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NO. 96-31171 IN THE
UNITED STATES COURT OF APPEAL
UNITED STATES OF AMERICA, v. PAUL HARDY, also known as P, also known as Cool; and LEN E. DAVIS, APPEAL FROM THE UNITED STATES DISTRICT
COURT DOCKET NO. 94-CR-381-C
ORIGINAL BRIEF FOR THE DEFENDANT/APPELLANT LEN E. DAVIS SUBMITTED BY: PATRICK FANNING, #5441 ARCHIE B. CREECH, #4591
CERTIFICATE OF INTERESTED PERSONS In compliance with the Fifth Circuit Local Rule 28.2.1, Counsel for the Defendant-Appellant certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualifications or recusal.
Oral argument is requested as the appellant herein, Len E. Davis, has been sentenced to death in this matter. Additionally, on information and belief this is the first case in which Federal prosecutors have used Title 18 U.S.C. § 241-242 to seek and obtain the death penalty.
TABLE OF AUTHORITIESUnited States vs.
Davis,
912 F. Supp. 938 (E.D. La. 1996)
STATUTES 18 United States Code
§
241
RULES AND OTHER AUTHORITIES Fifth Circuit Local Rule
28.2.1
CERTIFICATE OF INTERESTED PARTIES
This Honorable Court has jurisdiction over this matter pursuant to Title 28, U.S.C. § Section 1291 and 28 U.S.C. § Section 1294.
1. Whether the evidence was sufficient to support appellant’s conviction on count one. 2. Whether the evidence was sufficient to support appellant’s conviction on count two. 3. Whether the evidence was sufficient to support appellant’s conviction on count three. 4. Whether the trial court properly charged the jury as to count three. 5. Whether the government improperly exercised its peremptory challenges so as to exclude black jurors. 6. Whether the government was guilty of prosecutorial misconduct during argument. 7. Whether the trial court erred in allowing irrelevant evidence to be introduced against the appellant. 8. Whether the trial court erred in allowing the government to introduce testimony and evidence relative to a gun barrel that could not be linked to either the offenses or appellants herein. 9. Whether 18 U.S.C. §§ 3591, et seq., are unconstitutional. 10. Whether the evidence supported the jury’s findings that the appellant posed a risk of future dangerousness. 11. Whether capital punishment in general and as imposed pursuant to 18 U.S.C. § 3591, et seq., constitutes cruel and unusual punishment. 12. Whether the appellant had the right to waive his presence at the penalty phase.
III. STATEMENT OF CASE (A) COURSE OF PROCEEDINGS AND DISPOSITION OF CASE BELOW On December 13, 1994, the appellant, Paul Hardy, and Damon Causey were indicted for conspiring to violate the civil rights of Kim Marie Groves on October 13, 19941, (Vol.1, p.201). The appellant herein was arraigned on December 20, 1994, at which time he pled not guilty. On January 17, 1995, the government filed a three count superseding indictment charging the defendants with one count of conspiring to violate the civil rights of Kim Marie Groves2, one count of violating, under color of state law, the civil rights of Kim Marie Groves3, and one count of killing Kim Marie Groves with the intent to prevent her communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense4. (Vol.2, p. 479). The appellant herein was arraigned on January 25, 1995, at which time he pled not guilty to the superseding indictment. On March 24, 1995 the government filed a second superseding indictment again charging the defendants with violations of 18 U.S.C. §§ 241, 242, and 1512. (Vol. 1, p. 322). The appellant herein was arraigned and pled not guilty to the second superseding indictment on March 30, 1995. (Vol. 2, p. 273). On August 18, 1995, the government filed a third superseding indictment charging the defendants with conspiring to violate the civil rights of Kim Marie Groves5, violating the civil rights of Kim Marie Groves under color of state law,6and killing Kim Marie Groves with the intent to prevent her communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense.7 (Vol. , p. 1185). On July 31, 1995 the government filed a Notice of Intent to Seek the Death Penalty against Len Davis. (Vol.5, p. 1229). On August 25, 1995, the appellant was arraigned on the third superseding indictment and pled not guilty. (Vol.5, p. 1124). Prior to the trial of this matter the appellant, through counsel, filed numerous pre-trial motions.8 On July 31, 1995, the government filed a Notice of Intent to Seek the Death Penalty against Len Davis. (Vol. 1, p. 178). On October 2, 1995 the government filed a Notice of Non-statutory Aggravating Factors upon which the government would rely in support of the death penalty. In said notice, the government asserted four non-statutory aggravating factors it intended to rely upon in the penalty phase. (Vol. 7, p1550). On October 27, 1995, the defense filed a motion to Bar Use of Non-statutory Aggravating Factors. (Vol.8, p.1883). On March 27, 1996, the district court issued an order limiting the government to two non-statutory aggravating factors. (Vol. 11, p.2823); United States v. Davis, 912 F. Supp.938 (E.D. La. 1996). Jury selection began on April 8, 1996, and the government rested in the guilt phase of the trial on April 19, 1996. Also, on April 19, 1996, appellant’s rule 29 motion for judgment of acquittal was denied. (Vol.12, p.3070; Vol. 40, p. 2). Following the presentation of the defense from April 19th through 22nd, the matter was submitted to the jury. On April 22, 1996, the appellant re-urged his rule 29 motion for judgment of acquittal. (Vol. 12, p.3068; Vol. 42, p. 49). The trial court took said motion under submission. On April 24, 1996 the jury found the appellant to be guilty as charged on each of the three counts of the third superseding indictment.9 (Vol. 12, p. 3025). Also on April 22, 1996, the district court found by a preponderance of the evidence that the government had proven the existence of a conspiracy of which the defendants were members.10 (Vol. 42, p. 49). The penalty phase began on April 25, 1996. The appellant waived his right to be present during the penalty phase. (Vol.12, p. 2918). After a hearing and competency examination, the appellant was allowed to absent himself from the penalty phase. (Vol.46, pp.5-13). Following the penalty phase of the trial as to the appellant, the jury recommended a sentence of death on each count. (Vol. 12, p.2900). At the opening of the penalty phase the government reasserted all of the evidence that it had introduced at the guilt phase. The government then asserted that substantial planning and substantial premeditation had been involved in the offenses and that Len Davis had procured the commission of the offense by payment, or promise of payment, of something of value. Following the initial portion of the penalty phase the jury found that the appellant had intentionally committed the instant offenses and that they involved substantial planning and substantial premeditation. The jury failed, however, to agree upon the question of pecuniary gain. The case then proceeded to the final aspect of the penalty phase, at which time the government relied upon the non-statutory aggravating factors that the appellant had used his position as a police officer to endanger the health and safety of others and that he presented a risk of future dangerousness. On April 26, 1996, the jury found that the government had proven each of the non statutory factors beyond a reasonable doubt. After weighing the aggravating and mitigating factors, the jury recommended that the appellant herein be sentenced to death on each count. On July 9, 1996 the appellant filed a motion for judgment of acquittal, a motion for new trial, and a motion to adopt post-trial pleadings of the co-defendants. (Vol. 14, pp. 3656, 3645, 3642). On October 30, 1996 appellant’s post-trial motions were denied. (Vol.14, p.3493). On November 6, 1996 the appellant was sentenced to concurrent sentences of death as to counts one, two and three of the third superseding indictment. (Vol. 14, p.3480). On November 13, 1996, the appellant, through counsel, filed a notice of appeal. (Vol. 14, p. 3470). It is from this conviction and sentence that the appellant now appeals. (B) STATEMENT OF FACTS At the trial of this matter Sergeant John Hebert testified that he was an investigator in the public integrity division of the New Orleans Police Department (hereinafter "NOPD") and that in that capacity he investigated criminal misbehavior by police officers. (Vol. 35, pp. 113-114). Hebert further testified that he was assigned to investigate the beating of one Nathan Norwood that had allegedly occurred on October 11, 1994. (Vol.35, p. 114). Hebert testified that in connection with said investigation, he interviewed the victim herein, Kim Marie Groves, who stated that the appellant, Len Davis, and his partner, Sammie Williams, had struck Nathan Norwood on October 11, 1994. (Vol. 35, p. 119). According to Hebert, on October 13, 1994, he showed Ms. Groves a photographic line up containing pictures of Davis and Williams, at which time she allegedly identified the appellant and Williams. (Vol.35, pp. 126, 128-129). Officer Hebert acknowledged, however, that not all of the details of Ms. Groves’ complaint had been correct. (Vol.35, p. 133-135). Dr. Susan Garcia, a forensic pathologist that worked part-time at the Orleans Parish Coroner’s Office, testified that the victim was killed by a single gun shot to the left side of the head. (Vol.35, p. 151). Dr. Garcia further testified that a projectile jacket and two fragments were recovered from the victim and that test results revealed the presence of cocaine and cocaine metabolites in the victim at the time of her death. (Vol.35, pp. 151-154, 155). Officer Jimmy Ducos of the NOPD crime lab testified that he was assigned to this instant case at about 11:45 p.m., on October 13, 1994. He testified that upon arriving at the scene he spoke to Detective Zenon and then photographed the scene, prepared a sketch, and collected a casing. (Vol. 35, pp. 160-162). Officer Ducos marked the location of a casing with a cone and then took photographs of the cone from different angles. He testified that he placed the casing in a clasp envelope which he then put in an evidence packet and allegedly noted the date and time on the packet. (Vol. 35, pp. 163-164). Officer Ducos further testified that he originally prepared the diagram of the scene on October 14, 1994 and that in December of 1994 he was informed by his rank that the diagram had the wrong cross street and address. More specifically, the original diagram indicated that the cross street was North Robertson and that the scene was in the 1300 block of North Robertson. Ducos testified that on December 13, 1994 he prepared a corrected diagram in which he indicated that the cross street was North Villere and that the crime had occurred in the 1300 block of Alabo. (Vol. 35, pp. 168-170). Ducos testified that he prepared a supplemental report and corrected the diagram, but when he went to the NOPD property and evidence room to change the address on the evidence container, he was informed that the FBI had taken it, so he was unable to correct the report.[11] (Vol. 35, pp. 171,174). Ducos also testified that he did not initial the casing allegedly found on the scene and that one brass nine millimeter casing looks like another. He further testified that the only way he could identify the casing was by the envelope. (Vol. 35, pp. 176-178). Finally, Ducos testified that he did not actually change the diagram but, rather, prepared an entirely new diagram (10-18). (Vol. 35, p. 180). Major Felix Loicano of the NOPD testified that on November 9, 1994 he was in charge of the criminal investigations division which handled the more serious crimes. In that connection, he was allegedly asked to provide the FBI with all of the Police Department’s evidence relative to the Groves murder investigation. (Vol. 36, pp. 6-7). Loicano testified that all of the evidence related to the instant offense was contained in the following three parcels: a paper bag containing clothes and other miscellaneous items including a medicine bottle with pills and a pipe, a second parcel containing the fragment of a spent bullet, and a third parcel containing a spent nine millimeter casing. Loicano further testified that when he reviewed said evidence, he was required to break the seal on the envelopes. (Vol. 36, pp. 8-10). Loicano made it clear that he was not on the scene, he did not collect any evidence, and he just transferred the evidence to the FBI. (Vol. 36, p. 13). Loicano also testified that the casing had a silver look to it and that all nine millimeter casings that color looked the same. (Vol. 36, p. 15). Finally, he testified that the casing was allegedly taken by someone from the Forensic Light Unit on November 7th and returned on November 8th. (Vol. 36, p. 15). Agent Kathleen Adams of the FBI testified that she was in charge of looking after the evidence in this case. She testified that she picked up the evidence on November 9th from Loicano and reviewed the contents of each parcel to make sure it contained what was written on the package. (Vol. 36, pp. 18-19). Adams testified that when she received the evidence she initialed and dated the package in the corner and that the other numbers on the package referred to tests the packages had gone through. (Vol. 36, p. 19). She did not initial the casing, however, Adams further testified that the casing allegedly obtained from the scene went to ballistics, then to the fingerprint unit, and then back to ballistics for tests. (Vol. 36, p. 39). No finger prints were found on the casing. (Vol.36, p. 21). She allegedly got the casing back on April 14, 1995. (Vol. 36, p. 25). According to Adams, the casing was removed for viewing on August 8, 1995 and September 26, 1995. (Vol. 36, pp. 25-26). Adams also testified that a computer printout was generated as a result of the 911 calls received by the New Orleans Police Department in this matter. (Vol. 36, p. 36). She testified that she was familiar with 911 tapes in her experience as a police officer in Baltimore and that she knew that the 911 tapes had the caller’s voice, the identity of the caller if given, what had occurred, the location of the incident and the description and/or name of the suspect. (Vol. 36, pp. 40-43). She testified that she never received the reel to reel 911 tapes and never handled or listen to them. In fact, Adams testified that no one from the FBI listened to the tapes. She had asked the New Orleans Police Department for tapes of Channels 4&5 which are the 911 calls. Adams further testified that certain 911 tapes were returned to the NOPD where they were taped over. According to Adams the 911 tapes from October 13th no longer existed. (Vol. 36, p. 43). Adams testified that she did not realize that the tapes contained 911 material and that she had returned them to the NOPD because the police department had a tape shortage. (Vol.36, p. 27). Adams also testified that in an effort to locate a nine millimeter barrel allegedly used in these offenses, a diving expedition had been conducted on three separates dates in the industrial canal on the north side of the industrial canal bridge that crossed at Florida Avenue. On one such dive, a nine millimeter barrel was allegedly recovered. (Vol. 36, pp. 29-30). The first dive occurred in October, 1995 and the barrel was allegedly recovered from the canal on November 28, 1995. (Vol. 36, pp. 45-46). She testified that she had met with Steve Jackson between 5 and 10 times prior to initiating the dives. She first learned about the alleged existence of the barrel in August, 1995. (Vol. 36, pp. 46-48). The divers stopped their search after recovering a barrel. (Vol. 36, p. 53). The dives were limited to only one side of the bridge. (Vol. 36, p. 54). Adams testified that she interviewed Steve Jackson on August 10th, at which time she asked him if there were any other details that he could think of. Jackson at that point, for the first time, informed her of the barrel. (Vol. 36, p. 56-57). She testified that on the day that Jackson allegedly informed her of the barrel, she knew that the test results were inconclusive as to whether the lead fragment and jacket found in the victim’s skull matched the gun found in Causey’s bedroom. (Vol. 36, p. 60). Karen Jenkins, an agent with the FBI, testified that she intercepted telephone conversations in 1994 in an unrelated case. (Vol. 36, p. 71). Sergeant Larry Labry III, Commander of the NOPD Electronics Support Station, testified regarding the Police Department’s recording of 911 calls and dispatch channels. (Vol.36, p. 87). Labry testified that in November, 1994, Sergeant Willie Davis asked him to turn over tapes which included 911 calls and radio channels. The tapes were returned to Labry around January 10, 1995 by Sergeant Davis. (Vol. 36, pp. 91-92). Labry further testified that he did not get all the tapes back at the same time and that he did not know which tapes he got back first. He did testify, however, that Sergeant Davis told him that he was free to reuse the tapes. Finally, Labry testified that if either Sergeant Willie Davis or the FBI had needed more time they could have kept the tapes longer. (Vol. 36, pp. 92-93). The government next called Steve Jackson, the first witness to testify as to the crime itself. Jackson, an admitted drug dealer, liar, attempted murderer and convicted felon, testified that on the night of October 13, 1994 Paul Hardy came to his house and asked Jackson to take him across the canal. (Vol. 36, pp. 100,129,130). Jackson testified that he and Hardy first drove to Damon Causey’s house which was about one house away from Steve Jackson, at which point Hardy allegedly went into Causey’s house. (Vol. 36, p. 116). Jackson was allegedly driving his sky blue 1991 Nissan Maxima. (Vol.36, p. 117). Jackson testified that he waited in the car while Hardy went into Causey’s house. According to Jackson, when Causey and Hardy came out of Causey’s house, Hardy allegedly had a jacket on his arm and was putting a nine millimeter gun in his trousers. (Vol. 36, pp. 117-118). Jackson testified that Hardy told Causey to sit in the front, Hardy sat in the back while Jackson drove the vehicle. (Vol. 36, p. 118). Jackson further testified that at Hardy’s direction, he allegedly drove across the industrial canal to the Lower Ninth Ward. (Vol. 36, p. 118). Jackson testified that Hardy was saying that "he gots to do this for his nigger" but did not identify who "his nigger" was. (Vol. 36, p. 120). Jackson allegedly knew what was going to happen because of the way Hardy was dressed and the fact that Hardy had cocked the gun. Hardy, however, did not tell Jackson what he was going to do. (Vol. 36, p. 121). Jackson testified that at Hardy’s direction, he parked on Charbonnet. Hardy then allegedly got out and went up the street on the side of a building. (Vol. 36, pp. 121-122). Jackson further testified that he and Causey remained in the car with the radio on and the windows half open and that Hardy took so long that Jackson became inpatient. (Vol. 36, pp. 122-123). Jackson testified that eventually Hardy came running back to the car, jumped in, and told him to hurry up. (Vol. 36, p. 199) Hardy at that point allegedly said "I hit the bitch." (Vol. 36, p. 123). According to Jackson, as the three men were on their way back from the alleged shooting, Paul Hardy threw the barrel of the gun into the industrial canal and switched barrels. (Vol. 36, p. 124). Once back in the Florida project Hardy allegedly gave Causey the gun and Causey put the gun in his pants with the shirt over it. (April 16, p. 126). Jackson testified that the next day when he saw Hardy, Hardy told him "he had to do this for his nigger, Lennie kept bothering him about doing this". Although Hardy did not indicate who "Lennie" was, Jackson "knew" it was Len Davis. (Vol. 36, p. 127). Jackson testified, however, that he did not know before driving Hardy across the canal that Hardy was going to do this for Len Davis. (Vol. 36, p. 127). In addition to testifying to the alleged facts of the case, Steve Jackson testified that he and Damon Causey were "in the game." "In the game" was an expression meaning that a person sold drugs, shot at people, robbed, and killed. (Vol. 36, pp. 102,103-129). He testified that he had a prior conviction for possession of cocaine and that he had pending charges of possession with intent to distribute cocaine and being a convicted felon in possession of a firearm. (Vol.36, p. 108). Jackson testified that the first two times he was interviewed by the FBI he lied in order to protect himself. Finally, he readily acknowledged that he would not hesitate to lie to help himself. (Vol. 36, pp. 109-110, 170). Erma Reese, an agent with the FBI, testified that she and Sergeant Joseph Hebert of the NOPD, twice re-traced the route to and from the scene as described by Steve Jackson. Reese testified that the first round trip from the Florida Projects to the crime scene then back again took a total of 13 minutes and 46 seconds. The second trip took 13 minutes and 43 seconds. (Vol. 36, pp. 229-230). Kenneth Fechtler testified that he was a professional diver and had been hired by the FBI to search for a metal object approximately 4 inches long and 2 inch in diameter on one side only of a bridge over the Industrial Canal. (Vol. 36, pp. 235-236). He testified that his first dive was on October 18, 1995 and that he did not find anything on that date. He continued the dive on November 28, 1995, at which time he allegedly found a nine millimeter barrel and a Texas license plate.[12] (Vol. 36, p. 240). Finally Fechtler testified that he was not asked to search on either the other side of the bridge or further out from the bridge. (Vol. 36, pp. 245-246). Sammie Williams, Len Davis’s partner at NOPD and the only other government witness to testify as to the crime itself, testified that he and Len Davis had become partners in January or February of 1994. (Vol. 37, p. 302). Williams testified that on October 11th he and the appellant were looking for one Dwayne LeBlanc as a suspect in the shooting of Officer Michael Mims. According to Williams, as he and the appellant approached North Claiborne and Tupelo, they saw an individual who, upon seeing the officers, fled. Williams testified that following a chase, he apprehended the suspect and hit him in the back of the head with his gun. (Vol. 37, pp. 317-318). Williams testified that the individual turned out to be the wrong person. (Vol. 37, p. 319). Williams further testified that the victim herein, Kim Marie Groves, came up and asked what they have done to her nephew. Williams testified that he had words with the victim on October 11th but that he did not know whether or not Len Davis did. (Vol. 37, p. 323). Williams testified that they did not see the victim on October 12th but that at approximately 1:00 a.m. October 13th, Len Davis called him and stated that Kim Marie Groves had made a complaint against him. (Vol. 37, p. 324). Len Davis had allegedly heard about this complaint from his cousin, "Little June". (Vol. 37, p. 324). Williams testified that he told Len Davis that there was nothing to worry about as Williams was the only person to hit the suspect. (Vol. 37, p. 325). Williams testified that the appellant got real angry and stated that he was tired of the Internal Affairs Division (IAD) and that he was going to send IAD a message. Williams also testified that it was not unusual for the appellant to get angry at IAD. (Vol. 37, tr. p. 326). Williams testified that on October 13, 1994 he and the appellant came on duty at approximately 2:25 p.m. and that they had no contact with Ms. Groves prior to that time on October 13th. (Vol. 37, p. 325). According to Williams, at about 5:00 p.m. on October 13th, while he and the appellant were stopped at a traffic light, a car containing the victim, the suspect that Williams had struck, the suspect’s twin brother and his mother, pulled up next to them. Kim Groves was allegedly mouthing the words "that’s them, that’s them," and appellant allegedly pointed back at the victim saying "I see you too, I see you too." (Vol. 37, pp. 325-327). Williams testified that the appellant got very angry and said "I could get Paul to do that whore and we can handle the 30." (Vol. 37, p. 327). Williams testified that the appellant then paged Paul Hardy.[13] Williams testified that the appellant continued to beep Hardy but that Hardy did not call back until an hour or so later. (Vol. 37, p. 329). Williams testified without elaboration or explanation that he "gathered" that the appellant had already talked to Hardy about the situation with Kim Groves. (Vol. 37, p. 330). According to Williams, at approximately 7:30 p.m. on the night of October 13th, Williams and the appellant drove across the canal to the Lower Ninth Ward in an unsuccessful attempt to see if they could find Kim Marie Groves. Williams testified that the appellant then called Paul Hardy and met Hardy at Morgan Ricks’ House. At that point, according to Williams, Hardy came out of Rick’s house, spoke to the appellant, and then got in the back seat of the police car. The three men then allegedly went back across the canal to look for Ms. Groves. (Vol.37, pp. 339-341). Williams testified that this latter trip was only to enable Hardy to become familiar with what Groves looked like. (Vol. 37, p. 341). Williams testified that the appellant asked Hardy if he had a gun and Hardy responded that he did. Williams allegedly turned around and saw Hardy pull up a black nine millimeter. (Vol. 37, p. 342). Williams further testified that once they arrived in the area where they had seen the victim in the past, they parked and Paul Hardy got out of the car allegedly to look for Groves. After waiting awhile, Williams and Davis then allegedly drove around looking for Paul Hardy. When they found Hardy, Hardy got in the car and said that he couldn’t find Groves. (Vol. 37, p. 342). According to the government, this drive occurred sometime after 7:44 p.m. (Vol. 37, p. 343). Williams then testified that after they dropped off Paul Hardy, they did not hear from Paul Hardy again until 9:45 p.m. (Vol. 37, p. 344). Davis and Williams at that time allegedly went back across the canal where they allegedly saw Groves in the middle of Alabo talking to another individual. According to Williams, the appellant began beeping Paul Hardy. Upon getting in touch with Hardy, the appellant allegedly gave Hardy a detailed description of the victim’s appearance. (Vol. 37, p. 346). Williams testified that he got off work at 10:30 p.m. on the night of October 13th and that as of that time Paul Hardy had not called back to indicate what had happened. Williams testified that he felt that Hardy had been procrastinating and that "it" was not going to actually happen that night. (Vol. 37, p. 347). Williams testified that at 10:50 p.m. on October 13, he got a call from the appellant saying "signal 30 NAT". Williams explained to the jury that "30" was a police code for murder and "NAT" was a police code for necessary action taken. Williams then testified that he met with the appellant at Flynn’s Den, and upon driving up observed the appellant holding a telephone in one hand and a police radio in the other. It was Williams’s impression that the appellant was attempting to obtain a confirmation of Kim Grove’s death. (Vol. 37, pp. 353-355). Williams testified that at no time did the appellant in any way strike Nathan Norwood, the individual that was the alleged victim in the incident made the basis of the IAD complaint, and that he had no doubt that Kim Marie Grove’s complaint with IAD would have been determined to be unfounded. (Vol. 37, p. 378-379). He further testified that at no time did he try to talk the appellant out of this alleged murder or out of being angry. (Vol. 37, p. 384). He testified that neither he nor the appellant did "handle the 30" and that neither he nor the appellant went to the scene of the crime, handled the scene of the crime, talked to or threatened witnesses, or removed or planted evidence at the scene. (Vol. 37, p. 385). He further acknowledged that there was no tape recording in which the appellant told him that he wanted to kill Ms. Groves. (Vol.37, p. 395). Finally, he testified that he thought Len Davis was a good cop. (Vol. 37, p. 399). Gary Washington, an NOPD officer in the 5th District, testified that on October 13, 1994, he got a radio dispatch of an aggravated battery by shooting. The call came out at approximately 10:58 p.m. and he arrived with his partner, Len Major, on the scene at approximately 11:01 p.m. (Vol. 37, pp. 435-438). Washington testified that he interviewed a total of 3 witnesses although none of the witnesses were mentioned in the police report prepared in connection with the offense. (Vol. 37, pp. 441,446, 450). Washington further testified that the first two witnesses described the getaway vehicle as being a champagne color Maxima and the third witness allegedly described the vehicle as blue. (Vol.37, pp. 442-446). Washington acknowledged that the two individuals describing the vehicle as a champagne colored Maxima gave more detailed information then did the third alleged eye witness. (Vol. 37, p. 459). Most importantly, Washington testified that the first two witnesses gave him their names, whereas the third alleged witness was unidentified. (Vol. 37, pp. 441-457). Washington testified that the computer print out of 911 calls that came in and his calls that went out made no reference to a blue Maxima. (Vol. 37, p. 460). Finally, Washington testified that he had no evidence indicating that the appellant ever appeared on the scene, disturbed the scene, or disposed of any evidence. (Vol. 37, p. 465). Sergeant Eric Hessler, a NOPD homicide detective, testified that he went directly to Charity Hospital and confiscated the victim’s clothing, property and evidence. Two of the items recovered from the victim were a glass pipe and a steel rod. (Vol. 37, pp. 469). The government stipulated that the glass pipe was a pipe that people can use to ingest crack cocaine. (Vol. 37, p. 469). Hessler acknowledged that he had never seen a pipe in that state ever used for anything else. (Vol. 37, p. 470). Finally, the government stipulated that the glass pipe tested positive for cocaine. (Vol. 37, p. 474). The government next called a series of FBI agents to testify regarding various searches involved in this case. More specifically, Daryl O’Donnell testified that he executed a search warrant on a Cherokee Jeep and found a firearm with an adaptor later learned to be a laser sight. There was also documentation in the glove box in the Jeep. Agent O’Donnell testified that he did not search Len Davis’s residence. (Vol.37, pp. 474-478). Ron Curtis testified that he participated in a search of the residence of 2515 Mazant, Apartment D. As a result of the search he allegedly recovered various weapons and clips, all fully loaded. Additionally, he recovered ammunition, clothing and crack cocaine. He also searched the black Cherokee Jeep. As a result of the searches a variety of receipts from the Chalmette Jewelry and Sporting Goods Store were recovered, all identifying Paul Hardy as the owner of the firearms represented by the receipts. (Vol. 37, pp. 479-484). Finally, Agent Curtis testified that he saw nothing in either the residence at 2515 Mazant or in the Jeep Cherokee linking them to the appellant, Len Davis. (Vol. 37, p. 485). Agent Bradley Michael testified to his involvement in the search of 2526 Mazant, Apartment C. Agent Michael testified to recovering a .45 caliber revolver and several loaded magazines for an AKA 47 style rifle. He also testified to recovering a bill of sale for the .45 revolver indicating that Paul Hardy was the purchaser. (Vol. 37, pp. 487-489). He further testified that there was nothing in the apartment in Len Davis’s name, and no indication that Davis had ever been there. (Vol. 37, pp. 489-490). Eric Vasys testified to the search of 7079 Barrington Court. As a result of the search, a .45 Ruger was recovered as well as a loaded magazine next to the weapon and some .45 caliber ammunition. Likewise, he recovered a .22 rifle and ammunition as well as two loaded banana clips and a blue steel Derringer. The search further revealed some shotguns and handguns in various locations in the house and a .25 caliber Beretta in a purse in the master bedroom. Vasys also testified that a triple beam scale and a box of Ziploc bags were recovered. (Vol. 37, pp. 491-494). The government’s final witness was James Churchman, a ballistics expert who examined the casing found at the crime scene, the nine millimeter Beretta that was found in Damon Causey’s chest of drawers, and the barrel that was recovered by divers from the Industrial Canal. Churchman testified that in his opinion the casing found at the murder scene had been fired by the weapon found in Damon Causey’s chest of drawers. He further testified that due to the corroded condition of the barrel found in the Industrial Canal, he could not say to any degree of certainty whether or not the bullet fragment and jacket found in the victim had been fired through the recovered barrel. Churchman testified, however, that the recovered barrel fit the weapon found in Causey’s house. (Vol. 39, pp.128-170). Len Davis first called Richard J. Pennington, Superintendent of the New Orleans Police Department. The defense questioned Chief Pennington regarding an article in the New Orleans Times Picayune dated April 5, 1996 referring to operations entitled "Rock-a-bye One and Rock-a-bye Two".[14] Although Pennington was not familiar with such operations, he acknowledged that sometime narcotics operations targeting certain areas were not first cleared with him. (Vol. 40, pp. 9-10). Pennington also testified that he did not know that the term "Rock-a-bye-baby" came from the movie New Jack City. (Vol.40, p. 17). Finally, Pennington testified that street level police officers did not have the authority to engage in an undercover drug operation unless they received specific approval from their supervisor. Such an officer, however, would certainly be able to arrest an individual observed committing a drug offense. (Vol. 40, pp. 17-18). The defense next called FBI agent Lester W. Tamashiro. Tamashiro testified relative to his interviews of Sammie Williams on the question of procurement/pecuniary gain.[15] Another defense witness, NOPD Lieutenant Steve Gordon, testified that the police department had civilians that answer the 911 line. They enter information into the computer and that information is sent to a radio dispatcher who is connected to police officers by radio. (Vol.40, p. 44). Gordon testified that the civilian that answers the 911 line is responsible for getting the proper information from the citizens, writing it up in the complaint history, and then dispatching it to police officers in the field. Gordon testified that the dispatcher does not listen to any of the telephone conversations between the citizen and the 911 operator but, rather, gets his or her information from the computer screen. (Vol.40, p. 45). Lieutenant Gordon further testified that conversations between citizens and the 911 operator are recorded in their entirety, whereas the dispatcher only receives the information that the complaint operator has typed into the computer. (Vol. 40, pp. 46-47). Lieutenant Gordon testified that with respect to the instant case, the complaint history reflected a description of "perpetrator, three black males fled in a champagne color Maxima on Lamanche Street." The complaint history reflected that a minute after the first call came in, a second call came in also indicating three black male perpetrators in a champagne Maxima. Thus the description of a champagne Maxima was given twice. (Vol. 40, p. 49). On cross-examination the government played a tape for Lieutenant Gordon, and he acknowledged hearing "I have a color of a blue Maxima so anything blue or champagne, stop." (Vol. 40, pp. 50-51). But Gordon testified that the reference to the blue Maxima was not in the complaint history. (Vol.40, p. 51). Robert Tucker, Supervisor of the FBI Violent Crime Squad in New Orleans, next testified for the defense. Tucker testified that the FBI came into possession of NOPD transmission tapes for October 13, 1994 and later learned that those tapes also contained 911 calls. He testified that he was not aware that the FBI had ever attempted to make copies of the 911 tapes as he had not known at the time that any 911 calls were on the tapes. (Vol.40, pp. 53-56). Tucker further testified that he had heard excerpts from electronic tapes obtained in a separate investigation in which there were police transmissions that he felt were pertinent to the other investigation. He or Cathy Adams requested the NOPD tapes from September 15th thru October 31st and in response to that request, he obtained 67 tapes, 22 of which were returned to the police department on December 5th. (Vol. 40, pp. 57-58). Finally, Tucker acknowledged that the tapes were not in his custody 100% of the time so it was possible that some other agent unbeknownst to him had checked out the tapes and taken them over to the police department to listen to them. (Vol. 40, p. 65). The parties entered into a stipulation that on the night of October 13, 1994, at the time the various tapes were being recorded, Nanette Brier, an employee of the FBI was listening simultaneously to the conversations as they were being recorded. (Vol. 40, p. 68). Rudy Gorrell, Steve Jackson’s attorney, also testified as a witness for the defense. Mr. Gorrell testified as to Steve Jackson’s cooperation and plea bargaining agreement with the government. He further testified that Steve Jackson fully understood that the filing of a 5k motion by the government would depend on the government’s evaluation of Jackson’s testimony. (Vol. 40, pp. 73-78). Gorrell also testified regarding the fact that Jackson’s sentencing had been continued several times in order that the government could see how well he testified in this case. (Vol. 40, p. 83). Defense witness, Sylvester "Jimmie" Jones, testified that he and the victim began having a girlfriend-boyfriend relationship in 1990. At one time they lived together at 1642 Tennessee Street. Although Jones characterized his relationship with the victim as being peaceful, he also testified to various incidents of violence. More specifically, Jones testified that there were times when Groves had to call the police because of their fighting, and in July of 1991 she was forced to go to the hospital as a result of one of their fights. (Vol. 40, pp. 89-90, 91-92). Jones also testified that he had a 1984 conviction for forgery, a 1984 conviction of possession of a controlled dangerous substance, to-wit: Talwin and a 1984 conviction for aggravated burglary. (Vol. 40, p. 99). The defense next called Roland Joseph Smith, a witness that knew both the victim and Sylvester Jones. Smith testified that in October of 1994 and at present, he was living with Lorraine Ford. (Vol.40, p. 102). Smith testified that he had seen Jones and Groves get into two fights that were brutal. Smith testified that in one such fight Jones struck Groves and then kept hitting her. (Vol. 40, p. 103). Smith further testified that on another occasion Jones hit Groves and then dragged her by the hair. (Vol.40, p. 104). Smith further testified that on the night of the incident herein he was at the corner of Lamanche and Villere, about two blocks away from Alabo Street. From his vantage point he could see the particular area where the victim was but he did not know that the person he saw was Kim Groves. He said he began walking towards Alabo Street and saw a scuffle. The individual threw her hands up, and he thought he saw a gun go off. Smith testified that he actually saw the flash of the muzzle and heard the shot that killed Ms. Groves. Smith further testified that upon hearing the shot and seeing the person shot Smith started moving backwards. As he was walking he noticed a car parked on the side between Villere and Charbonnet Streets. The man that who fired the shot came trotting towards him and got into that car. The perpetrator got as close as a half a block from him. Smith testified that the car the perpetrator got in was a champagne colored Maxima. (Vol. 40, pp. 106-109). At trial Smith denied telling police officers that he had ever previously seen Sylvester Jones in a champagne colored Maxima but did admit to having said he had seen a Maxima. (Vol. 40, pp. 109-110). Smith denied being afraid of Sylvester Jones but testified that when, on the day after the incident, Jones asked him what he had seen, Smith deliberately lied and said he had seen a blue Chevrolet. (Vol. 40, p. 111). Smith also testified that the perpetrator got into the left rear door of the Maxima. (Vol. 40, p. 113). Lorraine Ford testified that on the night of the incident she heard a noise and when she turned around she saw a flash coming from a gun and the victim’s hands go up and her body hit the ground. (Vol. 40, p. 129). She testified that the perpetrator was a black male about the size of Sylvester Jones. (Vol. 40, p. 130). She also testified that when, on the day after the incident, Jones asked her some questions about the incident, she lied because she was afraid. (Vol. 40, p. 131). Note that Jimmy Jones was in the court room during Ms. Ford’s testimony. (Vol.40, p. 133). Defense witness, Anthony Small, a detective in the New Orleans Police Department, homicide division, testified that on the night of October 13, 1994 he responded to a scene of a shooting on Alabo Street. While there he interviewed Lorraine Ford who described the perpetrator as being a dark complected black male, approximately 5'8 with a medium build, wearing a dark jacket and dark colored pants. Ford also indicated to Officer Small that the perpetrator had somewhat similar characteristics to Ms. Grove’s boyfriend. Finally, Ms. Ford indicated to him that the getaway car was a four-door champagne colored Maxima. (Vol. 40, p. 138). Small further testified that he also interviewed Roland Smith and that Smith told him that he heard a single gun shot and when he looked down the street, he observed a black male dressed in all dark clothing run and jump into a champagne colored four-door Maxima. (Vol. 40, p. 139). Small also testified that Smith described the relationship between Kim Marie Groves and her boyfriend as being brutal. (Vol.40, p. 139). NOPD homicide detective Norbert Zenon testified that he was assigned to this case, and on October 19, 1994 he spoke to Lorraine Ford and Roland Smith. Detective Zenon testified that at that time Ms. Ford explained to him that on the night of the incident she was talking to the victim and some friends and the victim walked away after the conversation. Zenon testified that Ford said that someone that fit the physical description of the victim’s boyfriend then walked by and walked up to the victim. She further told Zenon that she heard the victim shout a name that sounded like Jimmy, as in the name of her boyfriend. Ford told Zenon that at that point she observed the subject shoot the victim, then run past her and get into a Maxima that was parked in the next block. She described the Maxima as being champagne colored. Finally, Zenon testified that Ford told him that she had seen Groves and her boyfriend arguing earlier that day. (Vol. 40, pp. 144-146). Detective Zenon also testified that he spoke to Roland Smith on October 19th and that Smith explained to him that at the time of the incident he was standing about a half block from the scene and saw Jimmy run to a champagne colored Maxima. Zenon testified that Smith specifically said that he saw Jimmy. He did not say he saw Jimmy shoot the victim but, rather, that he heard the gun shot, saw the muzzle flash and saw Jimmy run to a champagne colored Maxima. Smith told Zenon that he had seen Jimmy in that Maxima before. According to Zenon, Smith said that he had seen Jimmy beat Kim to the point that she had to go to the hospital. Zenon further testified that on the same day that Smith said the perpetrator was Jimmy, Smith indicated that he would not say anything further about it and would not talk to anyone else about it. Zenon testified that Smith specifically said that Jimmy had shot Kim but he wouldn’t go to court on it. (April 19, tr. pp. 146-148). Zenon testified that he interviewed Smith again on November 14th, at which time Smith reiterated that Jimmy did it and that he had seen Jimmy run to the Maxima. Zenon testified that he asked Smith if he would be willing to look at a photographic line up and Smith refused. (Vol. 40, pp. 148-149). The defense called Lester W. Roame as a ballistics expert to testify regarding the tests he conducted on the nine millimeter Beretta pistol, a magazine that fit that pistol, 13 rounds of nine millimeter ammunition that had not been fired, a variety of fired and recovered components from various nine millimeter cartridges, unfired components from four rounds of nine millimeter hydroshock ammunition that had been disassembled, one fired cartridge case that have been identified to him as an evidence cartridge case, one copper bullet fragment and two lead core fragments identified as the evidence bullet. He did not see nor did he test a rusted barrel that would fit a Beretta. (Vol. 40, p. 164). As a result of his tests he agreed with the conclusion of government’s expert James Churchman that the evidence bullet was not fired from the evidence pistol.(Vol. 40, pp. 173,176). Roame testified that the bullet fragments were not fired through that gun with that barrel and that whatever goes through the barrel would naturally be affected by which ever barrel was in the gun. (Vol. 40, p. 177). Roame further testified that he tested a casing fired from the evidence gun to determine if the evidence casing came from the evidence gun. His results in this respect were inconclusive because although the breach face marks on the cartridge case matched up on the two different casings, the exemplar cartridge cases had no ejector marks whereas the evidence cartridge case did. (Vol.40, pp. 183-185). Roame indicated that the results were also inconclusive as the extractor marks left on the evidence casing did not match those on the exemplar casing. (Vol. 40, p. 187). He testified that the fact that the barrel may have been changed would have not accounted for the differences between the claw marks on the evidence casing and those on the exemplar casing. (Vol. 40, pp. 189-190). Moreover, according to Roame, there were over 20 types of nine millimeter guns that would have the same twist or general rifling characteristics as the jacket that was recovered and given to him. Additionally, some .357 and .38 caliber revolvers also have six groove right hand twists with the same approximate groove width. Thus, Roame testified that there might be hundreds to thousands of guns with the same twist or general rifling characteristics as shown on the jacket that was recovered. (Vol. 40, pp. 190-191). The defense next called FBI agent Stan Hadden who testified that he contacted Sgt. Willie Davis of the NOPD’s internal affairs division requesting a certain number of tapes that recorded radio transmissions of the radio traffic of NOPD. Hadden testified that Willie Davis brought him the requested tapes and other tapes that had not been requested. Hadden also testified that no 911 tapes were requested. (Vol. 40, pp. 219-221). The defense then asked Hadden from whom he had gotten the tapes in order to return them to the New Orleans Police Department. Hadden responded that he had been the case agent on an investigation unrelated to this case and that during that unrelated case they were executing wire taps on certain telephones which had already been described as being in the possession of Len Davis and Sammie Williams. Hadden testified that it was during that unrelated case that they stumbled upon tape recordings which they believed indicated that a murder had been committed, that is, the murder of Kim Groves. (Vol. 40, pp. 221-222). Hadden went on to testify that in this unrelated case he was doing a public corruption investigation.[16](Vol. 40, p. 222). Hadden ultimately answered the question posed by the defense by testifying that the clerical employee, Karen Nelson, of the bulky evidence room of the FBI, gave the tapes to him to return to the NOPD. Finally, counsel for Damon Causey asked agent Hadden if the other investigation had gone on for about 11 months, to which Hadden responded that "the covert phase of that investigation ended with the arrest of the three defendants on December 5, 1994." (Vol. 40, p. 227). This latter response necessitated the Court’s side bar instructions to the government to talk to the witness and "get him straight". The appellant’s final witness was NOPD Lieutenant Bruce Adams. Lt. Adams testified that in October of 1994 there was an operation that the NOPD narcotics division originated called “Rock-a-bye.” Adams testified that the operation had been under way for a matter of months prior to October, 1994. Adams further testified that operation Rock-a-bye One ended in 1994 and that Rock-a-bye Two started approximately 5 months before trial. (Vol. 40, pp. 228-230). Adams testified that it was a secret operation that didn’t go beyond the confines of the narcotics division and that during the existence of the operation it was most likely that other officers did not know about it. Adams testified that he had heard the expression used in a movie and that the term had become slang on the street for someone that was killed. (Vol. 40, p. 231-234). Finally, Officer Adams testified that Len Davis had nothing to do with either operation Rock-a-bye One or Rock-a-bye Two. The government next asked officer Adams why Len Davis was not involved in either of said undercover operations, to which Officer Adams responded "His reputation mainly."[17](Vol. 40, pp. 235-236). Following the presentation of appellant’s defense, Hardy and Causey presented their cases, and the defense rested. The government offered no rebuttal.
1. The evidence did not show that the appellant was acting under color of law as required by 18 U.S.C. § 241 and 242 and the jurisprudence thereon. 2. The evidence did not show that any of the law enforcement officer communications which the appellant allegedly sought to prevent would have been with a federal officer. 3. The trial court failed to properly instruct the jury as it failed to include an instruction that at least one of the law enforcement officer communications the appellant allegedly sought to prevent would have been with a federal officer. 4. The prosecution improperly used its peremptory challenges to excuse black jurors. 5. The prosecution was guilty of prosecutorial misconduct when it argued facts outside the evidence. 6. The trial court erred in allowing irrelevant evidence to be introduced against Len Davis at trial. 7. The trial court erred in admitting testimony and evidence relative to a gun barrel that was not linked to either the appellants or the crimes herein. 8. Title 18 U.S.C. § 3591, et seq., are unconstitutional as constituting improper delegations of duties and in not allowing for meaningful appellate review. 9. The evidence was insufficient to support the jury’s finding that the appellant posed a threat of future dangerousness as the evidence did not show that appellant posed a threat of future dangerousness while incarcerated. 10. The death penalty constitutes cruel and unusual punishment in general and as imposed pursuant to 18 U.S.C. § 3591, et seq., as the unlimited and unguided discretion of the prosecution in deciding when to seek the death penalty results in arbitrary and capricious sentences of death. 11. The appellant should not have been allowed to waive his presence at the penalty phase.
V. ARGUMENT The court erred in denying appellant’s motions for judgment of acquittal as to counts one and two since the government failed to prove that the actions of appellant as they pertain to those offenses were undertaken under color of law. Count One charges appellant Davis with conspiracy to deprive Kim Groves of rights secured to her by the United States Constitution by taking her life while acting under color of law, a violation of 18 U.S.C. § 241. Count Two alleges that appellant, while acting under color of the laws of the State of Louisiana, did deprive Kim Groves of her constitutionally protected right to be free from the use of unreasonable force by one acting under the color of law by killing Ms. Groves, a violation of 18 U.S.C. § 242. Each of these offenses requires a finding that appellant’s conduct during the commission of these offenses involved actions taken under color of law, presumably in his capacity as a New Orleans police officer. While U.S.C. § 241 does not contain express language requiring that the offense must be committed under the color of State law, the courts have effectively imposed that requirement by requiring proof of state action when the victim is alleged to have been deprived of a right guaranteed by the United States Constitution. United States vs. Tarpley, 945 F. 2d 806, 808 (5th Cir. 1991). This requirement was acknowledged by the government in its language in the indictment in Count One. In defining the constitutional rights of which the victim was deprived the indictment states “(1) the right not to be deprived of liberty without due process of law, that is, the right to be free from the use of unreasonable force by one acting under color of law, in that defendants Len Davis, Paul Hardy, a/k/a “P”, a/k/a “Cool”, and Damon Causey were acting under the color of the laws of the State of Louisiana at all times, relevant to this indictment...(emphasis added). As stated in Tarpley, supra at footnote 2: “Although the latter provision (18 U.S.C. § 241) does not contain the words under color of law; proof of state action is necessary whenever it is an essential element of a constitutional violation”. An analysis of “color of law” and what that term means as applied in this context begins with the case of United States vs. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed 2d 1368, (1941). In that case the court held that actions were taken “under color of law” if they were the exercise “of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law”. Classic, supra 313 U.S. at 326, 61 S. Ct. at 1043. In the case of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031 (1945) the Supreme Court again addressed the color of law issue. The Court held that “under color of law means under `pretense’ of law. Thus, acts of officers in the ambit of their personal pursuits are plainly excluded”. 325 U.S. at 11, 65 S.Ct. at 1040. In Screws, the victim was beaten to death by law enforcement officers after they arrested him. These actions were found to be under color of law but only after the Court cautioned that not every prisoner murdered in the custody of state officials is deprived of a constitutional right. This circuit has addressed these issues in United States vs. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991), which found that the crime charged was committed under color of law because the police officer identified himself to the victim as a police officer and told him he could kill him and get away with it because he was a cop. The victim was then escorted out of town by the defendant in a police vehicle while another police unit was radioed and appeared and also followed the victim until he left town. This Court did cite the Screws case and reiterated that “Screws held simply that individuals pursuing private aims and not acting by virtue of state authority are not acting under color of law purely because they are state officers”. Tarpley, at 808. The government argued in its opposition to defendant’s motion for judgment of acquittal that appellant’s acts arose from an incident involving his police work and that he used police equipment to facilitate the offense, such as a patrol car and a police radio. The vehicle was used to transport the triggerman, Paul Hardy, to the area where the victim lived so that she could be pointed out to him. The radio was used after the fact to confirm that the murder actually occurred and the victim died. As to the nature of the dispute which gave rise to the murder the facts are as follows. The victim made what was by all accounts an unfounded complaint against the appellant to the Internal Affairs Division of the New Orleans Police Department. All of the evidence indicated that appellant was unafraid of any negative consequences, both because he did nothing wrong and also because he was adept at defending complaints against him. This is evidenced in the testimony of Sammie Williams, appellant’s former partner on the New Orleans Police Department:
(Vol. 37, pp. 396,397). Appellant was, however, outraged that the victim lied about him in an attempt to cause problems for him. While the incident had its genesis in police activity appellant’s anger was directed personally toward the victim because she went out of her way to lie about an incident which did not directly involve her and which involved no misconduct on the part of appellant. After appellant learned of the complaint he did not arrest her, beat her or any such thing involving use of his authority as a police officer. He did not prevail on any of his fellow officers to engage in any such activity on his behalf. Instead, he enlisted the help of Paul Hardy, who was like a brother, or family, to him. Again, this is evidenced in the testimony of former Officer Williams.
(Transcript, Vol. 37, p. 408). It is undisputed that the victim was never aware that appellant intended to cause her any harm. He did not threaten to use his official authority in any way. His actions were motivated by his personal dislike for her because of her lies against him. The actions were totally surreptitious and outside of the law. He did not hold himself out as having any special advantage or privilege because he was a police officer. The evidence showed that the use of the police car was insignificant because the officers tried to be inconspicuous and conceal the presence of Mr. Hardy in the car.
(Transcript, Vol. 37, p. 346). In referring to the trips in the police car in which appellant and Paul Hardy along with former officer Williams went to Ms. Groves’ neighborhood, Williams testified as follows:
(Vol. 37, pp. 423,424). The use of the police radio was after the fact and contributed in no way to the victim’s demise. Mr. Davis at no time used his authority as a police officer to further his goal. A common criminal and friend of appellant was recruited and everything that followed could have been done just as easily by a civilian. Appellant never believed that his position gave him authority to kill the victim and he never acted under pretense of authority. None of the actions taken by appellant can properly be construed as state action taken under color of law.
This error relates to the sufficiency of the evidence to support appellant’s conviction under count 3 for violating the provisions of 18 U.S.C. § 1512(a)(1)(C). The issue of whether a defendant’s conduct can be prosecuted under a particular statute is a question of law, one which is subject to de novo review by the Court. United States vs. Kirkland, 12 F.3d 199 (11th Cir. 1994). "When reviewing a claim of the sufficiency of the evidence to support a conviction, the reviewing court must examine the evidence in the light must favorable to the prosecution and determine if any reasonable trier of fact could have found the appellant guilty beyond a reasonable doubt." Jackson vs. Virginia, 443 U.S. 307, 99 S.Ct. 278, (1979). Title 18 U.S.C. § 1512(a)(1)(C) provides in pertinent part:
The term "Law Enforcement Officer" is defined in relevant part in 18 U.S.C. § 1515 (a)(4) as:
In order to prosecute and obtain a conviction under this section, the government must prove:
United States vs. Stansfield, 101 F.3d 909 at 918 (3rd Cir. 1996). Thus, "the government must prove at least one of the law enforcement officer communications which the defendant sought to prevent would have been with a federal officer." United States vs. Bell, 113 F.3d 1345 at 1349 (3rd Cir. 1997). In Bell, the defendant was accused of murdering an informant to a drug task force composed of local, state and federal investigators. In upholding the conviction under 18 U.S.C. § 1512(a)(1)(c); the court found:
Bell can be immediately distinguished. In the case at bar, the victim was complaining only to the NOPD, and the prosecution did not offer one scintilla of evidence "that at least one of the law enforcement officers communications which the defendant sought to prevent would have been with a federal officer." Id. at 1349. See also United States vs. Romero, 54 F.3d 56 (2nd Cir. 1995). (Court noted that participants in a criminal enterprise had become suspicious that [the witness] was cooperating with federal authorities); United States vs. Edwards, 36 F.3d 639 (7th Cir, 1994) (The witness was killed because was believed to be informing to the DEA). As the court noted in Stansfield, supra at 918, "without also proving the defendant’s knowledge of or belief in the possibility that the witness would communicate with federal authorities, we would vitiate an important facet of the intent requirement of the statute." It is important to note in this regard that no evidence was introduced by the government indicating that at any time in Len Davis’s career had any IAD Complaint against him been turned over to federal authorities or that any person that had ever made a complaint to IAD regarding Len Davis had also made the same complaint to federal authorities. Thus, the government offered no evidence demonstrating or even tending to demonstrate that Len Davis was fearful of the possibility that Kim Marie Groves was communicating with or considering communicating with federal authorities. In the instant case the victim had only made a complaint to the Internal Affairs Division of the New Orleans Police Department. There was no evidence whatsoever that the victim had contacted or attempted to contact federal authorities relative to the incident, and there was no evidence whatsoever that the Internal Affairs Division had either notified federal authorities of the incident or suggested to the victim that she contact federal authorities. Moreover, there was no evidence that federal officers were investigating the incident. With respect to the intent issue, the only evidence offered by the government to prove intent was from appellant’s partner Sammie Williams, who specifically testified that Davis wanted to kill the victim in order to send a message to IAD. This is to say that the only evidence offered by the government relative to intent demonstrated that appellant’s intent was not to prevent the witness from talking to law enforcement authorities but, rather, to send a message to the Internal Affairs Division. It should also be noted in this regard that Sammie Williams repeatedly testified that the appellant had done nothing wrong and that any complaint against the appellant would have turned out to be unfounded. If the government’s evidence is to be believed, the appellant’s motivation behind the killing was not to prevent the witness from communicating with anyone, but, rather, his anger at IAD.[18]The defense submits that under these circumstances it is clear that the evidence was insufficient to support appellant’s conviction on court three and, further, that prosecution failed to prove an element necessary for federal jurisdiction. Accordingly, the defense prays that appellant’s conviction on count three be reversed and the charges against him dismissed. This error relates to the trial court’s jury instructions relative to count three of the indictment. The standard of review for jury instructions where no objection was lodged at trial is plain error, and this Honorable Court can reverse only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States vs. Calverley,37 F.3d 160, 162 (5th Cir.1994). Count three of the indictment charged the appellant with a violation of 18 U.S.C. § 1512(a)(1)(C) which makes it a crime to kill or attempt to kill another person, with the intent to "prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to commission or possible commission of a federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings." In its jury instructions, the trial court charged the jury that in order to find the appellant guilty of a violation of section 1512(a)(1)(C), they must find, among other things, "that the defendant intended to prevent communications of information by Kim Marie Groves to a law enforcement officer relating to the commission of a federal offense." The defense submits that the trial court’s instruction was incorrect as it failed to specify that the law enforcement officer had to be a law enforcement officer of the United States. Under the provisions of Title 18 U.S.C. § Section 1515(a)(4) "the term 'law enforcement officer’ means an officer that is an employee of the federal government, or a person authorized to act for or on behalf of the federal government as an advisor or consultant (A) authorized under law to engage in or supervise the prevention, detection, investigation or prosecution of an offense." See United States vs. Shively, 927 F.2d 804 (5th Cir. 1991); United States vs. Gonzlez, 922 F.2d 1044 (2nd Cir. 1990); United States vs. Edwards, 36 F.3d 639 (7th Cir. 1994); United States vs. Scaife, 749 F.2d 338 (6th Cir. 1994). The government must prove, therefore, that "at least one of the law enforcement officers communications which the defendant sought to prevent would have been with a federal officer." United States vs. Bell, 113 F.3d 1345 at 1349 (3rd Cir. 1997). The defense submits that the jury instruction was clearly wrong as it failed to specify that the "law enforcement officer" had to be an officer of the United States Government. Because a finding that the law enforcement officer was a federal officer was a necessary element of the offense and, further, because the trial Court was without subject matter jurisdiction if the law enforcement officer was not a federal officer, the trial court’s incorrect jury instruction was plain and prejudicial error, thereby requiring a reversal of the conviction under count three.
This error relates to trial court’s denial of defense counsel’s Batson objections. The trial court’s decision on the ultimate issue on discriminatory intent is a finding of fact which is accorded great deference on appeal. United States vs. Fike, 82 F.3d 1315, 1319 (5th Cir. 1996). After the jury had been selected, defense counsel objected to the government’s use of its peremptory challenges to purposely exclude African American jurors. In making the objection, defense counsel noted that only one African American was on the jury (excluding alternates).[19] The government used its peremptory challenges to excuse eleven of twelve African American jurors and nine of ten African American females. Although the government attempted to justify its challenges, the defense submits that the prosecution clearly violated the holding in Batson, supra by using its peremptory challenges to exclude prospective jurors solely on the basis of race. In Batson, supra, the United States Supreme Court reaffirmed a principal decided over a hundred years earlier, that "[t]he State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposely excluded." Batson, supra, 476 U.S. at 85, 106 S.Ct. at 1716. (citing Strauder vs. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Thus, the Supreme Court held that the use of peremptory challenges to strike venire persons "solely on account" of their race violates the equal protection clause. Batson, supra, 476 U.S. at 89, 106 S.Ct. at 1718. |