UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No. 01-30347 Summary Calendar ______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
PAUL HARDY,
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court For the Eastern District of Louisiana No. 94-CR-381-2-C ___________________________________________________ March 28, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
In United States v. Causey, 185 F.3d 407 (5th Cir. 1999), we
remanded this capital case back to the district court for a new
penalty trial for the appellant, Paul Hardy (“Hardy”). On remand,
Hardy filed motions with the district court to prohibit a
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 resentencing proceeding. Hardy alleged that a penalty retrial
would violate the double jeopardy clause of the Fifth Amendment.
He also asserted that the federal district court did not have
jurisdiction to convict him for violating 18 U.S.C. §§ 241 and 242.
The district court denied both motions. Hardy now appeals both
decisions.
I. Appellate Jurisdiction
28 U.S.C. § 1291 gives us jurisdiction to review “final
decisions of the district courts.” Pretrial orders rejecting claims
of former jeopardy are immediately appealable under the “collateral
order” exception to the finality requirement and thus satisfy the
jurisdictional prerequisites of § 1291. Abney v. United States,
431 U.S. 651, 657 (1977). Thus, we have jurisdiction to hear
Hardy’s double jeopardy claim.
We do not have jurisdiction over the “federal jurisdiction”
claim, however. In Abney, the Supreme Court stated that appellate
courts do not have jurisdiction under 1291 to pass on the merits of
other claims asserted in the interlocutory appeal unless those
other claims also fall within the collateral order exception to the
finality requirement. Id. at 663. To satisfy the collateral order
exception, the pretrial 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 the final judgment. U.S. v. Rey, 641
2 F.2d 222, 224 (5th Cir. 1981), cert. denied, 454 U.S. 861 (1981).
In the instant case, Hardy argues that 18 U.S.C. §§ 241 and
242 are either facially unconstitutional or unconstitutional as
applied to him because of the Supreme Court’s decision in United
States v. Morrison, 529 U.S. 598 (2000) which struck down Congress’
attempt to regulate violent acts by private citizens pursuant to
Section 5 of the Fourteenth Amendment. According to Hardy,
Morrison requires us to reexamine our previous determination, now
the law of the case, that the evidence presented during the
underlying guilt/innocence trial was sufficient to permit a
rationale jury to find that Hardy was acting under color of state
law.
Hardy suggests his arguments raise a jurisdictional question.
The government contends that these arguments merely go to whether
there was sufficient proof to satisfy an element of the crime, an
issue we have already decided. Regardless of how the question is
framed, this issue is not completely separate from the merits of
the action. Perhaps more importantly, it can be easily reviewed
after final judgment is entered after the resentencing. Therefore,
we will not review Hardy’s “federal jurisdiction” claim at this
interlocutory stage.
II. Double Jeopardy
During the first penalty trial, the district court provided
the jury with a penalty phase recommendation form which did not
3 link any possible death recommendation(s) to each individual count
in the indictment. Thus, after hearing all the evidence, the jury
recommended that Hardy be sentenced to death but could not specify
which count or counts Hardy was being put to death for having
violated. The district judge then sentenced Hardy to death. On
appeal, we reversed Hardy’s conviction on the Count 3 witness
tampering charge, violation of 18 U.S.C. § 1512(a)(1)(c), because
there was no evidence to prove that Groves had complained to
federal officers or was killed to prevent her from communicating
with federal law enforcement authorities.1
The Count 3 reversal rendered the original death penalty
sentence problematic to us because the jury recommendation form did
not make separate penalty findings as to each count of conviction.
In other words, the unusual nature of the jury recommendation form
and accompanying death sentence made it “impossible to say that the
jury’s penalty phase recommendations were not influenced by the
fact that Davis and Hardy had received three death eligible
convictions, rather than two.” Therefore, out of an abundance of
caution, we vacated Hardy’s sentence and remanded for a new
sentencing hearing.
As far as we can tell, Hardy now suggests that this language
1 One of the elements of Count 3 required the government to prove the Defendants, Hardy and Len Davis, killed the victim, Kim Groves, with the intent to prevent her from making a complaint to a federal law enforcement officer.
4 was intended to convey that we had acquitted him of the death
penalty. Therefore, subjecting him to a resentencing in which he
could again be sentenced to death violates the double jeopardy
clause of the Constitution. Hardy misinterprets our previous
language and thus does not have a viable argument under Supreme
Court precedent.
The Supreme Court has stated that the double jeopardy clause
applies to capital sentencing proceedings. Bullington v. Missouri,
451 U.S. 430, 446 (1981). However, the Supreme Court has also made
clear that the clause is only applicable when either the sentencing
judge or the reviewing court “has decided that the prosecution has
not proved its case” for the death penalty. Poland v. Arizona, 476
U.S. 147, 154 (1986). If neither the sentencing judge or reviewing
court has “decided that the prosecution has not proved its case”
there is no acquittal and hence the double jeopardy clause does not
bar capital resentencing. Id.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No. 01-30347 Summary Calendar ______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
PAUL HARDY,
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court For the Eastern District of Louisiana No. 94-CR-381-2-C ___________________________________________________ March 28, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
In United States v. Causey, 185 F.3d 407 (5th Cir. 1999), we
remanded this capital case back to the district court for a new
penalty trial for the appellant, Paul Hardy (“Hardy”). On remand,
Hardy filed motions with the district court to prohibit a
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 resentencing proceeding. Hardy alleged that a penalty retrial
would violate the double jeopardy clause of the Fifth Amendment.
He also asserted that the federal district court did not have
jurisdiction to convict him for violating 18 U.S.C. §§ 241 and 242.
The district court denied both motions. Hardy now appeals both
decisions.
I. Appellate Jurisdiction
28 U.S.C. § 1291 gives us jurisdiction to review “final
decisions of the district courts.” Pretrial orders rejecting claims
of former jeopardy are immediately appealable under the “collateral
order” exception to the finality requirement and thus satisfy the
jurisdictional prerequisites of § 1291. Abney v. United States,
431 U.S. 651, 657 (1977). Thus, we have jurisdiction to hear
Hardy’s double jeopardy claim.
We do not have jurisdiction over the “federal jurisdiction”
claim, however. In Abney, the Supreme Court stated that appellate
courts do not have jurisdiction under 1291 to pass on the merits of
other claims asserted in the interlocutory appeal unless those
other claims also fall within the collateral order exception to the
finality requirement. Id. at 663. To satisfy the collateral order
exception, the pretrial 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 the final judgment. U.S. v. Rey, 641
2 F.2d 222, 224 (5th Cir. 1981), cert. denied, 454 U.S. 861 (1981).
In the instant case, Hardy argues that 18 U.S.C. §§ 241 and
242 are either facially unconstitutional or unconstitutional as
applied to him because of the Supreme Court’s decision in United
States v. Morrison, 529 U.S. 598 (2000) which struck down Congress’
attempt to regulate violent acts by private citizens pursuant to
Section 5 of the Fourteenth Amendment. According to Hardy,
Morrison requires us to reexamine our previous determination, now
the law of the case, that the evidence presented during the
underlying guilt/innocence trial was sufficient to permit a
rationale jury to find that Hardy was acting under color of state
law.
Hardy suggests his arguments raise a jurisdictional question.
The government contends that these arguments merely go to whether
there was sufficient proof to satisfy an element of the crime, an
issue we have already decided. Regardless of how the question is
framed, this issue is not completely separate from the merits of
the action. Perhaps more importantly, it can be easily reviewed
after final judgment is entered after the resentencing. Therefore,
we will not review Hardy’s “federal jurisdiction” claim at this
interlocutory stage.
II. Double Jeopardy
During the first penalty trial, the district court provided
the jury with a penalty phase recommendation form which did not
3 link any possible death recommendation(s) to each individual count
in the indictment. Thus, after hearing all the evidence, the jury
recommended that Hardy be sentenced to death but could not specify
which count or counts Hardy was being put to death for having
violated. The district judge then sentenced Hardy to death. On
appeal, we reversed Hardy’s conviction on the Count 3 witness
tampering charge, violation of 18 U.S.C. § 1512(a)(1)(c), because
there was no evidence to prove that Groves had complained to
federal officers or was killed to prevent her from communicating
with federal law enforcement authorities.1
The Count 3 reversal rendered the original death penalty
sentence problematic to us because the jury recommendation form did
not make separate penalty findings as to each count of conviction.
In other words, the unusual nature of the jury recommendation form
and accompanying death sentence made it “impossible to say that the
jury’s penalty phase recommendations were not influenced by the
fact that Davis and Hardy had received three death eligible
convictions, rather than two.” Therefore, out of an abundance of
caution, we vacated Hardy’s sentence and remanded for a new
sentencing hearing.
As far as we can tell, Hardy now suggests that this language
1 One of the elements of Count 3 required the government to prove the Defendants, Hardy and Len Davis, killed the victim, Kim Groves, with the intent to prevent her from making a complaint to a federal law enforcement officer.
4 was intended to convey that we had acquitted him of the death
penalty. Therefore, subjecting him to a resentencing in which he
could again be sentenced to death violates the double jeopardy
clause of the Constitution. Hardy misinterprets our previous
language and thus does not have a viable argument under Supreme
Court precedent.
The Supreme Court has stated that the double jeopardy clause
applies to capital sentencing proceedings. Bullington v. Missouri,
451 U.S. 430, 446 (1981). However, the Supreme Court has also made
clear that the clause is only applicable when either the sentencing
judge or the reviewing court “has decided that the prosecution has
not proved its case” for the death penalty. Poland v. Arizona, 476
U.S. 147, 154 (1986). If neither the sentencing judge or reviewing
court has “decided that the prosecution has not proved its case”
there is no acquittal and hence the double jeopardy clause does not
bar capital resentencing. Id.
Here, both the penalty jury and sentencing judge determined
that the prosecution had proved that Hardy should be put to death.
In our previous opinion, while we held that there was insufficient
evidence to convict on Count 3, nowhere did we hold that the
prosecution had failed to prove its death penalty case. Indeed,
the evidence presented concerning whether Hardy should be put to
death easily applies to both Counts 1 and 2 (the counts which were
upheld). In our view, noting that the jury’s decision to impose
5 death penalty could have been affected by having three death
eligible convictions instead of two is a far cry from saying the
prosecution failed to prove Hardy should receive the death penalty.
Thus, we clarify that we never did and do not now hold that the
prosecution failed to prove that Hardy should be put to death.
Consequently, Hardy has never been acquitted of the “death penalty”
charges. His double jeopardy argument is thus without merit.2
III. CONCLUSION
We are without appellate jurisdiction to consider the district
court’s ruling concerning Hardy’s contention that 18 U.S.C. §§ 241
and 242 are either facially unconstitutional or unconstitutional as
applied to him in the context of this case. We affirm the district
court’s decision on Hardy’s “double jeopardy” claim. Therefore, we
once again remand this case to the district court so that Hardy can
be resentenced.
2 Hardy contends that Bullington and Arizona v. Rumsey, 467 U.S. 203 (1984) support his argument. They do not. In those cases, the original sentencers imposed life imprisonment, not death, on the two defendants. Thus, the defendants had been acquitted of capital murder. Because they had been acquitted, the double jeopardy clause prevented them from having to withstand a second death penalty sentencing proceeding. In contrast, however, Hardy has not been acquitted of capital murder by the penalty trial jury, sentencing judge, or by this court. Therefore, the double jeopardy clause does not prevent Hardy from having to undergo a second capital sentencing proceeding.