No.

03-30077

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
__________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant - Cross-Appellee

v.

LEN DAVIS,

Defendant - Appellee - Cross-Appellant

and

PAUL HARDY, also known as P, also known as Cool,

Defendant - Appellee
__________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA
__________________

BRIEF FOR THE UNITED STATES AS APPELLANT - CROSS-APPELLEE

___________________

JAMES B. LETTEN R. ALEXANDER ACOSTA

United States Attorney Assistant Attorney General

STEPHEN A. HIGGINSON JESSICA DUNSAY SILVER

MICHAEL E. MCMAHON JENNIFER LEVIN
Assistant United States Attorneys Attorneys
Eastern District of Louisiana U.S. Department of Justice
Civil Rights Division
Appellate Section - PHB 5018
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530
(202) 305-0025
 STATEMENT REGARDING ORAL ARGUMENT

The United States requests oral argument, and believes that it would be

helpful to the Court.

 TABLE OF CONTENTS
PAGE

STATEMENT REGARDING ORAL ARGUMENT

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Facts Underlying Indictment And Conviction . . . . . . . . . . . . . . . . . . 10

B. District Court Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. INDICTMENT REQUIREMENTS PURSUANT TO RING

AND APPRENDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. SUFFICIENCY OF AN INDICTMENT . . . . . . . . . . . . . . . . . . . . . 25

III. BECAUSE DAVIS AND HARDY CHALLENGED THE

INDICTMENT AFTER TRIAL AND APPEAL, THE
INDICTMENT IS REVIEWED WITH
MAXIMUM LIBERALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

IV. THE THIRD SUPERSEDING INDICTMENT

SUFFICIENTLY ALLEGES THAT DAVIS AND HARDY
HAD THE REQUISITE INTENT UNDER THE FDPA TO
MURDER KIM MARIE GROVES . . . . . . . . . . . . . . . . . . . . . . . . . 33

V. THE INDICTMENT SUFFICIENTLY ALLEGES

THAT DAVIS AND HARDY ENGAGED IN
SUBSTANTIAL PLANNING AND PREMEDITATION
LEADING TO THE MURDER OF KIM MARIE GROVES . . . . . 36

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TABLE OF CONTENTS (continued): PAGE

VI. DAVIS’S CROSS-APPEAL SHOULD BE DISMISSED

FOR LACK OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

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 TABLE OF AUTHORITIES

CASES: PAGE

Abney v. United States, 431 U.S. 651 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Apprendi v. New Jersey, 530 U.S. 466 (2002) . . . . . . . . . . . . . . . . . . . . . . . passim

Cabana v. Bullock, 474 U.S. 376 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) . . . . . . . . . . . . . . . . 42

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) . . . . . . . . . . . . . . . . . . . . . . 42

Enmund v. Florida, 458 U.S. 782 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Faretta v. California, 422 U.S. 806 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Finn v. United States, 256 F.2d 304 (4th Cir. 1958) . . . . . . . . . . . . . . . . . . . . 19, 32

Flanagan v. United States, 465 U.S. 259 (1984) . . . . . . . . . . . . . . . . . . . . . . passim

Hagner v. United States, 285 U.S. 427 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Hamling v. United States, 418 U.S. 87 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 17, 25

Harris v. United States, 536 U.S. 545 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hopkins v. Reeves, 524 U.S. 88 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Jeffers v. United States, 432 U.S. 137 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Jones v. United States, 526 U.S. 227 (1999) . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 22

Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) . . . . . . . . . . 2, 41-43

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ring v. Arizona, 536 U.S. 584 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . 21

-iii-
CASES (continued): PAGE

United States v. Avery, 295 F.3d 1158 (10th Cir.),

cert. denied, 537 U.S. 1024 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Battle, 264 F. Supp. 2d 1088 (N.D. Ga. 2003),

appeal pending, No. 03-14908. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 29

United States v. Becerra, 155 F.3d 740 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 39

United States v. Bernard, 299 F.3d 467 (2002),

cert. denied, 123 S. Ct. 2572 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Bethany, 489 F.2d 91 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . 26

United States v. Bieganowski, 313 F.3d 264 (5th Cir. 2002),

cert. denied, 123 S. Ct. 1956 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Brown, 218 F.3d 415 (5th Cir. 2000),

cert. denied, 531 U.S. 1111 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States v. Causey, 185 F.3d 407 (5th Cir. 1999),

cert. denied, 530 U.S. 1277 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 10-11

United States v. Comeaux, 954 F.2d 255 (5th Cir. 1992) . . . . . . . . . . . . . . . . 43, 44

United States v. Cotton, 535 U.S. 625 (2002) . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Davis, 150 F. Supp. 2d 918 (E.D. La. 2001) . . . . . . . . . . . . . . . . . 8

United States v. Davis, 180 F. Supp. 2d 797 (E.D. La. 2001) . . . . . . . . . . . . . . . . . 9

United States v. Davis, 285 F.3d 378 (5th Cir.),

cert. denied, White v. United States, 537 U.S. 1066 (2002) . . . . . . . . . . . . . 9

United States v. Davis, 904 F. Supp. 554 (E.D. La. 1995) . . . . . . . . . . . . . . . . . . . 5

United States v. Davis, 912 F. Supp. 938 (E.D. La. 1996) . . . . . . . . . . . . . . . . . . . 5

United States v. Fitzgerald, 89 F.3d 218 (5th Cir.),

cert. denied, 519 U.S. 987 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30-31

-iv-
CASES (continued): PAGE

United States v. Flores, 63 F.3d 1342 (5th Cir. 1995),

cert. denied, 519 U.S. 825 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Greenwood, 974 F.2d 1449 (5th Cir. 1992),

cert. denied, 508 U.S. 915 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Haynes, 269 F. Supp. 2d 970 (W.D. Tenn. 2003) . . . . . . . . . . . . 23

United States v. Henry, 288 F.3d 657 (5th Cir.),

cert. denied, 537 U.S. 902 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Hernandez, 891 F.2d 521 (5th Cir. 1989),

cert. denied, 495 U.S. 909 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27

United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982) . . . . . . . . . . . . 42

United States v. Jackson, 30 F.3d 572 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 43

United States v. Jackson, 327 F.3d 273 (4th Cir. 2003),

petition for cert. pending, No. 03-5929 . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Johnson, 239 F. Supp. 2d 924 (N.D. Iowa 2003) . . . . . . . . . . . . 23

United States v. Kennington, 650 F.2d 544 (5th Cir. 1981) . . . . . . . . . . . . . . . . . 26

United States v. Lentz, 225 F. Supp. 2d 672 (E.D. Va. 2002) . . . . . . . . . . . . . . . . 23

United States v. MacDonald, 435 U.S. 850 (1978) . . . . . . . . . . . . . . . . . . . . . 42, 43

United States v. Matthews, 312 F.3d 652 (5th Cir. 2002),

cert. denied, 123 S. Ct. 1604 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 35

United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996),

cert. denied, 520 U.S. 1213 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

United States v. Mechanik, 475 U.S. 66 (1986) . . . . . . . . . . . . . . . . . . . . . . . 35, 39

United States v. Olson, 262 F.3d 795 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . 31-32

United States v. Patterson, 241 F.3d 912 (7th Cir.),

cert. denied, 534 U.S. 853 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

-v-
CASES (continued): PAGE

United States v. Perez, 70 F.3d 345 (5th Cir. 1995),

vacated on other grounds, 519 U.S. 990 (1996) . . . . . . . . . . . . . . . . . . . . . 43

United States v. Purvis, 580 F.2d 853 (5th Cir. 1978),

cert. denied, 440 U.S. 914 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Quinones, 313 F.3d 49 (2d Cir. 2002),

petition for cert. pending, No. 03-6148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Ramirez, 233 F.3d 318 (5th Cir. 2000) . . . . . . . . . . . . . . . . . 27, 28

United States v. Regan, 221 F. Supp. 2d 672 (E.D. Va. 2002) . . . . . . . . . . . . 22, 23

United States v. Richards, 204 F.3d 177 (5th Cir.),

cert. denied, 531 U.S. 826 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Sabbeth, 262 F.3d 207 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 32

United States v. Safarini, 257 F. Supp. 2d 191 (D.D.C. 2003) . . . . . . . . . . . . . . . 22

United States v. Sampson, 245 F. Supp. 2d 327 (D. Mass. 2003) . . . . . . . . . . . . . 23

United States v. Shelton, 937 F.2d 140 (5th Cir.),

cert. denied, 502 U.S. 990 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Stewart, 306 F.3d 295 (6th Cir. 2002),

cert. denied, 587 U.S. 1138 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 30

United States v. Threadgill, 172 F.3d 357 (5th Cir.),

cert. denied, 528 U.S. 871 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Tipton, 90 F.3d 861 (4th Cir. 1996),

cert. denied, 520 U.S. 1253 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 18, 37, 38

United States v. Vogt, 910 F.2d 1184 (4th Cir. 1990),

cert. denied, 498 U.S. 1083 (1991) . . . . . . . . . . . . . . . . . . . . . . 19, 32, 36, 39

United States v. Webb, 747 F.2d 278 (5th Cir. 1984),

cert. denied, 469 U.S. 1226 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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CASES (continued): PAGE

United States v. Webster, 162 F.3d 325 (5th Cir. 1998),

cert. denied, 528 U.S. 829 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Williams, 343 F.3d 423 (5th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 24

United States v. Wilson, 420 U.S. 332 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Wilson, 884 F.2d 174 (5th Cir. 1989) . . . . . . . . . . . . . . . . . passim

United States v. Woolard, 981 F.2d 756 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 2

Walton v. Arizona, 497 U.S. 639 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 21

STATUTES:

18 U.S.C. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4, 26

18 U.S.C. 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

18 U.S.C. 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 24

18 U.S.C. 521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

18 U.S.C. 841 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

18 U.S.C. 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

18 U.S.C. 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

18 U.S.C. 922(g)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. 924 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

18 U.S.C. 924(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. 924(j)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

18 U.S.C. 1512(a)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

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STATUTES (continued): PAGE

18 U.S.C. 2241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

18 U.S.C. 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. 3731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

21 U.S.C. 848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

21 U.S.C. 848(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

21 U.S.C. 848(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

21 U.S.C. 848(n)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

21 U.S.C. 848(n)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 41, 43

Federal Death Penalty Act, 18 U.S.C. 3591 et seq. . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. 3591-3593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 U.S.C. 3591(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 U.S.C. 3591(a)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
18 U.S.C. 3591(a)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 34
18 U.S.C. 3591(a)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
18 U.S.C. 3591(a)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
18 U.S.C. 3592(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
18 U.S.C. 3592(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
18 U.S.C. 3592(c)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
18 U.S.C. 3592(c)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. 3592(c)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. 3592(c)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7, 37
18 U.S.C. 3592(c)(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

RULES:

Fed. R. Crim. P. 6(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Fed. R. Crim. P. 7(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 25, 26, 33

-viii-
 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________

NO. 03-30077
__________________

UNITED STATES OF AMERICA,

Plaintiff - Appellant - Cross-Appellee

v.

LEN DAVIS,

Defendant - Appellee - Cross-Appellant

and

PAUL HARDY, also known as P, also known as Cool,

Defendant - Appellee
__________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA
__________________

BRIEF FOR THE UNITED STATES AS APPELLANT - CROSS-APPELLEE

___________________

STATEMENT OF JURISDICTION

This is an appeal from a district court order entered on December 12, 2002,

which held that the Third Superseding Indictment did not allege the requisite

elements to support a death sentence for defendants Len Davis and Paul Hardy,

thereby eliminating that sentencing option and dismissing a portion of the

Indictment. The district court had jurisdiction under 18 U.S.C. 3231.

 -2-
The United States filed a Notice of Appeal on January 10, 2003 (10 R. 3092-

3093/D. Doc. 1086/RE 3).1 Davis filed a Notice of Cross-Appeal on January 21,

2003 (10 R. 3090-3091/D. Doc. 1087/RE 4). This Court has jurisdiction with

respect to the United States’ appeal under 18 U.S.C. 3731. See United States v.

Wilson, 420 U.S. 332, 337 (1975); United States v. Woolard, 981 F.2d 756 (5th Cir.

1993). This Court, however, does not have jurisdiction with respect to Davis’s

cross-appeal. See 28 U.S.C. 1291; Sec. VI, pp. 41-44, infra; see also Midland

Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989).

STATEMENT OF THE ISSUES

1. Whether the district court erred in its conclusion that the Third Superseding

Indictment did not sufficiently allege Davis and Hardy’s intent and substantial

planning and premeditation to establish their eligibility for death under the Federal

Death Penalty Act, 18 U.S.C. 3591 et seq., given the Indictment’s detailed

description of, inter alia, their agreement to kill Ms. Kim Marie Groves, numerous

1
“__ R. __” refers to the volume and page number, respectively, of the
Record on Appeal. “2d Supp. R.” refers to the Second Supplemental Record, and
“3d Supp. R.” refers to the Third Supplemental Record on Appeal. “D. Doc. __”
refers to the document number recorded on Davis’s docket sheet. “H. Doc. __”
refers to the document number recorded on Hardy’s docket sheet. “RE __” or
“RE _:_” refers to the tab, or tab and the court’s bate-stamped page number for
documents contained in the Record Excerpts For The United States. If materials
are present in both Davis and Hardy’s Record on Appeal, only Davis’s docket entry
will be recorded. When available, cross-references to the same material is
separated by a front slash (“/”). When materials are included in the Record
Excerpts, however, the second and subsequent citations only will be to the RE cite.
 -3-
conversations and various acts to plan and coordinate the murder, and the

intentional killing of Ms. Groves.2

2. Whether this Court has jurisdiction to hear Davis’s cross-appeal when the

district court has not yet sentenced him.

STATEMENT OF THE CASE

A one-count Indictment was issued on December 13, 1994, against

defendants Len Davis, Paul Hardy, and Damon Causey (1 R. 214-216/D. Doc.

1/RE 5). A three-count Superseding Indictment was issued on January 17, 1995 (1

R. 90-93/D. Doc. 50/RE 6). A Second Superseding Indictment was issued on

March 24, 1995 (1 R. 2-7/D. Doc. 99/RE 7). Ultimately, a Third Superseding

Indictment was filed on August 18, 1995 (2 R. 289-294/D. Doc. 187/RE 8). Count

One of the Indictment charged defendants with conspiracy to violate the civil rights

of Ms. Kim Marie Groves and another unnamed individual by use of excessive

force, resulting in death, in violation of 18 U.S.C. 241 (RE 8:289-291). Eight

Overt Acts in furtherance of the conspiracy were alleged (RE 8:290-291). Count

Two charged defendants with violating Ms. Groves’ civil rights by use of excessive

force, i.e., by shooting Ms. Groves with a firearm, resulting in her death, in

violation of 18 U.S.C. 242 and 2 (RE 8:291-292). Count Three charged defendants

with willfully killing Ms. Groves to prevent her communications to a law

enforcement officer regarding a possible federal crime, in violation of 18 U.S.C.

2
Hereinafter, “Indictment” refers to the Third Superseding Indictment,
unless otherwise stated.
 -4-
1512(a)(1)(C) and 2 (RE 8:292-293). At the time of the charged offenses, Davis

was an officer with the New Orleans Police Department, Hardy was a drug dealer

in New Orleans, and Causey was an associate of Davis and Hardy.

The relevant Overt Acts set forth in Count One read as follows:

1. After learning that Kim Marie Groves had filed a civil rights
complaint against him, defendant LEN DAVIS contacted defendant
PAUL HARDY, a/k/a “P”, a/k/a “Cool”, on several occasions by
cellular telephone on or about October 13, 1994, to arrange the murder
of Kim Marie Groves.

2. On or about October 13, 1994, defendant LEN DAVIS contacted

defendant DAMON CAUSEY by cellular telephone to arrange a
meeting whereby defendant LEN DAVIS would identify Kim Marie
Groves to defendants PAUL HARDY, a/k/a “P”, a/k/a “Cool”, and
DAMON CAUSEY, thereby facilitating the murder of Kim Marie
Groves.

3. On or about October 13, 1994, defendant LEN DAVIS, while on-

duty and while using his official police car, conducted surveillance of
Kim Marie Groves for the purpose of reporting Groves’ physical
description and location to defendant PAUL HARDY, a/k/a “P”, a/k/a
“Cool”.

4. On or about October 13, 1994, at 10:01 p.m., defendant LEN

DAVIS, during a cellular telephone conversation, ordered defendant
PAUL HARDY, a/k/a “P”, a/k/a “Cool”, to “get that whore,” thereby
ordering the murder of Kim Marie Groves. Defendant PAUL HARDY, a/k/a “P”,
a/k/a “Cool”, agreed to kill Kim Marie Groves and stated in response, “Alright I’m
on my way.”

5. On or about October 13, 1994, at 10:55 p.m., defendant PAUL

HARDY, a/k/a “P”, a/k/a “Cool”, shot Kim Marie Groves in the head
with a 9mm firearm, which resulted in her death.

(RE 8:290-291).
 -5-
On July 31, 1995, the United States separately notified Davis and Hardy of

its intent to seek the death penalty under the Federal Death Penalty Act (FDPA)

upon conviction of any count, and identified the applicable mental culpability

provisions and statutory aggravating factors to establish their respective death

eligibility (2 R. 309-310/D. Doc. 179 (Notice to Hardy); 2 R. 311-312/D. Doc. 178

(Notice to Davis)).3

By Order and Reasons dated October 23, 1995, the district court rejected

defendants’ challenges to, inter alia, the constitutionality of the FDPA generally

and the statutory aggravating factor of substantial planning and premeditation, in

particular. United States v. Davis, 904 F. Supp. 554 (E.D. La. 1995); see United

States v. Davis, 912 F. Supp. 938 (E.D. La. 1996) (rejecting defendants’ challenges

to nonstatutory aggravating factors and proffered evidence). While Davis and

Hardy raised multiple challenges to the Indictment, they did not assert before trial

3
Specifically, the United States notified Davis that it would seek the death
penalty based on proof of intent pursuant to 18 U.S.C. 3591(a)(2)(A)-(C), and the
statutory aggravating factors of substantial planning and premeditation, 18 U.S.C.
3592(c)(9), and procuring the offense by payment and promise of payment, 18
U.S.C. 3592(c)(7) (2 R. 311-312/D. Doc. 178). Similarly, the United States
notified Hardy that it would seek the death penalty based on evidence of intent
pursuant to 18 U.S.C. 3591(a)(2)(A)-(D), and the statutory aggravating factors of
substantial planning and premeditation, 18 U.S.C. 3592(c)(9), and the commission
of the offense for the receipt, or expectation of receipt, of pecuniary gain, 18
U.S.C. 3592(c)(8) (2 R. 309-310/D. Doc. 179). On October 2, 1995, the United
States provided separate notice to Davis and Hardy of the nonstatutory aggravating
factors upon which the government would rely in support of the death penalty (3 R.
850-354/D. Doc. 276 (Davis); 3 R. 846-849/H. Doc. 277 (Hardy)).
 -6-
that the Indictment gave them insufficient notice of the charges that they faced (see

10 R. 3113/D. Doc. 1080/RE 13:3113).

In April 1996, following a jury trial held in the United States District Court

for the Eastern District of Louisiana, Davis and Hardy were found guilty of Counts

One through Three, Causey was found guilty of Counts One and Two, and the jury

was deadlocked with respect to Causey on Count Three (6 R. 2031-2037/D. Doc.

498/RE 9). During the penalty phase, the jury unanimously found, for both

defendants, the statutory aggravating factor of substantial planning and

premeditation, 18 U.S.C. 3592(c)(9), and that Davis and Hardy, respectively, had

the requisite intent pursuant to Section 3591(a)(2)(C) and Section 3591(a)(2)(A) (6

R. 1940-1944/D. Doc. 523/RE 10). At the conclusion of the penalty phase, the jury

recommended that both Davis and Hardy be sentenced to death (6 R. 1922-1927/D.

Doc. 524/RE 11 (Davis); 6 R. 1910-1916/D Doc. 528/RE 12 (Hardy)). The jury

did not reach a unanimous verdict on the second statutory aggravating factor

regarding action for pecuniary gain for Davis or Hardy.

The district court (Berrigan, J.), sentenced Davis and Hardy to death on

November 7, 1996 (7 R. 2380/D. Doc. 631). Causey was sentenced to life

imprisonment. Each defendant appealed his respective conviction and sentence.

This Court affirmed Causey’s conviction and sentence, affirmed Davis and

Hardy’s convictions on Counts One and Two, and reversed Davis and Hardy’s

convictions on Count Three, holding that there was insufficient evidence to support

the conviction on that count. United States v. Causey, 185 F.3d 407, 423 (5th Cir.
 -7-
1999), cert. denied, 530 U.S. 1277 (2000). Given that the jury’s recommendations

of death for Davis and Hardy were not tied specifically to conviction of a particular

count, this Court vacated Davis and Hardy’s death sentences and remanded for

sentencing. Ibid.

On September 29, 2000, the United States notified Davis of its intent to seek

the death penalty based on evidence of intent pursuant to 18 U.S.C. 3591(a)(2)(A)-

(C), and the statutory aggravating factors of substantial planning and premeditation,

18 U.S.C. 3592(c)(9), and Davis’s prior conviction of a felony that allows

imposition of a sentence exceeding five or more years, 18 U.S.C. 3592(c)(12) (7 R.

2247-2248/D. Doc. 744). The United States notified Hardy of its intent to seek the

death penalty based on evidence of intent pursuant to 18 U.S.C. 3591(a)(2)(A)-(D),

and the statutory aggravating factor of substantial planning and premeditation, 18

U.S.C. 3592(c)(9) (1 3d Supp. R. 1756-1756a/H. Doc. 743). The United States

also notified Davis and Hardy of the nonstatutory aggravating factors it would rely

upon to seek the death penalty (7 R. 2249-2252/D. Doc. 741; 1 3d Supp. R. 1757-

1760/H. Doc. 742).4

4
On January 30, 2001, the United States filed an Amended Notice to Davis
of its intent to seek the death penalty, which was identical in all respects to the
September 2000, notice except that it did not include the second statutory
aggravating factor that was based on Davis’s recent felony conviction (8 R. 2668-
2669/D. Doc. 836). Davis’s felony drug conviction was now identified as a
nonstatutory aggravating factor (8 R. 2670-2673/D. Doc. 835; See 2 3d Supp. R.
2110-2111/H. Doc. 827). On January 30, 2001, the United States also served an
amended notice to Hardy of the nonstatutory aggravating factors the government
would rely upon to pursue a death sentence (2 3d Supp. R. 2099-2102/H. Doc.
834).
 -8-
The passage of over two years between the denial of certiorari in the original

appeal and the decision challenged here on appeal is primarily due to two series of

actions. First, between October 2000, and June 2002, Davis and Hardy filed

numerous unsuccessful motions that challenged, inter alia, the validity of their

convictions, the constitutionality of the death penalty, and the constitutionality of

the FDPA’s statutory aggravating factor of substantial planning and premeditation

(see, e.g., 7 R. 2150/D. Doc. 771; 1 3d Supp. R. 1730-1738/H. Doc. 755). Many of

these motions reiterated arguments that had been rejected previously by the district

court, or asserted that recent decisions by this Court warranted a different result

(see, e.g., ibid.; 10 R. 3244-3250/D. Doc. 1049; see also 10 R. 3416-3422/D. Doc.

1019).

Second, after this Court’s remand for sentencing, Davis stated his intention

to proceed pro se, and stated repeatedly that he did not intend to present mitigating

evidence, but only will argue residual doubt as a basis to challenge the potential

death sentence. See United States v. Davis, 150 F. Supp. 2d 918, 920 (E.D. La.

2001). This decision led to a series of orders and challenges regarding the district

court’s appointment of independent or standby counsel. First, the district court

ruled that Davis did not have a right pursuant to Faretta v. California, 422 U.S. 806

(1975), to proceed pro se at capital sentencing, and that even if he did, his stated

intentions to not present mitigating evidence foreclosed such a right. Davis, 150 F.

Supp. 2d at 923. Davis successfully sought a writ of mandamus from this Court

reversing that order. United States v. Davis, No. 01-30656 (5th Cir. July 17, 2001).
 -9-
Next, the district court appointed a standby counsel and granted her authority to

present mitigating evidence against Davis’s wishes. United States v. Davis, 180 F.

Supp. 2d 797 (E.D. La. 2001). This ruling also was reversed by this Court on

mandamus. United States v. Davis, 285 F.3d 378 (5th Cir. 2002). The standby

counsel petitioned for certiorari, which was denied. See White v. United States,

537 U.S. 1066 (2002).

On June 24, 2002, the Supreme Court issued its decision in Ring v. Arizona,

536 U.S. 584, 609 (2002), reversing its decision in Walton v. Arizona, 497 U.S. 639

(1990), and holding that the statutory aggravating factors that are required to

establish a defendant’s eligibility for the death penalty must be found by the jury

upon proof beyond a reasonable doubt.

On July 12, 2002, relying primarily on Ring, Davis filed a motion seeking

reconsideration of the court’s refusal to dismiss the Indictment due to the

Indictment’s alleged failure to allege the requisite elements of the FDPA (10 R.

3201-3208/D. Doc. 1059; see 10 R. 3124-3140/D. Doc. 1078 (reply

memorandum)).5 Hardy similarly argued that the Indictment did not allege the

required mental culpability or a statutory aggravating factor to render him death

eligible, and that he could only be subject to a maximum term of ten years (3 3d

Supp. R. 2340-2344/H. Doc. 1066; 3 3d Supp. R. 2298-2310/H. Doc. 1076).

5
The motion for reconsideration followed the district court’s recent denial
of Davis’s motion to dismiss Counts One and Two for the alleged failure to allege
the requisite mens rea for “death resulting” (10 R. 3242-3243/D. Doc. 1050; 10 R.
3244-3250/D. Doc. 1049).
 - 10 -
Notably, neither Davis nor Hardy alleged that he was prejudiced by the alleged lack

of notice of the charges or the United States’ intent to seek the death penalty.

In opposition, the United States asserted that the text of the Indictment, while

not quoting the FDPA verbatim, alleged mental culpability and the statutory

aggravating factor of substantial planning and premeditation to give sufficient

notice to the defendants that they were death eligible under the FDPA, and that any

error in the Indictment was harmless (10 R. 3148-3164/D. Doc. 1072).

The district court held a hearing on these motions on November 6, 2002, and

the Court’s order was issued December 12, 2002 (RE 13). In sum, the district court

held that, under Ring, a federal indictment now must allege the mental culpability

and statutory aggravating factor to give notice and render a defendant death eligible

(RE 13:3102-3105). The district court further concluded that the Indictment did

not sufficiently allege these factors and, thus, neither Davis nor Hardy was eligible

for a death sentence (RE 13:3106-3112).

The United States filed a Notice Of Appeal on January 10, 2003 (RE 3).

Davis filed a Notice Of Cross-Appeal on January 21, 2003 (RE 4).

STATEMENT OF FACTS

A. Facts Underlying Indictment And Conviction

This case concerns the “execution-style murder” of Ms. Kim Marie Groves

on October 13, 1994, in New Orleans, Louisiana, through the coordinated efforts of

Len Davis, a New Orleans police officer at that time, Paul Hardy, and Damon

Causey. United States v. Causey, 185 F.3d 407, 411 (5th Cir. 1999), cert. denied,
 - 11 -
530 U.S. 1277 (2000). Davis, while an officer, “exchanged protection for favors”

to Hardy, who was a drug dealer in New Orleans. Ibid. One of Hardy’s favors, at

Davis’s request, was to murder Ms. Groves. Ibid.

Unbeknownst to Davis, at the time he was planning and coordinating the

murder of Ms. Groves with Hardy and Causey, he was the target of an undercover

investigation, and his cellular telephone conversations were recorded. Ibid. The

evidence at trial included these conversations (which are summarized in the Overt

Acts of Count One of the Indictment), and the testimony of Sammie Williams,

Davis’s police partner who was present during many of the conversations. Ibid.

On or about October 10, 1994, Davis and Williams were partners on duty

when they initiated a stop of twin brothers, Nathan and Nathaniel Norwood (18 2d

Supp. R. 316). The officers mistakenly believed that one of the twins was another

individual who was responsible for the recent shooting of a New Orleans police

officer (ibid.). While conducting a name check of the Norwoods, Ms. Groves came

on the scene, challenged the officers’ actions, and argued with Davis (18 2d Supp.

R. 316-317). On October 11, 1994, Davis and Williams initiated a second stop of

Nathan Norwood, again in a case of mistaken identity (18 2d Supp. R. 317-319,

322). When Williams stopped Norwood, Williams hit him on the back of the head

with his pistol, and the force “snapped” Norwood’s head into a porch railing (18 2d

Supp. R. 318-319). Ms. Groves again was at the scene, “real angry,” and she spoke

with Sergeant Trepagnier about the officers’ treatment of Norwood (18 2d Supp. R.
 - 12 -
322-323). She later filed a complaint against Williams and Davis with the Internal

Affairs office of the New Orleans Police Department (18 2d Supp. R. 324).

Davis learned of this complaint, and at approximately 1 a.m., on October 13,

1994, he contacted Williams and told him that Ms. Groves had filed a complaint

(ibid.). Davis’s anger at Ms. Groves was apparent when Williams began his shift at

2:30 p.m. on October 13, 1994, again assigned as Davis’s partner (18 2d Supp. R.

325-326). At approximately 5 p.m., while Davis and Williams were driving, they

saw Ms. Groves, and she and Davis exchanged gestures, pointing at each other (18

2d Supp. R. 327).

Davis repeatedly tried to contact Hardy by telephone that day, and when they

spoke, their comments reflected that they had spoken earlier about the plan to kill

Ms. Groves (18 2d Supp. R. 328-330). Davis arranged to have Hardy and Causey

meet him at the police station so that he could take them to see Ms. Groves (18 2d

Supp. R. 333-335). While on duty, Davis made several trips to Ms. Groves’

neighborhood in an effort to find her so that he could show her to Hardy. For

example, at approximately 7:30 p.m., Davis told Hardy that he was going to look

for Ms. Groves (18 2d Supp. R. 339). But he was unsuccessful (ibid.). After that,

Hardy, while armed, met with Davis and Williams and traveled in the police car

back to Ms. Groves’ neighborhood so that they could find her (18 2d Supp. R. 340-

343). At one point, Hardy got out of the car and walked down some streets while

Davis and Williams continued driving, but they could not find Ms. Groves (18 2d

Supp. R. 342).
 - 13 -
At approximately 9:50 p.m., Davis again called Hardy, questioning his

commitment to the plan, and stated that he was going to return to Ms. Groves’

neighborhood to look for her (18 2d Supp. R. 344-345). Still using the police

cruiser, this time Davis was successful (18 2d Supp. R. 345). Davis immediately

paged Hardy to notify him of Ms. Groves’ location and provide a description of her

clothing (18 2d Supp. R. 346). At 10:43 p.m., Davis again called Hardy asking

about his activity, and Hardy responded that he was “on his way” (18 2d Supp. R.

347-348; Gov. Trial Exh. C-12). At approximately 10:55 p.m., Hardy shot Ms.

Groves, killing her (18 2d Supp. R. 348-349, 352).

B. District Court Opinion

In its December 2002, ruling, the district court held that Ring v. Arizona, 536

U.S. 584 (2002), in conjunction with United States v. Cotton, 535 U.S. 625 (2002),

Apprendi v. New Jersey, 530 U.S. 466 (2002), and Jones v. United States, 526 U.S.

227 (1999), requires that, in a capital case, the indictment allege the elements

necessary to support the death penalty under the Federal Death Penalty Act

(FDPA) (RE 13:3099-3121; see RE 13:3103-3105) (the “addition of Ring to the

rules set forth in Jones and Apprendi compels the conclusion that in a federal

capital case, the grand jury must both find the FDPA intent and factors upon which

the death penalty is premised and must set forth those findings in the allegations of

[the] indictment in order to pass Fifth Amendment muster”). The district court

rejected the United States’ claim that the Overt Acts stated in Count One, while not

quoting the FDPA verbatim, included equivalent findings by the grand jury of
 - 14 -
defendants’ mental culpability and the statutory aggravating factor of substantial

planning and premeditation (RE 13:3106-3107).

The Indictment summarized the defendants’ contacts with each other

regarding the agreement and planning to kill Ms. Groves, Davis’s efforts to locate

Ms. Groves and notify Hardy of her whereabouts immediately prior to her death,

and the execution of Ms. Groves. The court concluded, however, that these overt

acts “can not be substituted for, nor do they translate to, the distinct finding that

‘substantial’ planning and ‘substantial’ premeditation preceded this death”

(RE 13:3107).6

The district court also found that Counts One and Two of the Indictment

failed to allege intent to kill for purposes of the FDPA, and there was no evidence

that the grand jury considered the mens rea element in its findings (RE 13:3108).

The government had argued, inter alia, that the description of Hardy’s killing of

Ms. Groves in the Overt Acts of Count One and the statement in Count Three that

defendants did “willfully, deliberately * * * unlawfully kill Kim Marie Groves”

satisfied the mens rea requirement (10 R. 3153-3155/D. Doc. 1072; see 10 R.

3148-3164).

6
In addition, reiterating a prior ruling, the district court rejected Davis’s
claim that the Indictment should be dismissed for failure to allege the mens rea in
connection with “death resulting” (RE 13:3106 n.11). The court found that Counts
One and Two sufficiently alleged willfulness to satisfy the noncapital charges
(ibid.).
 - 15 -
The district court held that, because the Fifth Circuit overturned the

convictions on Count Three for lack of supporting evidence, the allegations set

forth in Count Three could not be considered in evaluating whether the grand jury

found that defendants willfully committed murder (RE 13:3109-3111). The district

court also stated that the Fifth Circuit’s dismissal of Count Three “undermine[d]”

any finding by the grand jury on “substantial planning and premeditation” (RE

13:3110). The court reasoned that if there was no evidence to support the “long-

range purpose” of preventing the victim from incriminating Davis, the jury could

not have found “substantial planning” (ibid.). Finally, the court stated that it was

“reluctant” to conclude there was sufficient notice of substantial planning and

premeditation because only two jurisdictions that impose capital sentences, besides

federal courts, consider this element as an aggravating factor to warrant the death

penalty, and it is not a factor considered in Louisiana state court (RE 13:3111-

3112).

The district court concluded that defendants raised a timely Apprendi/Ring

challenge to the Indictment’s alleged failure to include a mens rea element and

statutory aggravating factors by raising it at sentencing (RE 13:3112-3117), quoting

extensively from United States v. Stewart, 306 F.3d 295, 310 (6th Cir. 2002), cert.

denied, 587 U.S. 1138 (2003) (RE 13:3115). The court deemed the challenge

timely since it is only at sentencing that the defendants’ intent and the statutory

aggravating factor “would be used” to expand their potential exposure to a death

sentence (RE 13:3116).

 - 16 -
The district court concluded that the indictment only “validly charged * * *

the ‘mid-level’ violations of Sections 241 and 242" (RE 13:3118). The court

further concluded that, given convictions for these mid-level offenses, and the

attachment of double jeopardy, the defendants could not be subjected to a capital

sentence, but could be subject to “any term of years or for life” (RE 13:3118,

3121).

STANDARD OF REVIEW

Challenges to an indictment generally are reviewed de novo. United States

v. Shelton, 937 F.2d 140, 142 (5th Cir.), cert. denied, 502 U.S. 990 (1991). The

United States concedes that because Davis and Hardy raised this challenge prior to

their second sentencing, their challenge is timely. See United States v. Stewart,

306 F.3d 295, 310 (6th Cir. 2002), cert. denied, 537 U.S. 1138 (2003). However,

when an indictment is challenged for the first time on appeal, this Court reviews an

indictment with “maximum liberality.” United States v. Henry, 288 F.3d 657, 660

(5th Cir.), cert. denied, 537 U.S. 902 (2002). Given (1) the unusual procedural

posture of this case, including an initial challenge to the indictment after conviction

and appeal; (2) the absence of prejudice to the defendants given the unequivocal

notice to them of the United States’ intent to seek the death penalty; and (3) double

jeopardy principles that make it impossible for the United States to supersede the

Indictment in this case, this Court should review the Indictment with “maximum

liberality.” Ibid.
 - 17 -
SUMMARY OF ARGUMENT

Pursuant to the logic of Ring v. Arizona, 536 U.S. 584 (2002), and the

Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

and United States v. Cotton, 535 U.S. 625 (2002), a federal indictment must allege

the mental state and a statutory aggravating factor to establish a defendant’s

eligibility for a death sentence under the Federal Death Penalty Act (FDPA), 18

U.S.C. 3591 et seq. An indictment must give sufficient notice of the charges and

death eligibility, see Hamling v. United States, 418 U.S. 87, 117 (1974), but there is

no “ritual of words.” United States v. Wilson, 884 F.2d 174, 179 (5th Cir. 1989)

(quoting United States v. Purvis, 580 F.2d 853, 857 (5th Cir. 1978), cert. denied,

440 U.S. 914 (1979)). An indictment need not quote or cite the statute underlying

the offense or sentence in order to give a defendant sufficient notice. See United

States v. Jackson, 327 F.3d 273, 303-304 (4th Cir. 2003) (opinion of court)

(indictment issued pre-Ring sufficiently alleged an aggravating factor for death

eligibility despite its failure to cite or quote the FDPA), id. at 287 (Niemeyer, J.,

concurring) (same, relying on Ring), petition for cert. pending, No. 03-5929; Fed.

R. Crim. P. 7(c)(3).

The unusual procedural posture of this case warrants this Court’s review of

the Indictment with “maximum liberality.” United States v. Henry, 288 F.3d 657,

660 (5th Cir.), cert. denied, 537 U.S. 902 (2002). Davis and Hardy filed a timely

challenge to the sufficiency of the Indictment by raising their claim at the time of

resentencing. See Apprendi, 530 U.S. at 490. Although timely, this initial
 - 18 -
challenge is raised when double jeopardy principles make it impossible for the

government to supersede the Indictment in this case to correct any error or

omission. The defendants had ample notice of the United States’ intent to seek the

death penalty and the alleged mental culpability and statutory aggravating factors,

and, therefore, they have not been prejudiced. The United States, however, is

hindered because it cannot take corrective action. Accordingly, this Court should

review the Indictment with “maximum liberality.” See Henry, 288 F.3d at 660.

The charges of Counts One and Two, and the Overt Acts in Count One,

describe in detail Davis and Hardy’s agreement and plan to execute Ms. Groves,

their repeated efforts to locate Ms. Groves, and her execution. Despite the absence

of express citation to or quotation from the FDPA, the description of Davis and

Hardy’s actions gave them more than sufficient notice that the United States

alleged (and the grand jury found), that the murder of Ms. Groves was committed

with the requisite intent and substantial planning and premeditation. Cf. Jackson,

327 F.3d at 287 (Niemeyer, J., concurring); id. at 303-304 (opinion of court). The

same facts that establish that Davis and Hardy acted intentionally in conspiring and

killing Ms. Groves also show that their actions constitute substantial planning and

premeditation and, thus, exceed the minimal effort to commit murder. Cf. ibid.;

United States v. Tipton, 90 F.3d 861, 896 (4th Cir. 1996), cert. denied, 520 U.S.

1253 (1997). Particularly when read with maximum liberality, the Indictment

sufficiently alleges intent and substantial planning and premeditation. See Henry,

288 F.3d at 660. To conclude the Indictment alleges intent and substantial planning
 - 19 -
and premeditation is a “fair construction” of the Indictment based on “words of

similar import.” United States v. Vogt, 910 F.2d 1184, 1201 (4th Cir. 1990), cert.

denied, 498 U.S. 1083 (1991) (quoting Finn v. United States, 256 F.2d 304, 306

(4th Cir. 1958)).

This Court does not have jurisdiction to hear Davis’s cross-appeal since

Davis has not yet been sentenced, and he is not subject to a final judgment. See 28

U.S.C. 1291. The challenged order also does not fall within the limited class of

issues that may be raised pursuant to the collateral order doctrine. See Flanagan v.

United States, 465 U.S. 259 (1984). Accordingly, there is no basis to establish this

Court’s jurisdiction for Davis’s cross-appeal, and it should be dismissed.

ARGUMENT

INDICTMENT REQUIREMENTS PURSUANT TO RING AND APPRENDI

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court

held that, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” In Ring v. Arizona, 536 U.S. 584

(2002), the Supreme Court applied Apprendi to Arizona’s capital sentencing

scheme, in which the trial judge alone conducted the post-conviction penalty

hearing and determined the existence of statutory aggravating factors to support a

death sentence. Reiterating its holding in Apprendi, the Supreme Court held, “[i]f a

State makes an increase in * * * punishment contingent on the finding of a fact,

 - 20 -
that fact -- no matter how the State labels it -- must be found by a jury beyond a

reasonable doubt.” Ring, 536 U.S. at 602. Thus, viewing the inquiry as “one not of

form, but of effect,” ibid. (quoting Apprendi, 530 U.S. at 494), the Supreme Court

held that Arizona’s aggravating factors “operate as ‘the functional equivalent of an

element of a greater offense’” and, therefore, they must be found by a jury under

the reasonable doubt standard of the Sixth Amendment. Id. at 609 (quoting

Apprendi, 530 U.S. at 494).

The Federal Death Penalty Act’s capital sentencing scheme operates like the

Arizona scheme in Ring in that a federal capital defendant is eligible for the death

penalty only upon findings at a penalty hearing of both a mental culpability factor

and a statutory aggravating factor, and a determination that the aggravating factors

outweigh any mitigating factors. 18 U.S.C. 3591-3593. Because the federal

statutory scheme already required that juries find those factors under the reasonable

doubt standard, however, federal capital practice is not affected by Ring’s specific

holding that “the Sixth Amendment required jury findings” as to the aggravating

factors alleged to justify a sentence of death. 536 U.S. at 597 n.4.

The “tightly delineated” issue in Ring concerned only whether “the Sixth

Amendment required jury findings” on the aggravating factors relied upon to

establish eligibility for a death sentence. The Supreme Court specifically noted

that Ring did not involve a claim of a defective indictment. Id. at 597-598 n.4. The

Supreme Court in United States v. Cotton, 535 U.S. 625 (2002), however, made

clear that “any fact that increases the penalty for a crime beyond the prescribed
 - 21 -
statutory maximum must[,] * * * [i]n federal prosecutions, * * * be charged in the

indictment,” id. at 627 (citation omitted). Thus, in light of Cotton, the logic of Ring

necessarily implies that federal grand juries must now, as a matter of constitutional

law, allege the requisite aggravating factors that increase the maximum available

penalty from life imprisonment to death in federal capital prosecutions. See

generally Harris v. United States, 536 U.S. 545, 564-567 (2002) (plurality

opinion); Jones v. United States, 526 U.S. 227, 243 n.6 (1999).7 The requisite

elements for death eligibility are mental culpability and a statutory aggravating

factor. 18 U.S.C. 3591.8

7
See also Sattazahn v. Pennsylvania, 537 U.S. 101, 111-112 (2003)
(Scalia, J., concurring) (principles of Ring and Apprendi mean that “murder plus
one more [statutory] aggravating circumstances [to establish death eligibility] is a
separate offense from ‘murder’ simpliciter;” acquittal of elements for death
eligibility triggers Fifth Amendment double jeopardy principles).
8
Ring explicitly overruled Walton v. Arizona, 497 U.S. 639 (1990), which
held that a court may determine the statutory aggravating factors for the imposition
of death. In Cabana v. Bullock, 474 U.S. 376, 384-386 (1986), the Supreme Court
held that, for purposes of the Eighth Amendment, a judge or jury could find the
requisite intent to commit murder for imposition of a death sentence. See Hopkins
v. Reeves, 524 U.S. 88, 99-100 (1998) (reiterating the holding in Cabana). The
Supreme Court’s decision in Cabana follows on its decision in Enmund v. Florida,
458 U.S. 782, 797 (1982), which held that the Eighth Amendment prohibits
imposition of the death penalty on an individual who only aids and abets a felony in
the course of murder, but does not kill, attempt to kill, or intend that a killing take
place.

Some of the Supreme Court’s analysis in Cabana, 474 U.S. at 384-385,

which is based on Fifth Amendment principles, is brought into serious doubt in
light of Apprendi, Cotton, and Ring. Because Ring and Walton did not raise the
issue of who must assess the requisite intent, the Supreme Court did not need to
address the conflict or tension between Cabana, Apprendi, Cotton, and its decision
(continued...)
 - 22 -
In addition, virtually every court to consider the question has held, or stated

in dicta, based on the principles set forth in Ring, Apprendi, and Jones, that a

statutory aggravating factor that establishes a defendant’s eligibility for a death

sentence must be alleged in an indictment. See, e.g., United States v. Jackson, 327

F.3d 273, 287 (4th Cir. 2003) (Niemeyer, J., concurring), petition for cert. pending,

No. 03-5929; United States v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir. 2002) (same),

petition for cert. pending, No. 03-6148; United States v. Safarini, 257 F. Supp. 2d

191, 199 (D.D.C. 2003); United States v. Regan, 221 F. Supp. 2d 672, 680 (E.D.

Va. 2002); but see United States v. Battle, 264 F. Supp. 2d 1088, 1102-1103 (N.D.

Ga. 2003) (Ring does not require that a statutory aggravating factor be set forth in

the indictment), appeal pending, No. 03-14908. Other courts that were presented

8
(...continued)
in Ring. Cf. 21 U.S.C. 848(k), (n) (mens rea is a statutory aggravating factor
((n)(1)), and a jury finding is essential for further consideration of imposition of a
death sentence).

Although the United States brings Cabana to this Court’s attention, the
United States further asserts that Cabana does not “directly control” the issue
before this Court and, therefore, it is not bound to follow Cabana’s holding. Cf.
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)
(courts of appeal should follow the Supreme Court precedent that “has direct
application” to the issue at hand, even if the underlying reasoning is rejected in
another line of cases). The issue and holding in Cabana concerned the court and
jury’s role under the Eighth Amendment while here the challenge is based on the
Fifth Amendment. Moreover, Cabana did not address the requirements for an
indictment when the federal government seeks the death penalty. As discussed
herein, to hold that both mental culpability and a statutory aggravating factor must
be alleged in the indictment and found by the jury is consistent with the logic of
Ring, the Supreme Court’s rulings in Cotton and Apprendi, this Court’s precedent,
and other court’s interpretations of Ring.
 - 23 -
with broader challenges have held that both the mens rea and a statutory

aggravating factor to establish eligibility for the death penalty must be alleged in

the indictment. See United States v. Haynes, 269 F. Supp. 2d 970, 979 (W.D.

Tenn. 2003) (cases cited); United States v. Sampson, 245 F. Supp. 2d 327, 332 (D.

Mass. 2003); United States v. Lentz, 225 F. Supp. 2d 672, 680 (E.D. Va. 2002).9

While the former cases only presented the issue of the need to allege a statutory

aggravating factor, the analysis implicitly encompasses the requirement that mental

culpability also must be alleged in the indictment. See, e.g., Jackson, 327 F.3d at

287 (Niemeyer, J., concurring); Regan, 221 F. Supp. 2d at 680.

This Court observed in United States v. Bernard, 299 F.3d 467, 488 (2002),

cert. denied, 123 S. Ct. 2572 (2003), that “Ring did not hold that indictments in

capital cases must allege aggravating and mental state factors” (emphasis added).

That statement is literally true since Ring did not address requirements for a federal

indictment. However, as shown by this Court’s more recent interpretations of

Apprendi and Ring, the principles and “import” of Apprendi and Ring require that a

federal indictment allege mental culpability and a statutory aggravating factor to

9
While the mens rea or intent requirement and at least one statutory
aggravating factor must be included in the indictment to establish and give notice
of death eligibility, nonstatutory aggravating factors need not be set forth in the
indictment. The latter category is considered in the assessment of whether to
impose a death sentence, and does not increase the sentence beyond the statutory
maximum and, therefore, need not be alleged in an indictment. See Jackson, 327
F.3d at 304-305 (opinion of court); Haynes, 269 F. Supp. 2d at 980; United States
v. Johnson, 239 F. Supp. 2d 924, 943 (N.D. Iowa 2003); Regan, 221 F. Supp. 2d at
680-681.
 - 24 -
give notice, and qualify a defendant as death eligible. United States v. Matthews,

312 F.3d 652, 663 (5th Cir. 2002), cert. denied, 123 S. Ct. 1604 (2003); see United

States v. Williams, 343 F.3d 423, 433 (5th Cir. 2003). In Matthews, 312 F.3d at

663, this Court stated:

[t]he import of Apprendi is inescapable: If a fact increases the

statutory maximum penalty, it must be pleaded in the indictment and
found by a jury beyond a reasonable doubt, regardless of whether
Congress intended the fact to be a “sentencing factor” or an “element”
of a separate offense.

Accordingly, this Court held that the elements of 18 U.S.C. 521, the “criminal

street gangs statute,” which imposes an enhanced sentence for certain crimes, must

be alleged in the indictment and found by a jury by proof beyond a reasonable

doubt. Matthews, 312 F.3d at 655, 661; see id. at 662 & n.11. Similarly, in

Williams, 343 F.3d at 433, this Court held that 18 U.S.C. 242 identifies three

distinct offenses and that, in light of Apprendi and Ring, the elements that subject a

defendant to the maximum sentence of ten years’ imprisonment – bodily injury or

use of a dangerous weapon – must be alleged in the indictment and found by a jury

beyond a reasonable doubt. Thus, consistent with Cotton, Apprendi, the logic of

Ring, and this Court’s precedent, this Court should affirm the district court’s

conclusion that a federal indictment must allege the mental culpability and a

statutory aggravating factor under the FDPA to seek a death sentence. See

Williams, 343 F.3d at 433; Matthews, 312 F.3d at 663.

 - 25 -
II

SUFFICIENCY OF AN INDICTMENT

The requirement that an indictment allege the facts that make a defendant

eligible for a death sentence under the Federal Death Penalty Act (FDPA) does not

alter the standard for the sufficiency of an indictment. See Hamling v. United

States, 418 U.S. 87, 117 (1974). To be sufficient, the indictment first must

“contain[] the elements of the offense charged and fairly inform[] a defendant of

the charge against which he must defend, and, second, enable[] him to plead an

acquittal or conviction in bar of future prosecutions for the same offense.” Ibid.

(emphasis added).

This Court’s analysis of whether an indictment is constitutionally sufficient

to give notice is governed by “practical, not technical considerations.” United

States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir.), cert. denied, 519 U.S. 987 (1996).

“The law [on indictments] does not compel a ritual of words.” United States v.

Wilson, 884 F.2d 174, 179 (5th Cir. 1989) (citation omitted). “It is settled law

* * * that an indictment need not precisely track the language of the statute.”

United States v. Hernandez, 891 F.2d 521, 524 (5th Cir. 1989) (indictment citing

18 U.S.C. 924(c) but not including certain statutory text is still sufficient; no

prejudice to defendant), cert. denied, 495 U.S. 909 (1990).

Rule 7(c)(3) of the Federal Rules of Criminal Procedure states, “[u]nless the

defendant was misled and thereby prejudiced, neither an error in a citation nor a

citation’s omission is a ground to dismiss the indictment or information or to

 - 26 -
reverse a conviction” (emphasis added). Consistent with this Rule, this Court has

upheld indictments that have been silent, or identified an incorrect statutory basis

for the charge or sentence, because the indictments still alleged the essential

elements and gave reasonable notice to the defendant of the charged offense. See

United States v. Threadgill, 172 F.3d 357, 373 (5th Cir.) (indictment was valid

despite failure to identify the specific Texas statute violated to establish federal

gambling charge; no prejudice since the defendants “must have known” their

charge given that only one statute could meet description; citing earlier version of

Rule 7(c)(3)), cert. denied, 528 U.S. 871 (1999); United States v. Greenwood, 974

F.2d 1449, 1472 (5th Cir. 1992) (indictment’s incorrect classification of

methamphetamine did not restrict court’s authority to impose a more harsh

sentence pursuant to the correct drug schedule), cert. denied, 508 U.S. 915 (1993);

United States v. Kennington, 650 F.2d 544, 546 (5th Cir. 1981) (incorrect citation

in indictment’s caption (18 U.S.C. 371) does not void conviction when text

identifies elements and correct citation for conviction (18 U.S.C. 841)); United

States v. Bethany, 489 F.2d 91, 93 (5th Cir. 1974) (per curiam) (indictment’s

incorrect citation to 18 U.S.C. 2 is not a basis to reverse conviction when

allegations in the indictment establish a crime). In Kennington, 650 F.2d at 546,

this Court further held that a charged conspiracy to violate 18 U.S.C. 841 gave

defendants sufficient notice of sentencing pursuant to 18 U.S.C. 846, even without

citation to the latter provision.

 - 27 -
As noted, the failure to allege a statutory element of an offense is not

necessarily fatal to an indictment. See, e.g., Hernandez, 891 F.2d at 524

(indictment not constitutionally flawed because of failure to allege gun was carried

“in relation to” drug trafficking crime, as set forth in statute); see also United States

v. Ramirez, 233 F.3d 318, 323 (5th Cir. 2000) (an indictment may have been

“better” if it stated the category of offense (“all other cases”) under 18 U.S.C. 111,

but it was not constitutionally required because general statutory cite and

description of illegal conduct “adequately informed” defendant of charged

offense).

In fact, this Court has concluded that an indictment, as a whole, may

incorporate or “fairly import[]” an element of an offense that is not specifically

identified. United States v. Henry, 288 F.3d 657, 662 (5th Cir.) (knowledge

requirement for charge under 18 U.S.C. 922 and 924 is “fairly imported” or

“inferred” even though “the allegations may not necessarily encompass a finding of

knowledge” given a reading of the indictment’s facts and statutory citation with

maximum liberality) (emphasis added), cert. denied, 537 U.S. 902 (2002); see

Wilson, 884 F.2d at 179-181 (requisite intent is inferred in the indictment, despite

omission, given allegations that the defendant used or carried a firearm during and

in relation to a drug trafficking crime); United States v. Bieganowski, 313 F.3d 264,

285 (5th Cir. 2002) (indictment alleging mail fraud was valid despite the absence of

an allegation that the false statements were “material” when allegations “warrant an

inference” of materiality), cert. denied, 123 S. Ct. 1956 (2003). Thus, “the test of
 - 28 -
the validity of an indictment is not whether the indictment could have been framed

in a more satisfactory manner, but whether it conforms to minimal constitutional

standards.” Ramirez, 233 F.3d at 323; Wilson, 884 F.2d at 179 (same quote) (citing

United States v. Webb, 747 F.2d 278, 284 (5th Cir. 1984), cert. denied, 469 U.S.

1226 (1985)).

The Fourth Circuit rejected a claim nearly identical to Davis and Hardy’s;

that is, an assertion that a death sentence based on an indictment issued before Ring

was invalid because the indictment did not allege “any” of the FDPA’s statutory

aggravating factors. United States v. Jackson, 327 F.3d 273, 303-304 (2003)

(opinion of the court),petition for cert. pending, No. 03-5929; see id. at 281-287

(Niemeyer, J., concurring).10 Despite the absence of any citation to or quotation

from the FDPA, the Fourth Circuit held that the indictment’s charge that Jackson

violated 18 U.S.C. 924(j)(1) by committing murder during the commission of

kidnaping gave Jackson sufficient notice of his eligibility for death based on the

FDPA’s statutory aggravating factor of death occurring during the commission of,

among other crimes, kidnaping. Id. at 303 n.1, 304; see 18 U.S.C. 3592(c)(1).

10
In his reply brief, Jackson alleged for the first time that an indictment
must identify all statutory aggravating factors for death eligibility to be valid. See
Jackson, 327 F.3d at 304 (opinion of court). Both the majority, id. at 304-305, and
Judge Niemeyer, in his concurrence, id. at 288-289, rejected this assertion on
review for plain error. The issues before this Court are not raised in Jackson’s
Petition for Certiorari. Jackson’s Petition challenges the court of appeals’
application of plain error review to his belated claim that all statutory aggravating
factors must be alleged in the indictment. Jackson also asserts claims of double
jeopardy based on his state court conviction and ineffective assistance of counsel.
See Jackson v. United States, No. 03-5929.
 - 29 -
Although the majority’s analysis does not rely on Ring or Apprendi, Judge

Niemeyer’s concurrence thoroughly analyzed the principles set forth in those and

related cases to conclude that an indictment must identify the statutory aggravating

factor(s) that render a defendant eligible for the death penalty. Jackson, 327 F.3d

at 281-287. Judge Niemeyer next concluded that the Indictment, despite the

absence of citation to the FDPA, sufficiently identified aggravating factors to

render Jackson eligible for death. Id. at 287-299. First, the Indictment alleged that

death occurred during the commission of kidnaping, which satisfied FDPA Section

3592(c)(1). Id. at 288 (Niemeyer, J., concurring). Moreover, the indictment’s

allegation of aggravated sexual abuse under 18 U.S.C. 2241 gave Jackson

sufficient notice of his eligibility for death based on a second FDPA statutory

aggravating factor, Section 3592(c)(6), which applies to an offense that involves

“serious physical abuse to the victim.” Ibid.; see United States v. Battle, 264 F.

Supp. 2d 1088, 1102-1103 (N.D. Ga. 2003) (if Ring required that the indictment

charge intent and a statutory aggravating factor, indictment satisfied FDPA even

without “duplicat[ion]” of FDPA’s text; murder “with malice aforethought” gave

notice of death eligibility under (FDPA) Section 3591(a)(2)(A); allegations of

murder while defendant was serving a term of life imprisonment similarly satisfied

(FDPA) Section 3592(b)(3)), appeal pending, No. 03-14908.

 - 30 -
III

BECAUSE DAVIS AND HARDY CHALLENGED THE INDICTMENT

AFTER TRIAL AND APPEAL, THE INDICTMENT IS REVIEWED
WITH MAXIMUM LIBERALITY

The United States recognizes that Davis and Hardy raised a timely challenge

to the sufficiency of an indictment for purposes of sentencing. See United States v.

Stewart, 306 F.3d 295, 310 (6th Cir. 2002), cert. denied, 537 U.S. 1138 (2003).

Given the unusual procedural posture of this case at the time of Davis and Hardy’s

initial challenge, however, double jeopardy principles make it impossible for the

government to supersede the indictment to correct any error or omission. See

Jeffers v. United States, 432 U.S. 137, 150 (1977). Davis and Hardy have not

alleged, nor can they reasonably assert, that they were prejudiced since they

received ample and undeniable notice of the United States’ intent to seek the death

penalty. The United States, however, is hindered because it cannot take corrective

action in this instance. In these circumstances, this Court reads an indictment with

“maximum liberality.” United States v. Henry, 288 F.3d 657, 660 (5th Cir.), cert.

denied, 537 U.S. 902 (2002).

This Court has held repeatedly that when a challenge to an indictment is

raised for the first time on appeal, and in the absence of prejudice, an indictment is

“read with maximum liberality[,] finding it sufficient unless it is so defective that

by any reasonable construction, it fails to charge the offense for which the

defendant is convicted.” Ibid. (quoting United States v. Fitzgerald, 89 F.3d 218,

221 (5th Cir. 1996) (despite failure to allege specifically, indictment is construed to
 - 31 -
allege defendant’s knowledge given allegations that the defendant possessed a

firearm while under a restraining order, and citation to 18 U.S.C. 922(g)(8) and

924(a)(2), cert. denied 519 U.S. 987 (1996)); United States v. Richards, 204 F.3d

177, 191-193 (5th Cir.) (indictment alleging mail and wire fraud is valid, when read

with maximum liberality, given description of statements, overt acts, and context,

despite the absence of an allegation that the false statements were “material”), cert.

denied, 531 U.S. 826 (2000); United States v. Wilson, 884 F.2d 174, 179 (5th Cir.

1989) (court “read[s] the indictment liberally” because the challenge is first raised

on appeal without showing prejudice; defendant’s scienter is “fairly import[ed]”

even in absence of allegation of “knowing”).

The Supreme Court and other circuits have extended the rule of reading an

indictment with maximum liberality to cases in which an indictment is challenged

before appeal, but after jeopardy has attached. See, e.g., Hagner v. United States,

285 U.S. 427, 433 (1932) (for challenge raised post-verdict and without evidence

of prejudice, “it is enough that the necessary facts appear in any form, or by a fair

construction can be found within [its] terms”); United States v. Avery, 295 F.3d

1158, 1174 (10th Cir.) (“Where a defendant first challenges ‘the absence of an

element of the offense’ after a jury verdict, ‘the indictment [will be deemed]

sufficient if it contains words of similar import to the element in question.’ * * *

‘[W]e will find the indictment sufficient unless it is so defective that by any

reasonable construction, it fails to charge the offense for which the defendant is

convicted.’”) (citation omitted), cert. denied, 537 U.S. 1024 (2002); United States
 - 32 -
v. Olson, 262 F.3d 795, 799 (8th Cir. 2001) (“when the sufficiency of an

indictment is challenged after jeopardy attaches,” the court should “liberally

construe the indictment, finding it sufficient ‘unless it is so defective that by no

reasonable construction can it be said to charge the offense for which the

defendants were convicted’”) (emphasis added and citation omitted); United States

v. Sabbeth, 262 F.3d 207, 218 (2d Cir. 2001) (“Where, as here, a defendant

challenges the sufficiency at the close of the Government’s case, we hold that the

indictment should still be construed in a liberal manner.”); United States v. Vogt,

910 F.2d 1184, 1201 (4th Cir. 1990) (“[w]hen a post-verdict challenge to the

sufficiency of an indictment is made, ‘every intendment is then indulged in support

of . . . sufficiency’”) (quoting Finn v. United States, 256 F.2d 304, 307 (4th Cir.

1958)), cert. denied, 498 U.S. 1083 (1991).

On July 31, 1995, prior to trial, the United States gave Davis and Hardy

notice of its intent to seek the death penalty upon conviction of any count, and

identified the applicable mental culpability provisions and statutory aggravating

factors to establish their death eligibility (2 R. 309-310/D. Doc. 179 (Notice to

Hardy); 2 R. 311-312/D. Doc. 178 (Notice to Davis)). After conviction, the jury

found the requisite intent and the statutory aggravating factor of substantial

planning and premeditation for both defendants (RE 10), and sentenced Davis and

Hardy to death (RE 11; RE 12). After this Court vacated their original sentences,

the United States again gave notice to Davis and Hardy of its intent to seek the

death penalty, identifying the relevant mental culpability provisions and the
 - 33 -
statutory aggravating factor of substantial planning and premeditation (7 R. 2247-

2248/D. Doc. 744) (Davis); 1 3d Supp. R. 1756-1756a/H. Doc. 743 (Hardy)).

Thus, there clearly is no basis for Davis or Hardy to assert they did not have

sufficient notice of the United States’ intent to seek the death penalty. As the

question before the Court is one of the technical sufficiency of the Indictment in

light of Ring, and given the unusual procedural posture of this case, the Court

should review the Indictment with maximum liberality. Cf. Henry, 288 F.3d at

660; Wilson, 884 F.2d at 179-181.

IV

THE THIRD SUPERSEDING INDICTMENT SUFFICIENTLY ALLEGES

THAT DAVIS AND HARDY HAD THE REQUISITE INTENT
UNDER THE FDPA TO MURDER KIM MARIE GROVES

The district court erred in its conclusion that this Indictment failed to give

adequate notice to Davis and Hardy of their respective mental culpability and

substantial planning and premeditation, which, according to the lower court, bars

the jury’s consideration of a death sentence under the FDPA.

The charges and Overt Acts set forth in the Indictment, individually and in

combination, allege in detail deliberate acts by Davis and Hardy to conspire, plan,

and commit the murder of Ms. Kim Marie Groves. By describing their actions, the

Indictment gave sufficient notice of the mental culpability requirement to support

death eligibility under the FDPA. See Fed. R. Crim. P. 7(c)(3); cf. United States v.

Jackson, 327 F.3d 273, 287-289 (4th Cir. 2003) (Niemeyer, J., concurring), petition

for cert. pending, No. 03-5929; id. at 303-304 (opinion of court). The Indictment
 - 34 -
was sufficient to support the mental culpability under paragraphs 18 U.S.C.

3591(a)(2)(A)-(C). First, the fifth Overt Act described in Count One of the

Indictment states that Hardy “shot Kim Marie Groves in the head with a 9 mm

firearm, which resulted in her death” (RE 8:291). That statement, whether viewed

in isolation or in conjunction with other facts outlining the preparation for Ms.

Groves’ murder, establishes that Hardy “intentionally killed the victim” within the

meaning of 18 U.S.C. 3591(a)(2)(A). The absence of the term “intentional” is not

fatal since, in toto, the allegations establish the deliberate nature of the killing. Cf.

United States v. Henry, 288 F.3d 657, 662 (5th Cir.) (knowledge element imported

even though not alleged), cert. denied, 537 U.S. 902 (2002).

In addition, the fifth Overt Act and Count Two’s allegation that Davis and

Hardy, while “aiding and abetting each other, did willfully deprive Kim Marie

Groves * * * of [constitutional] rights * * * by shooting Kim Marie Groves in the

head with a firearm, resulting in her death” (RE 8:291-292), gave notice to Davis

and Hardy of intent as defined in Section 3591(a)(2)(B), which calls for proof that

the defendant “intentionally inflicted serious bodily injury that resulted in the death

of the victim.”

The Overt Acts describe how Davis called Hardy “to arrange the murder of

Kim Marie Groves;” Davis arranged for a meeting with Hardy and Causey to

identify Ms. Groves; Davis conducted surveillance in order to locate Ms. Groves;

and Davis contacted Hardy in order to report her location and order her killed,

which Hardy, in turn, agreed to, and carried out (RE 8:290-291). These details, in
 - 35 -
conjunction with the charges in Counts One (engaging in a “willful[]” conspiracy

to use excessive force with death resulting) and Count Two (willfully depriving

Ms. Groves of her civil rights by use of excessive force through shooting),

simultaneously reflect the grand jury’s conclusion, and notice to Davis and Hardy

that they each “intentionally participated in an act, contemplating that the life of a

person would be taken * * * and the victim died as a direct result of the act,” which

satisfies the mental culpability element pursuant to Section 3591(a)(2)(C).

Moreover, the petit jury’s unanimous conclusions at the initial penalty phase

that Hardy intentionally killed Ms. Groves, which satisfies Section 3591(a)(2)(A),

and that Davis engaged in intentional acts contemplating that Ms. Groves’ life

would be taken, which satisfies Section 3591(a)(2)(C) (6 R. 1941, 1943), further

support the conclusion that the grand jury would have made similar findings when

it issued the indictment. See United States v. Mechanik, 475 U.S. 66, 67 (1986)

(“petit jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori

that there was probable cause to charge the defendants with the offenses for which

they were convicted”); cf. United States v. Cotton, 535 U.S. 625, 633 (2002) (plain

error in failing to allege drug quantity in indictment did not substantially affect

verdict given overwhelming evidence, and conclusion that grand jury “would have

also found” drug quantity if presented); United States v. Matthews, 312 F.3d 652,

665 (5th Cir. 2002) (indictment’s failure to allege essential element is harmless

since “any rational grand jury, when presented with a proper indictment,” would

have found all elements for the offense), cert. denied, 123 S. Ct. 1604 (2003);
 - 36 -
United States v. Patterson, 241 F.3d 912, 914 (7th Cir.) (if the petit jury found the

existence of a fact beyond a reasonable doubt, the court may conclude the grand

jury would have made the same finding given its lower standard of proof), cert.

denied, 534 U.S. 853 (2001).

Quotation of the language of FDPA Section 3591(a)(2) would not produce

any greater notice to defendants than is conveyed by the description of the

defendants’ deliberate actions. No additional facts or allegations need be alleged to

reflect Davis and Hardy’s intent.

The Indictment’s description of Davis and Hardy’s intentional acts gave fair

notice, through functionally equivalent terms and descriptions, of the mental

culpability element for death eligibility. When further considered with “maximum

liberality,” a reasonable and fair construction of the allegations establishes, at a

minimum, that Hardy intentionally killed Ms. Groves, and that Davis intentionally

acted contemplating that her life would be taken. Cf. Henry, 288 F.3d at 660;

United States v. Vogt, 910 F.2d 1184, 1201 (4th Cir. 1990), cert. denied, 498 U.S.

1083 (1991). Accordingly, the Indictment sufficiently gave Davis and Hardy

notice of their requisite intent to be death eligible.

THE INDICTMENT SUFFICIENTLY ALLEGES THAT DAVIS AND HARDY

ENGAGED IN SUBSTANTIAL PLANNING AND PREMEDITATION
LEADING TO THE MURDER OF KIM MARIE GROVES

The district court erred in concluding that the overt acts “can not be

substituted for, nor do they translate to, the distinct finding that ‘substantial’
 - 37 -
planning and ‘substantial’ premeditation preceded this death” (RE 13:3107). The

Overt Acts, which outlined the numerous communications between Davis, Hardy,

and Causey, and their individual efforts prior to, and in coordination of, Ms.

Groves’ murder, amply establish that the defendants acted with substantial

planning and premeditation, and gave sufficient notice to Davis and Hardy of this

factor to render them death eligible. Cf. United States v. Jackson, 327 F.3d 273,

288 (4th Cir. 2003) (Niemeyer, J., concurring), petition for cert. pending, No. 03-

5929; id. at 303-304 (opinion of court); United States v. Tipton, 90 F.3d 861, 896

(4th Cir. 1996), cert. denied, 520 U.S. 1253 (1997).

First, the district court’s conclusion is inconsistent with this Court and other

courts’ interpretations of the term “substantial.” Cf. United States v. Flores, 63

F.3d 1342, 1373-1374 (5th Cir. 1995), cert. denied, 519 U.S. 825 (1996).

“Substantial,” as used in “substantial planning and premeditation,” carries a

common sense meaning that does not require further explanation for a jury to

understand. Ibid. This Court has held that “substantial planning and

premeditation” in 21 U.S.C. 848(n)(8) and the FDPA is not unconstitutionally

vague, that the term “substantial” alone is sufficient for instructing a jury, and that

it often “denote[s] a thing of high magnitude.” Flores, 63 F.3d at 1373-1374; see

United States v. Webster, 162 F.3d 325, 354 n.70 (5th Cir. 1998) (Flores’s

conclusion of constitutionality of “substantial planning and premeditation” in 21

U.S.C. 848 applies to FDPA Section 3592(c)(9)), cert. denied, 528 U.S. 829

(1999). The courts state that “substantial planning and premeditation”

 - 38 -
encompasses more than the minimal amount necessary to commit an offense, but it

does not require an extraordinary effort. See, e.g., Tipton, 90 F.3d at 896

(“substantial * * * planning and premeditation” factor requires only “a higher

degree of planning * * * than the minimum amount sufficient to commit the

offense;” “more than merely adequate” gives a “commonly understood meaning”

of the statutory factor); United States v. McCullah, 76 F.3d 1087, 1110-1111 (10th

Cir. 1996) (aggravator requires only that planning be “considerable” or “ample for

the commission of the crime” but need not be “considerably more” than “typical

for a murder”), cert. denied, 520 U.S. 1213 (1997).

Here, many of the same Overt Acts that establish Davis and Hardy’s intent

similarly establish their substantial planning and premeditation. Davis called

Hardy “to arrange the murder of Kim Marie Groves” because she had filed an

internal complaint against Davis, and Davis wanted to eliminate any further

communication by Ms. Groves with law enforcement officers (RE 8:290). Davis

contacted Causey to arrange for a meeting with Hardy and Causey so he could

identify Ms. Groves to them; Davis conducted surveillance while on duty and in his

police car in order to locate Ms. Groves; Davis contacted Hardy in order to report

Ms. Groves’ location, describe her appearance, and repeat his order to have her

killed; and Hardy, in turn, agreed to and did kill Ms. Groves soon thereafter (RE

8:290-291; see pp. 10-13, infra). This degree of coordination clearly reflects more

than the minimal effort necessary to commit murder. Cf. Tipton, 90 F.3d at 896.
 - 39 -
In addition, the allegations regarding Davis and Hardy’s communication and

planning (which conform to the evidence at trial), far exceed the efforts of other

defendants who courts have found engaged in substantial planning and

premeditation. Cf. Ibid. (defendants’ motive and travel to the victim’s apartment

with a gun to commit the murder reflected a premeditated purpose and “substantial

planning or premeditation,” even though actual killing was not done by firearm);

Jackson, 327 F.3d at 301 (Niemeyer, J., concurring) (murder after victim was

kidnapped and raped, yet without evidence of planning prior to kidnaping, satisfies

“substantial planning and premeditation”). Moreover, particularly when

considered with maximum liberality, Davis and Hardy’s acts in preparation and

coordination of Ms. Groves’ murder constitute “substantial planning and

premeditation.” Cf. United States v. Henry, 288 F.3d 657, 660 (5th Cir.), cert.

denied, 537 U.S. 902 (2002); United States v. Vogt, 910 F.2d 1184, 1201 (4th Cir.

1990), cert. denied, 498 U.S. 1083 (1991).

To the extent the district court’s ruling reflects a determination on the

sufficiency of the evidence (as opposed to an assessment of comparative or

substitute text for “substantial planning and premeditation”), that analysis is

foreclosed by the district court’s acceptance of the original petit jury’s findings of

this very aggravating factor during the penalty phase. Cf. United States v. Becerra,

155 F.3d 740, 752 (5th Cir. 1998) (“law of the case” generally precludes court from

revisiting issue previously decided); see also United States v. Mechanik, 475 U.S.

66, 67 (1986).
 - 40 -
The district court found that only a few hours passed between Davis’s

decision to murder Ms. Groves and her execution and concluded that was too short

a time period to support a finding of “substantial planning.” That finding is both

factually and legally flawed. First, the evidence at trial established that almost 24

hours passed between when Davis learned that Ms. Groves had filed the complaint

against him with the police department’s Internal Affairs office and her murder.

See Statement of Facts, pp. 12-13, infra. More importantly, the passage of time

between planning and execution is not determinative of whether a defendant’s

planning is substantial. It is axiomatic that the extent to which coincidence, luck,

or happenstance may advance a defendant’s criminal plan is irrelevant to an

assessment of the planning or coordination necessary to commit an offense.

Moreover, the district court’s conclusion that this Court’s earlier dismissal of

Count Three, which “alleged a plan with a long-range purpose,” “undermines” any

finding that the grand jury found “substantial planning and premeditation” is

flawed (RE 13:3110). Whether or not Davis and Hardy had a long range plan

regarding the future impact or consequence of Ms. Groves’ murder is irrelevant to

this analysis. Substantial planning considers the steps taken to prepare and commit

an offense. While a motive may be long standing, or may be based on the future,

long term consequences of an unlawful act, it need not be for a defendant’s actions

to constitute substantial planning and premeditation. Whether or not the

consequences of illegal conduct have long term impact has no bearing on whether

defendants’ coordination and planning before the crime is beyond a minimal effort.
 - 41 -
Finally, the district court’s “reluctan[ce]” to recognize a finding of

substantial planning, and therefore establish death eligibility, because only a

limited number of jurisdictions consider this element a statutory aggravating factor

is without legal basis (RE 13:3111). Since the element is included in the FDPA,

the only question before the court is whether it was adequately alleged.

Thus, as with mental culpability, the absence of verbatim text from the

FDPA does not render this Indictment invalid. Cf. Jackson, 327 F.3d at 288

(Niemeyer, J., concurring); id. at 303-304 (opinion of court); Henry, 288 F.3d at

662. By describing Davis and Hardy’s actions, the Indictment reflects the grand

jury’s determination, and gives notice to the defendants, that proof of the

allegations establishes substantial planning and premeditation.

VI

DAVIS’S CROSS-APPEAL SHOULD BE DISMISSED

FOR LACK OF JURISDICTION

The Court instructed the parties to address whether it has jurisdiction to hear

Davis’s cross-appeal. Since Davis has not yet been sentenced, there is no final

order from which an appeal may be taken under 28 U.S.C. 1291. See Midland

Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989); Flanagan v. United

States, 465 U.S. 259 (1984). Moreover, Davis cannot establish jurisdiction

pursuant to the “collateral order doctrine,” a “narrow exception” to the final

judgment rule, since his challenge to the court’s ruling on allowable sentencing
 - 42 -
options is reviewable upon entry of a final judgment. See Midland Asphalt, 489

U.S. at 798. Accordingly, his cross-appeal should be dismissed.

Section 1291 of Title 28 confers jurisdiction upon this Court for appeals

“from all final decisions of the district courts.” In criminal cases, a final decision

occurs after conviction and sentencing. Midland Asphalt, 489 U.S. at 798. The

final order rule is imposed to promote efficiency and avoid piecemeal litigation.

See Flanagan, 465 U.S. at 264; United States v. Hollywood Motor Car Co., 458

U.S. 263, 265 (1982) (per curiam).

The Court created the “collateral order doctrine” as a limited exception to the

requirement of a final order. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 545-547 (1949). To qualify for collateral order review, the challenged order

“must (1) ‘conclusively determine the disputed question,’ (2) ‘resolve an important

issue completely separate from the merits of the action,’ and (3) ‘be effectively

unreviewable on appeal from a final judgment.’” Midland Asphalt, 489 U.S. at 799

(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). This criteria is

applied stringently, and “with the utmost strictness” in criminal cases. Flanagan,

465 U.S. at 265.

Collateral appeals in criminal cases are limited to those pretrial orders that

affect “an asserted right the legal and practical value of which would be destroyed

if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850,

860 (1978). Thus, as the Supreme Court summarized in Flanagan, 465 U.S. at

265-266, there are only three pre-trial orders that may be reviewed on interlocutory
 - 43 -
appeal: denial of a motion to reduce bail, denial of a motion to dismiss on double

jeopardy grounds, and denial of a motion to dismiss based upon a violation of the

Speech and Debate Clause of the Constitution. See Abney v. United States, 431

U.S. 651, 659 (1977) (denial of dismissal based on double jeopardy falls within

collateral order review); see also United States v. Brown, 218 F.3d 415, 419-422

(5th Cir. 2000) (collateral order doctrine establishes jurisdiction for appeal of

district court’s restrictions imposed by a gag order on the parties’ comments during

the pendency of proceedings), cert. denied, 531 U.S. 1111 (2001). In each of these

instances, the right would be “irretrievably lost” if the defendant had to wait until

trial was completed to raise it. Flanagan, 465 U.S. at 266; see United States v.

Perez, 70 F.3d 345, 346-347 (5th Cir. 1995) (jurisdiction for double jeopardy

claim), vacated on other grounds, 519 U.S. 990 (1996).

In contrast, an appeal of a denial of dismissal of an indictment on other

grounds, such as a speedy trial or prosecutorial misconduct claim, does not qualify

under the collateral order doctrine. See Midland Asphalt, 489 U.S. at 798-802

(alleged violation of Fed. R. Crim. P. 6(e) does not establish collateral order

jurisdiction); MacDonald, 435 U.S. at 853-862 (speedy trial claim does not qualify

for collateral review); United States v. Jackson, 30 F.3d 572, 574 (5th Cir. 1994)

(dismissal without prejudice is not a “final judgment” under Section 1291 and does

not qualify for collateral review). Consistent with precedent, in United States v.

Comeaux, 954 F.2d 255 (5th Cir. 1992), this Court rejected defendant’s argument

that his claim of prosecutorial misconduct and unfair delay “raises the equivalent of
 - 44 -
a double jeopardy concern,” and held that it did not have jurisdiction to hear the

appeal. Id. at 259-261.

Davis’s assertion that the Indictment failed to give adequate notice of death

eligibility is not akin to a Double Jeopardy claim; he is not suffering an

irretrievable harm that cannot be corrected after sentencing is completed. Cf.

Comeaux, 954 F.2d at 259-260. Accordingly, just as in Comeaux, id. at 260, this

Court should conclude it does not have jurisdiction to hear Davis’s cross-appeal.

See Flanagan, 465 U.S. at 267.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s order

barring the jury’s consideration of a death sentence for Davis and Hardy.

Respectfully submitted,

JAMES B. LETTEN R. ALEXANDER ACOSTA

United States Attorney Assistant Attorney General

STEPHEN A. HIGGINSON JESSICA DUNSAY SILVER

MICHAEL E. MCMAHON JENNIFER LEVIN
Assistant United States Attorneys Attorneys
Eastern District of Louisiana U.S. Department of Justice
Civil Rights Division
Appellate Section - PHB 5018
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530
(202) 305-0025
 CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2003, two copies of the foregoing Brief

For The United States As Appellant - Cross-Appellee and a diskette containing the

brief were served by Federal Express, overnight mail, on the following counsel of

record:

Carol A. Kolinchak
636 Baronne Street
New Orleans, LA 70113

Julian R. Murray, Jr.

Chehardy, Sherman, Ellis, Breslin, Murray & Recile
1 Galleria Boulevard, Suite 1100
Metairie, LA 70001

Herbert V. Larson, Jr.

700 Camp Street
New Orleans, LA 70130

Denise LeBoeuf
Capital Post-Conviction Project of Louisiana
144 Elk Place, Suite 1606
New Orleans, LA 70112

Two copies of the foregoing Brief For The United States As Appellant -

Cross-Appellee and a diskette containing the brief were also served by first class

mail, postage prepaid, this 24th day of October, 2003, on:

Len Davis, #36192

Orleans Parish Prison
2800 Gravier Street
New Orleans, LA 70119

_________________________
Jennifer Levin
Attorney for the United States
 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)

I certify that the foregoing Brief For the United States As Appellant - Cross-

Appellee complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B).

This brief contains 11,967 words, excluding the parts of the brief exempted by Fed.

R. App. P. 32(a)(7)(B)(iii).

________________________
October 24, 2003 Jennifer Levin
Attorney for the United States