U.S. v Hardy, 5

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
PartiesREVISED
Decision Date15 September 1999
Docket Number9631171,5

REVISED SEPTEMBER 15, 1999

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-31171

UNITED STATES OF AMERICA, Plaintiff-Appellee,
VERSUS
PAUL HARDY, also known as P, also known as Cool;
and LEN DAVIS, Defendants-Appellants.

No. 96-30486

UNITED STATES OF AMERICA, Plaintiff-Appellee,
VERSUS
DAMON CAUSEY, Defendant-Appellant.

Appeals from the United States District Court
For the Eastern District of Louisiana

August 16, 1999

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Damon Causey appeals his convictions and resulting life sentence for violation 18 U.S.C. 241, conspiracy against civil rights and 18 U.S.C. 242, deprivation of rights under color of law. Appellants Paul Hardy and Len Davis appeal their respective convictions and death sentences for violation of 18 U.S.C. 241, conspiracy against civil rights, 18 U.S.C. 242, deprivation of rights under color of law and 18 U.S.C. 1512(a)(1)(c), witness tampering.

We affirm Causey's convictions and sentence. We reverse Hardy and Davis's convictions for witness tampering, affirm their convictions for violation of 241 and 242, vacate their death sentences and remand their cases to the district court for resentencing.

1. FACTS AND PROCEDURAL HISTORY

This is a direct appeal from convictions arising from the execution-style murder of Kim Marie Groves. Davis, a New Orleans police officer, targeted Groves because she filed a complaint against Davis with the Internal Affairs Division ("IAD") of the New Orleans Police Department alleging that he engaged in police brutality. Davis had a relationship with Hardy, a New Orleans drug dealer, in which Davis exchanged police protection for favors. Davis recruited Hardy and Hardy's associate Causey to kill Groves. Davis, Hardy and Causey planned the murder and subsequent coverup. Hardy was the triggerman who killed Groves.

Davis, Hardy and Causey were charged by indictment with conspiracy to injure, oppress, threaten and intimidate Groves and another individual in the right to be free from the use of unreasonable force by one acting under color of law and in the right to provide information to law enforcement authorities about a federal crime, alleging eight overt acts in furtherance of the conspiracy (Count 1, alleging violation of 18 U.S.C. 241); with the substantive violation of Groves' civil rights (Count 2, alleging violation of 18 U.S.C. 242 and 2); and with killing Groves with the intent to prevent her from communicating information to a federal law enforcement officer relating to the commission of a federal offense (Count 3, alleging violation of 18 U.S.C. 1512(a)(1)(C) and 2). The Government, in accordance with the Federal Death Penalty Act of 1994 (FDPA), filed a Notice of Intent to Seek the Death Penalty against Davis and Hardy. See 18 U.S.C. 3593(a).

Trial began on April 8, 1996. The evidence included recorded telephone conversations among the defendants before and after the murder, during which they planned and attempted to hide their involvement with the crime. The recorded interceptions of Davis's cellular phone conversations were obtained pursuant to a court-authorized investigation of a suspected drug protection racket run by Davis and other corrupt New Orleans police officers. The context of and predicate for the tapes were established by testimony from Sammie Williams, Davis's police partner who was present in the police car during many of the taped conversations. Steve Jackson, who drove the getaway car for Hardy, also testified for the Government.

On April 24, 1996, the jury returned a verdict of guilty on all three counts against Davis and Hardy. Causey was found guilty on Counts 1 and 2. The jury could not reach a verdict and the district court declared a mistrial on Count 3 as to Causey.

On April 25, 1996, sentencing hearings required by the FDPA for Davis and Hardy began in front of the same jury which had heard the guilt phase of the trial. Davis refused to participate in or attend the hearings. On the Government's suggestion, both Davis and Hardy were examined by a psychiatrist, who concluded that both were competent to proceed.

The first part of the penalty phase required the jury to make findings on intent and on the statutory aggravating factors alleged against Davis and Hardy. No new evidence was taken during this part of the hearing. The Government re-introduced all the evidence admitted during the guilt phase. The jury found that Davis intentionally participated in an act, contemplating that the life of a person would be taken or that lethal force would be used, and the victim died as a direct result of his act, pursuant to the factor set out at 18 U.S.C. 3591(a)(2)(C). The jury similarly found that Hardy intentionally killed his victim, thus satisfying the intent element described at 18 U.S.C. 3591(a)(2)(A). The jury also found that Davis and Hardy committed the offense after substantial planning and premeditation, consistent with the statutory aggravating factor set out at 18 U.S.C. 3592(c)(9). The jury, however, could not reach a unanimous finding as to the other statutory aggravating factor alleged against Davis and Hardy, involving pecuniary gain.

The second portion of the penalty hearing, which focused on non-statutory aggravation and mitigation, proceeded seriatim. On April 26, 1996, the jury returned its finding that Davis used his position as a police officer to affirmatively participate in conduct that seriously jeopardized the health and safety of other persons and that Davis posed a threat of future dangerousness to the lives and safety of other persons, recommending a sentence of death.

The second half of Hardy's penalty phase began two days later, on April 29, 1996. On May 1, 1996, the jury found the non-statutory agravators that he committed or participated in additional violent acts and that he poses a threat of future dangerousness to the lives and safety of others. Additionally, four jurors found the mitigating factor that Hardy was abandoned by his natural father and had no suitable male figure in his life; two jurors found that Hardy and his family lived in an abnormally violent environment; all twelve jurors found that Hardy was abused and subjected to violence during his formative years and that he had been traumatized by the death of family members and friends. Nonetheless, the jury unanimously found beyond a reasonable doubt that the aggravating factors sufficiently outweighed any mitigation to justify a sentence of death.

Davis and Hardy were each sentenced on November 6, 1996, to concurrent death penalties as to all three counts of the third superseding indictment. On November 27, 1996, Causey was sentenced to two concurrent life terms. All three defendants filed timely notices of appeal, which are consolidated before this court.

2. JURY SELECTION

Causey, Hardy and Davis allege that the Government exercised its peremptory strikes in a discriminatory manner, so as to exclude African-Americans, particularly African-American females, from the jury.

All three defendants are African-American males, and the victim was an African-American female. There were seventy individuals left in the jury pool after challenges for cause. The Government was allowed 24 peremptory strikes and the defendants, collectively, 26. The Government used nine of its peremptory strikes to challenge African-American females and two to challenge African-American males. One African-American female was seated on the twelve-member petit jury. Of the four alternates selected, three were African-Americans (one male, two females) and one was a white male.

After the jury was seated, the defendants asserted claims based on Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. The district court held that defendants had not made out a prima facie case of discrimination, but nonetheless instructed the Government to articulate a race-neutral reason for each of the challenged strikes. Thereafter, the district court held that the Government's reasons were race-neutral, and denied defendants' Batson challenges.

"When the record contains an explanation for the government's peremptory challenges, this Court will review 'only the propriety of the ultimate finding of discrimination.'" United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997)(quoting United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987)). Moreover, the district court's decision on the ultimate question of discrimination is a fact finding, which is accorded great deference. Id.

Hardy concedes that the Government's articulated reasons were race-neutral and that the Batson challenges are without merit under Fifth Circuit precedent. However, he contends that our standard of review is too deferential and objects to the use of subjective factors when exercising peremptory strikes. This panel is bound by the circuit precedent and Hardy's criticisms of it avail him nothing.

Davis alleges that the Government selectively questioned African-American jurors about their religious views and used their responses as the basis of strikes; that the Government struck African-Americans for reasons that applied to white jurors who were not struck; and that the Government's articulated reasons were "non-quantifiable." Causey complains that the Government's articulated reasons were not credible, not quantifiable and internally inconsistent. Further, Causey characterizes the Government's jury selection as focused on eliminating African-American women due to the erroneous and racist view that they would be more likely to acquit African-American males, based on the fact that the jury that acquitted O.J. Simpson included nine African-American females.

Unless a discriminatory intent is inherent in the prosecutor's explanations, the reasons offered will be deemed race-neutral. See Purkett v. Elem, 514 U.S. 765, 768 (1995). The Government's explanations were...

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