U.S.A v. Davis
| Decision Date | 16 June 2010 |
| Docket Number | No. 05-31111.,05-31111. |
| Citation | 609 F.3d 663 |
| Parties | UNITED STATES of America, Plaintiff-Appellee,v.Len DAVIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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April J. Anderson, Gregory Bryan Friel (argued), Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, DC, Michael Edward McMahon, Stephen Andrew Higginson, Asst. U.S. Attys., New Orleans, LA, for Plaintiff-Appellee.
Barry Joseph Fisher (argued), Albany, NY, Marcia Adele Widder (argued), New Orleans, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before STEWART, DENNIS and HAYNES, Circuit Judges.
Defendant-appellant Len Davis appeals his 1996 conviction and 2005 death sentence imposed pursuant to the Federal Death Penalty Act (“FDPA”), 18 U.S.C. §§ 3591-3599. We AFFIRM.
Kim Marie Groves was murdered on October 13, 1994 in New Orleans, Louisiana, through the coordinated efforts of Davis and his co-conspirators Paul Hardy and Damon Causey. Davis, then an officer with the New Orleans Police Department (“NOPD”), exchanged protection for favors with Hardy, then a New Orleans drug dealer. Causey was an associate of both Hardy and Davis. One of Hardy's favors, at Davis's request, was to murder Groves.
Davis requested the murder because, on or about October 10, 1994, Groves witnessed Davis's police partner, Sammie Williams, pistol-whip her “nephew,” Nathan Norwood, who lived in the neighborhood. Groves filed a complaint against Davis with the NOPD's internal affairs office, alleging that Davis engaged in police brutality.
Davis learned about the complaint on October 12. The next day, Davis paged Hardy at about 5 p.m. When Hardy called back, he and Davis discussed a plan to kill Groves, with Hardy as the shooter and Davis and Williams taking care of evidence at the crime scene after the murder was committed. Davis arranged to meet Hardy and Causey at the police station to view photos of homicide cases. Davis and Williams then drove to Groves's neighborhood in their NOPD patrol car and searched for her. Shortly after 7:30 p.m., Davis and Williams picked up Hardy at his home and drove back to Groves's neighborhood so that Hardy could walk around.
After driving Hardy home, Davis and Williams returned to Groves's neighborhood and searched for her again. Davis became agitated as the evening progressed because Groves had not been killed yet. At about 9:45 p.m., Davis called Hardy to complain; Hardy assured him that the murder would get done.
At approximately 10:00 p.m., Davis and Williams spotted Groves near her home. Davis paged Hardy. When Hardy called Davis back almost immediately, Davis described Groves's appearance. Hardy replied he was “on [his] way.” Williams's shift ended at that point, and he left Davis with the patrol car.
About 45 minutes later, Davis called Hardy again to complain that Hardy had not killed Groves yet, and described Groves's clothing and location in detail. Hardy, along with Causey and a driver, went to Groves's neighborhood. At approximately 11:00 p.m., Hardy shot Groves in the head, killing her.
At the time he was planning the murder with Hardy and Causey, Davis was unaware that he was the target of an FBI undercover investigation into corruption in the NOPD. That investigation, “Operation Shattered Shield,” involved soliciting NOPD officers to guard what they thought was a warehouse holding illegal drugs for shipment. In connection with this investigation, the FBI conducted surveillance and recorded cellular telephone conversations of Davis and other NOPD officers.
In December 1994, the Government filed a one-count federal indictment against Davis, Hardy, and Causey, followed by a three-count superseding indictment and a second superseding indictment. In July 1995, pursuant to the FDPA, the Government filed two notices of intent to seek the death penalty for Davis and Hardy, and the FDPA elements in support. See 18 U.S.C. § 3593(a).
In August 1995, the third superseding indictment charged each defendant with: (1) conspiracy to deprive Groves of her civil rights while acting under color of state law, including eight overt acts in furtherance of the conspiracy, in violation of 18 U.S.C. § 241; (2) depriving Groves of her civil rights by use of excessive force by shooting her with a firearm, resulting in death, in violation of 18 U.S.C. §§ 242 and 2; and (3) willfully killing Groves to prevent her communications to a law enforcement officer regarding a possible federal crime, in violation of 18 U.S.C. §§ 1512(a)(1)(C) and 2.
In April 1996, Davis and his co-defendants were tried jointly before a jury. The evidence included recorded telephone conversations between Davis and Hardy discussing Groves's complaint and the plan to shoot her. Williams also testified and corroborated much of the recorded conversations. The jury found Davis and Hardy guilty on all three counts, and found Causey guilty on Counts 1 and 2; it could not reach a verdict on Count 3 as to Causey. After the conviction, Davis refused to return to the courtroom and the case proceeded to the sentencing phase in his absence.
At the first stage of the sentencing phase, the jury was charged to decide whether an FDPA “death qualifying factor” existed for either Davis or Hardy. See 18 U.S.C. §§ 3592, 3593(d). The jury found that Davis and Hardy intentionally killed Groves after substantial planning and premeditation. Accordingly, the district court conducted a hearing at the second stage of the sentencing phase to determine whether Davis and Hardy should be sentenced to death or to life imprisonment without release. See id. § 3592. The jury selected the death penalty. Davis and Hardy were sentenced to death; Causey, to life imprisonment.
All three defendants appealed, citing numerous points of error individually and collectively. We affirmed Causey's conviction and sentence, and affirmed Davis's and Hardy's convictions on Counts 1 and 2. United States v. Causey, 185 F.3d 407, 412-21 (5th Cir.1999) cert. denied, 530 U.S. 1277, 120 S.Ct. 2747, 147 L.Ed.2d 1010 (2000). However, we reversed Davis's and Hardy's convictions on Count 3 because of insufficient evidence. Id. at 421-23. We also vacated Davis's and Hardy's death sentences as to all three counts because the jury did not make separate recommendations concerning the appropriate penalty for each count of the conviction. Id. at 423. Accordingly, we remanded Davis's and Hardy's cases for re-sentencing. Id.
On remand, the Government again sought the death penalty, notifying Davis and Hardy of the FDPA elements in support. Hardy and Davis moved to prohibit a death penalty re-sentencing based on double jeopardy. The district court denied the motion, refusing “to extrapolate from the Fifth Circuit's decision [in Causey] a determination that the Government did not prove its case for death with regard to Counts 1 and 2 because the evidence had been insufficient to sustain a conviction on Count 3.” We affirmed the ruling. United States v. Hardy, 34 Fed.Appx. 962 (5th Cir.2002) (per curiam).
Davis moved for reconsideration, arguing that the death sentences were precluded by the indictment's failure to include the requisite specific intent element and statutory aggravating factor under the FDPA. The district court granted Davis's motion in part in an unpublished order, holding that the indictment was insufficient. The Government appealed. We vacated the district court's order, holding that failure to include the required elements was harmless constitutional error, and remanded for re-sentencing. United States v. Davis, 380 F.3d 821, 829-30 (5th Cir.2004) reh'g & reh'g en banc denied, 121 Fed.Appx. 59 (5th Cir.2004) (table) cert. denied, 544 U.S. 1034, 125 S.Ct. 2247, 161 L.Ed.2d 1062 (2005).
Davis's re-sentencing proceedings began on July 25, 2005 before a jury. 1 During the first stage of the re-sentencing, Davis elected to represent himself with appointed counsel serving as back-up.2 On August 3, 2005, the jury returned a verdict rendering Davis eligible for the death penalty, finding that he intentionally participated in an act contemplating that Groves would be killed, and did so after substantial planning and premeditation. Thereafter, Davis refused to return to the courtroom for the second stage of the re-sentencing, but permitted his back-up counsel to proceed in his absence. After hearing the Government's and defense counsel's evidence, the jury returned a verdict recommending the death penalty, finding that the aggravating factors were proved beyond a reasonable doubt, that no mitigating factors were present, and that the aggravating factors sufficiently outweighed the mitigating factors to justify a death sentence.
On August 17, 2005, Davis filed a motion for judgment of acquittal and a new trial. The district court denied the motion on October 20, 2005, because the issues presented had been decided in numerous motions before Davis's re-sentencing. The district court sentenced Davis to death on October 27, 2005. Davis timely appealed.
Upon conviction for a homicide, the FDPA provides for a separate, post-conviction penalty proceeding. 18 U.S.C. § 3593(b); see also Jones v. United States, 527 U.S. 373, 407-08, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).
In the first, or “eligibility” phase of the proceeding, a jury must unanimously find beyond a reasonable doubt that: (1) the victim's death resulted from the defendant's intentional engagement in life-threatening activity; and (2) one or more of the aggravating factors proposed by the Government is present. See 18 U.S.C. §§ 3591(a)(2), 3592(c); Jones, 527 U.S. at 407-08, 119 S.Ct. 2090.
If the jury returns both findings, the proceeding moves to the second or “selection” phase. S...
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