-77, Id. at 108 S.Ct. 1860 (quoting preponderance of the evidence—that Ohio, Lockett v. other participants in the killing would not (1978)). 57 L.Ed.2d 973 be sentenced to executed, death and even case, In this Davis, defendants Hardy, though they might be equally or even charged with three more responsible than the defendant for (1) counts alleging violations of: 18 U.S.C. the victim’s death. According jury “Conspiracy (2) against rights”; 18 instructions, requires “[t]he law consider- U.S.C. “Deprivation ation of this mitigating factor to ju- allow law”; (3) color of U.S.C. ries to fair, consider what is considering all “Tampering witness, with a victim, or an of the persons responsible for an intention- informant.” Conviction on each of these al killing, before imposing a sentence of punishable counts is by the death penalty. death.” Significantly, however, government While the filed a “Notice of also was instructed that even “[i]f one ju- Intent to Seek the Penalty” Death for each ror a mitigating present finds factor of the three respect counts with to Davis which, juror’s mind, in that is not out- and Hardy, government did not seek weighed beyond a reasonable doubt penalty death with respect Causey. aggravating proved, then jury factors Hardy Davis and on convicted all may (em- not sentence Hardy to death.” counts; three Causey was convicted on added). phasis two, counts one and jury and the panel This has decided to reverse the unable render a unanimous verdict with convictions of and Hardy Davis on count respect to Causey three, on count three, for lack evidence, of sufficient and to subsequently was preju- dismissed without affirm Causey’s convictions on counts one dice. Therefore, and two. all three defendants is, “There course, no extrinsic evi- will stand convicted of only counts one and dence of what the in this actually case two. However, Davis and Hardy have thought. We have only before us the ver- been death, sentenced to while Causey has dict form and the judge’s instructions.” been sentenced imprisonment. to life Mills, 486 U.S. at 108 S.Ct. 1860. However, my reading of parts those Given disposition this of the defendants’ record leads me “to conclude that there is appeals, we cannot rule out the substantial Commission, Service Public Louisiana penalty death that, during the possibility Committee, Members and Unofficial to Davis respect with deliberations Appellant, with presented jury been had the Hardy, i.e., exist, they now the circumstances standing convicted defendants all three for Mabey, Chapter Trustee Ralph R. three, two, count not but one and counts Cooperative, Cajun Power Electric spared having been Services; Unse Inc.; Rural Utilities jurors or more that one penalty, the death Committee, Appellees. Creditors cured preponderance aby have found would 98-31258. No. to Davis respect the evidence defen- defendant that “another Appeals, Court States crime, in the dants, culpable equally Circuit Fifth not be would] Causey, [namely, Damon Aug. had juror one If by death.” even punished present to be mitigating factor this found Davis of either phase penalty

in the both, had further found

Hardy, or beyond outweighed to be not

mitigation fac- aggravating doubt

reasonable have jury could then

tors proved, to death defendant

sentenced juror was single which a phase in

penalty factor. mitigating by the

so influenced “ to con- failure the [sentencer’s]

‘Because risks mitigating evidence all

sider sen- the death imposition erroneous ” for remanded must be

tence,’ case Mills, 486 U.S.

resentencing. See Eddings v. Okla- (quoting

homa, J., (O’Connor, (1982) concur-

L.Ed.2d

ring)).

III. Conclusion opinion majority join

I ad- for the therein expressed

reasons assigned. herein reasons

ditional CAJUN ELECTRIC Matter of

In the COOPERATIVE, IN-

POWER

CORPORATED, Debtor.

Case Details

Case Name: United States v. Damon Causey, United States of America v. Paul Hardy, Also Known as P, Also Known as Cool and Len Davis

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 16, 1999

Citation: 185 F.3d 407

Docket Number: 96-30486, 96-31171

Court Abbreviation: 5th Cir.