                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT



                                            No. 95-30860


UNITED STATES OF AMERICA,
                                                                               Plaintiff-Appellee,
                                                versus
JAMES M. LEWIS;
DEBRA FAYE LEWIS,
                                                                               Defendants-Appellants.


                            Appeal from the United States District Court
                               for the Western District of Louisiana

                                           August 19, 1996

Before JOLLY, DUHÉ, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       James M. Lewis and Debra Faye Lewis appeal their convictions for first degree murder under

Louisiana law pursuant to the Assimilative Crimes Act. Because the federal murder statute and

sentencing guidelines occupy the area of the law, they contend that the district court erred in refusing

to dismiss their indictments. They also challenge the sufficiency of the evidence as well as evidentiary

rulings made by the district court. Additionally, Debra Lewis argues that Battered Women’s

Syndrome diminished her capacity to form a specific intent to kill or inflict great bodily harm or to

aid and abet James Lewis. For the following reasons, we reverse the district court’s ruling regarding

the indictments but affirm the defendants’ convictions and sentences.
                                                    FACTS

            James Lewis and his wife, Debra Lewis, were arrested for the beating death of four-year-old

Jadasha D. Lowery, the biological daughter of James Lewis and Stacy Lowery. The death occurred

on the military reservation at Fort Polk in Vernon Parish, Louisiana, where Mr. Lewis was stationed

with the United States Army.1

            On the day of her death, Jadasha was subjected to severe beatings, which resulted in several

contusions and bruises on her scalp and which caused massive bruising over her entire body. The

body bruises caused hemorrhages beneath the skin that redirected one-third to two-thirds of her entire

blood volume from her circulatory system and into the tissues surrounding the injuries. The head

injuries caused Jadasha to suffer cerebral edema,2 which was identified as the cause of her death. The

indictment charged the Lewises with first degree murder under Louisiana law through the

Assimilative Crimes Act.3 After receiving guilty verdicts, both Lewises were sentenced to life

imprisonment. The Lewises appealed.

                                                DISCUSSION

A.          ASSIMILATIVE CRIMES ACT.




     1
         Fort Polk, a United States military reservation, is a federal enclave as defined in 18 U.S.C. § 7.
     2
   Cerebral edema is a condition in which the brain swells and presses on the brain stem and which
eventually causes respiratory function to cease.
     3
         The indictment provides as follows:

                    That on or about the 20th day of December, 1993, at Fort Polk,
                    Louisiana, in the Western District of Louisiana, upon lands acquired
                    for the use of the United States and under the exclusive jurisdiction
                    thereof, JAMES M. LEWIS and DEBRA FAYE LEWIS, defendants
                    herein, each knowingly and willfully aided and abetted, one by the
                    other, did, with specific intent to inflict great bodily harm, commit first
                    degree murder of Jadasha D. Lowery, a human being under the age of
                    twelve years, in violation of Title 14 Louisiana Revised Statutes
                    Annotated, Section 30(5), [Amended March 6, 1996 to 30(A(5)], all
                    in violation of Title 18, United States Code, Sections 7, 13, and 2. {18
                    U.S.C. §§ 7, 13, & 2; La. R.S. 14:30(5)}.

                                                        2
        The Lewises argue that the indictment under which they were charged is defective because

it improperly charges them under La. Rev. Stat. 14:30A(5) when 18 U.S.C. § 1111 criminalizes the

same conduct. Mr. Lewis asserts that first degree murder of a person under the age of twelve under

the Louisiana statute is comparable to second degree murder under section 1111, with the minor age

of the victim causing punishment to be enhanced under the sentencing guidelines. Mrs. Lewis

contends that the government was statute “shopping” when it charged them under Louisiana law in

order to obtain a lesser standard of proof and the benefit of more severe penalties in the event the jury

returned verdicts on lesser included offenses.

        Our examination of the Lewises’ indictment requires us to analyze the Assimilative Crimes

Act. Interpretations of statutes receive de novo review. Estate of Moore v. C.I.R., 53 F.3d 712, 714

(5th Cir. 1995). Similarly, review of a district court’s conclusion that an indictment is sufficient is

reviewed under the de novo standard. United States v. Green, 964 F.2d 365, 372 (5th Cir. 1992),

cert. denied, 506 U.S. 1055 (1993). After evaluating the language of the ACA, Supreme Court

precedent, and other federal jurisprudence, we are compelled to conclude that the Lewises’

indictment is invalid.

        The ACA makes punishable crimes occurring on federal enclaves although Congress has not

expressly addressed the conduct in the federal statutes. The ACA provides:

        Whoever within or upon any of the places now existing or hereafter reserved or
        acquired as provided in section 7 of this title, is guilty of any act or omission which,
        although not made punishable by any enactment of Congress, would be punishable if
        committed or omitted within the jurisdiction of the State . . . in which such place is
        situated, by the laws thereof in force at the time of such act or omission, shall be
        guilty of a like offense and subject to like punishment.

 18 U.S.C. § 13. Through the ACA the government may use state statutes to prosecute offenders

on federal enclaves “only if no act of Congress directly makes the offender’s conduct punishable.”

United States v. Brown, 608 F.2d 551, 553 (5th Cir. 1986). The ACA fills in gaps existing in federal

statutes regarding criminal law. Id. However, where Congress has enacted legislation criminalizing

conduct on the enclaves, the federal statutes preempt the state laws regarding those crimes. United

States v. Sharpnack, 355 U.S. 286, 291 (1958).

                                                   3
          The Supreme Court shed light on the limitations of the ACA in Williams v. United States, 327

U.S. 711 (1946). In Williams, the Court reversed the conviction of a white married man convicted

under the Arizona statutory rape law pursuant to the ACA for having sex with a seventeen-year-old

Indian girl on an Indian reservation. 327 U.S. at 725. The federal statutes punished carnal

knowledge of a minor girl when the victim was under the age of sixteen, whereas the Arizona statute

punished the same conduct when the victim was under the age of eighteen. The Arizona statute

provided a harsher penalty than the federal statute. Id. at 717. Interpreting the language existing in

the ACA at the time, the Court concluded that the precise acts of the defendant were made criminal

under federal statutes addressing adultery or fornication as well as carnal knowledge, and the

government could not enlarge the definition of the federal carnal knowledge crime by incorporating

the state statutory rape statute through the ACA. Id. at 717-18. The Court further noted that the

ACA “has a natural place to fill through its supplementation of the Federal Criminal Code, without

giving it the added effect of modifying or repealing existing provisions of the Federal Code.” Id. at

718. The language of the ACA referred “in a generic sense” to “acts of a general type or kind.” Id.

at 722.     The Court held that in Williams’ case “not only has the generic act been co vered by the

[federal] definition of having carnal knowledge, but the specific acts have been made ‘penal’ by the

[federal] definition of adultery.”    Id. at 723.

          This court, like the majority of the other circuits,4 has interpreted Williams as establishing a

“precise acts” test regarding the applicability of the ACA. See United States v. Brown, 608 F.2d 551,

554 (5th Cir. 1979). In Brown, the court held that the government could prosecute the defendant

  4
    The circuit split following Williams is well recognized. See, e.g., United States v. Broadnax, 688
F. Supp. 1080, 1081-82 (E.D. Va. 1988); and United States v. Smith, 614 F. Supp. 454, 460 (D. Me.
1985), vacated in part on other grounds, United States v. Mariea, 795 F.2d 1094 (1st Cir. 1986). The
majority view holds that the ACA does not apply when the “precise act” prohibited by the state
statute is defined and prohibited by the federal statute. See generally, United States v. Johnson, 967
F.2d 1431 (10th Cir. 1992), cert. denied, 506 U.S. 1082 (1993); United States v. Sasnett, 925 F.2d
392 (11th Cir. 1991); United States v. Griffith, 864 F.2d 421 (6th Cir. 1988), cert. denied, 490 U.S.
1111 (1989); United States v. Kaufman, 862 F.2d 236 (9th Cir. 1988); and Fields v. United States,
438 F.2d 205 (2d Cir.), cert. denied, 403 U.S. 907 (1971). Compare the minority view holding that
the ACA does not apply when the federal statute punishes the “generic conduct” covered in the
statute. United States v. Butler, 541 F.2d 730 (8th Cir. 1976).

                                                     4
under the Texas child abuse statute even though injury to a child could be punishable under the

federal assault statute because the precise act of injury to a child was not proscribed by federal law

and the state statute was designed to punish specific conduct of a different character than the conduct

proscribed by the federal assault statute. Mrs. Brown was charged with injuring her husband’s

biological two-year-old son, whom she struck on the head with a blunt, flat instrument. Though

surgery revealed a subdural hematoma covering the left side of his brain, the child survived. The

court in Brown rejected arguments that use of the child abuse statute enlarged the scope of the federal

offense. It found the child abuse and assault statutes different because of the nature of the offense

being punished. The court relied on the Second Circuit case, Fields v. United States, 438 F.2d 205

(2d Cir. 1971), to demonstrate that child abuse is a different type of assault than the conduct covered

under the federal assault statute.

        Similarly, in United States v. Fesler, 781 F.2d 384, 391 (5th Cir. 1986), the court clarified that

the federal statute and the state statute must involve different elements and must seek to punish

different conduct. In Fesler, the Feslers were charged with murder under the federal statute and

causing serious bodily injury under the Texas child abuse statute for the scalding death of their ten-

month-old daughter whom they deliberately dipped in scalding water. The defendants alleged that

the indictment violated the ACA. The court held that because the statutes covered different “precise

acts,” no violation had occurred. Id. at 391 The court noted that death of a human being, essential

for the manslaughter conviction, was unnecessary for the child abuse conviction. The court further

explained that “[i]t is important that the state statute seeks to punish a particular offense at which the

federal statute is not aimed, child abuse.” Id. Accordingly, the court upheld application of the ACA

in this context.

        This court consistently has found that child abuse constitutes a different “precise act” which

the government may charge in addition to murder under the federal statute. See United States v.

Webb, 796 F.2d 60, 62 (5th Cir. 1986), cert. denied, 479 U.S. 1038 (1987) (convicted of second

degree murder under the federal statute and injury to a child under the state statute for the death of


                                                    5
a six-year-old boy whose head was slammed against a wall and who was scalded). Federal

jurisprudence demonstrates that the different nature of the “act” regarding child abuse does not

eliminate the need for seeking punishment for murder under the federal statute when the abuse results

in death. See United States v. Phillip, 948 F.2d 241, 245 (6th Cir. 1991), cert. denied, 504 U.S. 930

(1992) (the defendant was charged with second degree murder under the federal statute and

committing and permitting child abuse under the Kentucky child abuse statute); and United States v.

Harris, 661 F.2d 138, 139 (10th Cir. 1981) (the defendant was charged with murder under the federal

statute and the Wyoming child abuse statute). Indeed, where conviction under the state statute was

allowed, the state child abuse statute was alleged in addition to murder under the federal statute,

rather than in place of it.

        Herein lies the distinction between the present case and Brown and Fesler. The government

in the present case has entirely usurped the federal murder statute rather than supplemented the

statute with “gap-filling” state law. The government uses the precise acts test as reasoned in Brown

and Fesler to argue that it may use the state murder statute although the federal statute already

punishes murder. We find that the precise acts test cannot save this indictment.

        The “precise act” sought to be punished under 18 U.S.C. § 1111 and La. Rev. Stat. §

14:30A(5) fo r murder of a victim under twelve5 is the intentional killing of a human being (i.e.,

“murder”). This is the conduct clearly identified in both statutes. Murder is punishable under both

the state and federal statutes though they define and punish the conduct differently. Section 1111

provides the following definition of murder: “Murder is the unlawful killing of a human being with

malice aforethought.” The section then delineates the elements needed for first degree murder and

second degree murder:

        Every murder perpet rated by [1] poison, [2] lying in wait, or [3] any other kind of
        willful, deliberate, malicious, and premeditated killing; or [4] committed in the
        perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or [5]


   5
    Hereinafter we refer to the crime of “murder of a victim under twelve” as “murder of a child” or
“child murder.”

                                                  6
       perpetrated from premeditated design unlawfully and maliciously to effect the death
       of any human being other than him who is killed, is murder in the first degree.

       Any other murder is murder in the second degree.

Section 14:30A(5)of the Louisiana Revised Statutes in pertinent part provides:

       A. First degree murder is the killing of a human being:

       ....

       (5) When the offender has specific intent to kill or to inflict great bodily harm upon
       a victim under the age of twelve or sixty-five years of age or older.

The varying definitions affect the degree of the crime and the level of punishment. “Murder of a

child” does not constitute a different act of murder omitted from the federal murder statute. That

Louisiana chose to define first degree murder regarding children differently than Congress defines it

does not automatically make murdering a child a different or even a more specific act.

       The government attempts to show that the state’s concern for child abuse prompted the

specific reference to “victims under t he age of twelve” in the first degree murder statute. We

conclude that the government exaggerates the significance of the inclusion of the child murder

provision in the Louisiana statute in order to piggyback the child abuse reasoning set forth in Brown

and Fesler. The Louisiana legislature placed child murder in the first degree murder statute to deter

crimes against these vulnerable members of society and to ensure that if a child is murdered the

offender is guaranteed to receive a certain sentence.6 This reasoning explains the placement of all

acts listed in the Louisiana first degree murder provision as well as the reasoning underlying the

enumerated crimes qualifying for first degree murder under the federal statute. The lists in both

statutes define what raises a particular homicide to the grade of first degree murder under the

respective systems. We reject the position taken by the government during oral argument that it used


   6
    Though not reflected in the murder statute, Congress addresses the vulnerability concern in the
sentencing guidelines. Section 3A1.1 of the Federal Sentencing guidelines allows a judge to increase
a defendant’s sentence by two levels when the victim was a child. Section 3A1.1 provides: “If the
defendant knew or should have known that a victim of the offense was unusually vulnerable due to
age . . . or that the victim was otherwise particularly susceptible to the criminal conduct, increase by
2 levels.”

                                                   7
the Louisiana statute to “further define” the federal law. Further defining would create a more

expansive definition of federal murder. Accordingly, to treat the murder of a child as conduct of a

different nature would impermissibly enlarge the scope of the federal statute, whi ch the Supreme

Court in Williams instructed that we cannot do. We cannot permit the government to create the

illusion of a “gap” in the law where none exists in order to enhance its ability to convict or to exact

a harsher penalty.

         Further, contrary to the government’s suggestion, public concern regarding child abuse does

not change the character of murder when a child is involved. The distinction we have recognized

between assault under the federal statute and child abuse cannot transfer by analogy to create a

tangible distinction between murdering an adult and murdering a child. Child abuse qualifies as a

separate class of conduct because the nature of the crime spawns methods and treatments not needed

in a general assault case. This is not necessarily true regarding the murder of a child. Children are

murdered in many ways unrelated to child abuse. For example, if a child is shot during a robbery on

a federal enclave, this conduct constitutes murder plain and simple, and this offense would not be

different in nature so as to warrant invocation of the ACA. It would be illogical to say that child

murders resulting from child abuse can be charged under the state statute pursuant to the ACA

whereas all other child murders must be prosecuted under the federal statute. We find that the

murder of a child is not a different degree of homicide that removes it from the federal murder

statute.7

         The government’s interpretation of Brown and the precise acts test goes too far. Its

interpretation would allow the wholesale incorporation of state law via the ACA. Neither Congress

nor the Supreme Court intended such a result. For ACA purposes, a precise act cannot qualify as a

“specific conduct of a different character” when the conduct is covered by a federal statute and when


     7
      Our decision might be different if the government were prosecuting the Lewises under a
Louisiana murder statute that expressly made criminal child murders resulting from child abuse. This
would make the precise act criminalized under the state statute qualify as being conduct of a different
nature or character.

                                                  8
the acts described in the federal and state statutes differ only in name, definition, or punishment.8 The

essential nature or theory of an act made criminal by a state statute must differ substantially from the

federal statute in order to elevate the conduct to a precise act.

        For example, “driving under the influence manslaughter” is conduct substantially different in

nature than general “manslaughter.” See United States v. Sasnett, 925 F.2d 392 (11th Cir. 1991).

The theory underlying DUI manslaughter is to remove the need to prove that the drinking caused an

accident. Id. at 396. The government need only prove that the defendant had a blood alcohol level

of .10 or higher. The court in Sasnett allowed application of the ACA because no federal statute

defined or prohibited this precise act. See also, United States v. Jones, 244 F. Supp. 181, 183

(S.D.N.Y. 1965) (allowing application of the ACA to prosecute using the “different theory” of

disorderly conduct under the state statute rather than the federal parading/picketing statute where the

defendants chained themselves to the court entrances to prevent entry or exit).

        Murder of a child as defined under the Louisiana first degree murder statute cannot clear the

“substantially different” hurdle. See Shirley v. United States, 554 F.2d 767, 768-69 (6th Cir. 1977)

(ACA inapplicable though armed robbery under the state statute was more specific and more harshly

punished than the federal robbery statute); and United States v. Big Crow, 523 F.2d 955, 958 (8th

Cir. 1975), cert. denied, 424 U.S. 920 (1976) (ACA inapplicable though the state statute prohibited

assault resulting in great bodily harm and provided a stiffer penalty than the federal assault statute).

   8
    We note in passing that the Sixth Circuit persuasively has identified four categories of cases that
arise under ACA cases: (1) all crimes criminal under the federal law are also criminal under state law,
but additional conduct is criminal under state law, (2) federal law encompasses a broader area than
the state law, but the state law carries harsher penalties or an easier burden of proof, (3) state and
federal laws overlap to a degree, but each occupies an area of law not covered by the other, and the
conduct at issue falls within the overlapped area, and (4) the laws overlap, as described in the third
group; however, the conduct falls within the area in which the act is criminal under the state law but
not the federal law. See United States v. Griffith, 864 F.2d 421, 423-24 (6th Cir. 1988). The district
court in the present case found that this case falls within the third category because murder of a child
could be punishable as federal murder, but the Louisiana statute presents a theory essentially different
from that federal statute by taking into account the compelling state interest in protecting children
under the age of twelve. We disagree. We find that this case falls within the second category. The
Lewises’ precise conduct is prohibited by the federal statute, but the penalty is harsher under the
Louisiana statute. Murder of a child carries an automatic penalty of life or death in Louisiana. As
explained above, the theories underlying the two statutes are not different.

                                                   9
Accordingly, we hold that the federal murder statute preempts the Louisiana first degree murder

statute because the precise act here, killing a human being, is punishable under the federal statute and

because the nature of the crime “murder of a child” does not differ substantially from the nature and

theory of murder in general. The government improperly invoked the ACA to charge the Lewises

under the Louisiana statute. The indictment contains an infirmity in that it references La. Rev. Stat.

§ 14:30A(5). We must determine whether the convictions and sentences can survive in spite of this

infirmity.

B.       REMEDY REGARDING FLAWED ASSIMILATION.

         The infirmity discussed above is not fatal to the indictment in this case. We find the infirmity

to be an apparent rather than a real defect. Accordingly, though we find error in the indictment, we

will uphold the Lewises’ convictions unless they establish reversible error on another ground. This

court has previously adopted the maxim that “[w]here the government wrongfully secures a

conviction under a state statute pursuant to the Assimilative Crimes Act, rather than under the

relevant federal statute, the appropriate remedy is not reversal of the conviction, but rather a vacating

of the sentence and a remand to the district court for resentencing[,]” provided that the basic

elements of the crime as defined in the federal statute were proven at trial and provided that no trial

errors warrant reversal of the convictions. See United States v. Olvera, 488 F.2d 607, 608 (5th Cir.

1973), cert. denied, 416 U.S. 917 (1974) (citing United States v. Chaussee, 536 F.2d 637, 644 (7th

Cir. 1976) (citing United States v. Word, 519 F.2d 612, 618 (8th Cir. 1975)). Compare United

States v. Butler, 541 F.2d 730, 737 (8th Cir. 1976) (the court discussed the applicable remedy of

remanding for sentencing, but instead vacated the convictions because the government did not prove

at trial the interstate commerce nexus, which was not an element of the state crime).9

         In Olvera, the government conceded on appeal that the federal statute was controlling rather

than the ACA and the Texas statute. 488 F.2d at 608. This court held that the “sentence must be


     9
   When discussing the conclusions reached in Chaussee, the district court below acknowledged the
quote regarding remand. United States v. Lewis, 848 F. Supp. 692, 695 n.3 (W.D. La. 1995).

                                                   10
vacated and the cause remanded for entry of a new judgment imposing sentence under the federal

statute.” The Ninth Circuit took a similar position in Hockenberry v. United States, 422 F.2d 171,

174 (9th Cir. 1970). In Hockenberry, although the government conceded that the existence of an

applicable act of Congress precluded assimilation of the California statute through the ACA, the

court refused to dismiss the indictment. The indictment stated a crime against the United States even

though the language of the California statute differed from the applicable federal statute. 422 F.2d

at 173-74. The court reasoned that rules 7(c) and 52(a) of the Federal Rules of Criminal Procedure

instruct that

        “error in the citation of the statute or its omission shall not be ground for dismissal of
        the indictment * * * or for reversal of a conviction if the error or omission did not
        mislead the defendant to his prejudice” and . . . “any error, defect, irregularity or
        variance which does not affect substantial rights shall be disregarded.”

Id. at 174 (internal brackets omitted). After noting that the defendant did not allege prejudice or

defects affecting substantial rights and then finding that the record would not support either claim,

the court rejected the argument that the court lacked jurisdiction to prosecute the defendant. The

Hockenberry court affirmed the defendant’s conviction but remanded the case for resentencing.10

          Likewise, we find that remand for reindictment and retrial is not required under the

circumstances of this case. The basic elements are the same for second degree murder under 18

U.S.C. § 1111(a) and first degree murder under La. Rev. Stat. § 14:30A(5). Both statutes require

proof of specific intent11 and the killing of a human being. Regarding intent, 18 U.S.C. § 1111

  10
    "It is well settled [in the ACA context] that an incorrect statutory reference in an indictment does
not require reversal where all of the essential elements of the correct statute are otherwise covered,
but that any sentence imposed in excess of that allowed under the correct statute must be vacated and
the case remanded for resentencing.” United States v. Walker, 557 F.2d 741, 746-47 (10th Cir.
1977). Several circuits that have wrestled wit h defective indictments containing erroneously
assimilated state law have reached the same conclusion. See , e.g., United States v. Hall, 979 F.2d
320, 323 (3d Cir. 1992); United States v. Lavender, 602 F.2d 639, 640-41 (4th Cir. 1979); United
States v. Chaussee, 536 F.2d 637, 644-45 (7th Cir. 1976); United States v. Word, 519 F.2d 612, 618-
19 (8th Cir.), cert. denied, 423 U.S. 934 (1975); United States v. Patmore, 475 F.2d 752, 753 (10th
Cir. 1973); Dunaway v. United States, 170 F.2d 11, 12-13 (10th Cir. 1948).
   11
      We reject Mrs. Lewis’s arguments that the federal murder statute requires proof of “intent to
kill.” She says that because she and her husband never intended to kill Jadasha they could not be
convicted of murder under the federal statute. This circuit has indicated that malice aforethought may

                                                   11
requires proof of “specific intent to inflict serious bodily injury,” and La. Rev. Stat. § 14:30A(5)

requires proof of “specific intent to inflict great bodily harm.” The dissimilar phrasing does not

destroy the compatibility existing between the statutes. This court has already acknowledged that

the intent element under the federal murder statute is comparable to the intent required under the

Louisiana murder statutes. See United States v. Tolliver, 61 F.3d 1189, 1221 (5th Cir. 1995),

vacated on other grounds, Sterling v. United States, 116 S. Ct. 900 (1996). In Tolliver, when

analyzing a sentencing issue, the court agreed with the district court that the Louisiana second degree

statute, under which the defendants were convicted, was most akin to the federal crime of first degree

murder.

        [T]he language of the guidelines instructs the court to compare the conduct, not the
        titles of the statutes cited. As pointed out by the district court, different states have
        different labels for the same crime,

                [t]herefore, depending upon which state murder statute is charged as
                the underlying offense of “premeditated murder or killing with specific
                intent,” inconsistent sentences for identical illegal conduct would be
                imposed in different states if the base offense level was computed
                merely by looking at the “label” of such statute and having that label
                be determinative of the most analogous federal offense, rather than
                looking at the actual substance of the underlying state statute to
                determine the most analogous federal offense.

The Tolliver court concluded that the district court had correctly compared the substance of the

underlying offense and correctly found that first degree murder was the most analogous federal

offense. Though labeled somewhat differently, “intent to inflict serious bodily injury” and “intent to

inflict great bodily harm” represent parallel intents for purposes of evaluating these murder statutes.



be inferred from circumstances which show a callous, wanton, or extremely indifferent disregard for
human life. United States v. Chagra, 807 F.2d 398, 402 (5th Cir. 1986), cert. denied, 484 U.S. 832
(1987) (after rejecting the defendant’s argument that the jury instruction, which did not demand proof
of an intent to kill but only demanded proof of reckless acts causing the death of another, was error,
the court noted that the instruction reflected the correct definition of malice); see also, Unites States
v. Harrelson, 766 F.2d 186, 189 n.5 (5th Cir.), cert. denied, 474 U.S. 908 (1985); and United States
v. McRae, 593 F.2d 700, 703 (5th Cir.), cert. denied, 444 U.S. 862 (1979). More importantly, this
court has specifically found that malice aforethought is equivalent to an intent do serious bodily
injury. Lara v. Parole Comm’n, 990 F.2d 839, 841 (5th Cir. 1993) (explaining the three distinct
mental states encompassed in malice aforethought: “(1) intent to kill; (2) intent to do serious bodily
injury; and (3) extreme recklessness and wanton disregard for human life” [emphasis added]).

                                                   12
Accordingly, the elements under the federal and Louisiana murder statutes are analogous enough for

us to conclude that the two statutes share the same essential elements.

        In the present case, the government proved the elements for federal murder at trial. The

district judge instructed the jury as follows:

        in order to convict either of the defendants of First Degree Murder, you must find:

        1. That said defendant killed Jadasha D. Lowery on or about December 20, 1993; and

        2. That said defendant acted with specific intent to kill or inflict great bodily harm. .
        ..

The jury’s finding that both Lewises were guilty of this crime indicates that the intent and death

elements were satisfied. Accordingly, the elements for second degree murder, which mirror the

elements contained in the jury charge, were proven below.

        Provided that we find below that the Lewises’ convictions are not reversible due to trial error,

remand for resentencing is not warranted in this case. Resentencing is only required where the district

court has imposed a sentence that exceeded the maximum sentence that the defendant would have

received if sentenced under the applicable federal statute. In Hockenberry, the court explained that

resentencing was necessary because the indictment could not support the ten-year sentence

Hockenberry received. 422 F.2d at 174. Though the maximum sentence under the California statute

was ten years, the maximum sentence available under the federal statute was only five years.

Accordingly, the court instructed the district court on remand to reduce the sentence to comport with

the federal penalty.

        In United States v. Hall, 979 F.2d 320, 323 (3d Cir. 1992), the Third Circuit refused to

remand for sentencing because “the sentence imposed on Hall was not higher than that which could

have been convicted under the CFR.” The CFR provided punishment consisting of a fine not

exceeding $500, or six months imprisonment, or both, plus costs. The district court sentenced Hall

to 45 days imprisonment and a fine of $300. The Hall court found no prejudice and no need for

remand.



                                                   13
       Here, the Lewises did not receive a sentence exceeding the maximum sentence allowed under

the federal murder statute. The United States Code makes second degree murder punishable by

imprisonment “for any term of years or for life.” 18 U.S.C. § 1111 (emphasis added). Mr. and Mrs.

Lewis both received life sentences. Unlike Hockenberry, the Lewises’ sentences are supported by

their joint indictment. Therefore, we need not remand for resentencing.

C.     CLAIMS OF TRIAL ERRORS.

       Our conclusions regarding the defective, but not fatal, indictment and the appropriate remedy

for the flawed assimilation do not end the discussion. We still must determine whether the

convictions can stand in the face of the other trial errors alleged by the defendants. After a thorough

review of the record, we find no reason to reverse the Lewises’ convictions. We will, however,

discuss the Lewises’ specific contentions of error below.

       1.      Sufficiency of the Evidence.

       Both Lewises claim that there was insufficient evidence to prove that they had specific intent

to kill or inflict great bodily harm on Jadasha. Mr. Lewis claims that there is overwhelming evidence

suggesting that Mrs. Lewis had a plausible motive (i.e., jealousy) to harm Jadasha and that she

delivered the murderous blows to Jadasha; whereas, the evidence merely places him on the premises

on the day of the murder. Mr. Lewis lists several witnesses who testified as to Mrs. Lewis’s jealousy

and abuse of Jadasha. Only Mrs. Lewis and her two daughters testified that Mr. Lewis hit Jadasha.

Not even they testified that he hit Jadasha on the head. Moreover, the pathologist testified that he

had to dissect Jadasha’s body to see the extent of the bruising, and that the visible marks cannot be

characterized as “great bodily harm.”

       Similarly, Mrs. Lewis admits to disciplining Jadasha, but denies that the discipline resulted in

significant injury. She points primarily to testimony of the pathologist in support of her insufficient

evidence claim. He testified that (1) the hemorrhages and bruises on Jadasha’s head would not have

been visible through her scalp and hair, (2) the deep bruises evident on the pre-autopsy and autopsy

photographs of Jadasha were not visible at the time she died and had to work their way to the surface


                                                  14
of her skin, (3) the body bruises might not be visible if Jadasha was wearing clothes, (4) there was

no evidence that the brain hematomas were directly related to the contusions found on Jadasha’s

scalp, and (5) the contusions and deep hemorrhages were caused by objects like an adult’s hand; one

would not expect a fly swatter or 3/8" diameter switch12 to inflict these injuries. Mrs. Lewis also

argues that none of the many witnesses called by the government or the defendants testified that they

saw Mrs. Lewis strike Jadasha or use unusual or excessively cruel discipline measures on her. She

further asserts that “even though [Jadasha] died, that is not in and of itself murder.”

          The standard for reviewing the sufficiency of the government’s evidence is whether a

reasonable trier of fact could have found that the evidence established the appellant’s guilt beyond

a reasonable doubt. United States v. Stedman, 69 F.3d 737, 739 (5th Cir. 1995); and United States

v. Ruggiero, 56 F.3d 647, 654 (5th Cir.), cert. denied, 116 S. Ct. 486 (1995). We must review the

evidence in the light favorable to the guilty verdict, that is, in the light most favorable to the

government. See United States v. Tannehill, 49 F.3d 1049, 1054 (5th Cir.), cert. denied, 116 S. Ct.

167 (1995). Further, we must consider all reasonable inferences arising from the evidence in the light

most favorable to the government. Id.

          Under Revised Statute 14:30A(5), the government had to prove that the Lewises killed

Jadasha with specific intent to kill or inflict great bodily harm upon a victim under the age of twelve.

Further, the government had to satisfy its burden of proving that the Lewises were guilty beyond a

reasonable doubt; proving only that the Lewises could be guilty is insufficient to satisfy this burden.

United States v. Sacerio, 952 F.2d 860, 863 (5th Cir. 1992). Because Jadasha’s age and death are

undisputed, we proceed to the issue of the defendants’ intent.

          We find that the record fully supports the defendants’ convictions. Their arguments ignore

the vast amount of circumstantial evidence which was sufficient to allow a jury to infer that they were

guilty of murdering Jadasha. In the defendants’ statements given contemporaneously with the

investigation into Jadasha’s death both admitted to beating Jadasha numerous times within the

   12
        A “switch” is a light branch from a tree or bush used to discipline by striking.

                                                    15
twenty-four hours preceding her death. Mr. Lewis shook Jadasha several times and hit her with his

hand or a fly swatter, while Mrs. Lewis hit her with a fly swatter, coat hanger, and switches. Further,

because they spent the day together, the Lewises were aware of the beatings administered by the

other that day. A military police officer testified that soon after learning that Jadasha was dead Mr.

Lewis told the military police officers “I shouldn’t have done it; I shouldn’t have spanked her like

that.” Other military police officers testified that Mrs. Lewis made spontaneous statements that “she

only had to whip [Jadasha] three times that day” and “she shouldn’t have hit the child. If the child

would be okay, then she would not punish her again.” In addition, both related a version of an

incident in which Mr. Lewis was beating Jadasha, she ran in her room or was instructed to go to her

room, and then Mrs. Lewis called her from the room, wherein Mr. Lewis beat Jadasha again. Further,

during the ride to the correctional facility Mr. Lewis was overheard asking investigator McCormick

how pleading guilty to a charge relating to homicide would affect his military career.

        Testimony from a paramedic, emergency personnel, a pediatrician, and a forensic pathologist

attested to outward signs that demonstrated the extent of Jadasha’s injuries. Testimony indicates that

flesh wounds on Jadasha “were still oozing blood” when she arrived in the emergency room. The

paramedic describes a mark on Jadasha’s forehead, a swollen lip, blood matted in her hair, blood on

the top of her left ear, skin missing from her left ear, and marks on her body from a fly swatter or a

coat hanger. The injuries on her body were consistent with an adult’s open hand, a fly swatter, a

hanger, and a curtain rod.

        The pediatrician’s testimony corroborated the testimony of the paramedic and emergency

room personnel. Additionally, he said that Jadasha’s abdomen was tense, indicating the possibility

of abdominal trauma. The cartilage appeared to be fractured in Jadasha’s left ear. Jadasha had

suffered multiple repeated trauma to her body. Moreover, the pediatrician agreed that the injuries

qualified as “great serious injuries.”

        Similarly, the forensic pathologist’s description of the crime scene showed that the blood of

the slaughter remained in the house. Several blood drops appeared all over the floor of the living


                                                  16
room and on the floor of Jadasha’s room. Blood was found on pieces of a curtain rod found

crumpled in the Lewises’ garbage can. Dried blood spots were visible on the sofa, on the window

curtail, on the closet doors in the hallway, in the master bedroom closet, and on walls. One blood

spot on the wall looked like a child’s smeared hand print. Blood appeared on articles of clothing and

blankets. In addition to the blood spots, the pathologist found several pieces of broken twigs in

Jadasha’s room, two unusually thick and bulky fly swatters, which he said “didn’t look like what you

would think a fly swatter would look like.” He also found a clump of hair that appeared to be pulled

out of the scalp.

       The forensic pathologist counted over two hundred injuries on Jadasha’s body caused by non-

accidental injury. He matched the shape of Jadasha’s injuries with the weapons the Lewises admitted

using to beat Jadasha. He also testified regarding the nature of the old and new wounds covering her

body. In great detail he described the raw sores, lacerations, and callouses evident on both sides of

Jadasha’s buttocks, which were caused from chronic, repetitive injuries. The pathologist testified that

(with the exception of some areas on the buttocks, the left ear, and scars from a hot liquid burn) the

injuries to Jadasha’s body were inflicted within twenty-four hours of her death because there was

“recent bleeding in the underlying tissue.” So much blood was redirected into the tissues underlying

the injuries that Jadasha’s circulatory system was missing one-third to two-third of the blood normally

found in the circulatory system. The pathologist explained that an adult’s hand, rather than the twigs,

coat hanger, or fly swatter, probably caused the deeper hemorrhages. He said the massive

hemorrhaging could have eventually caused Jadasha’s death; however, he said Jadasha died from

cerebral edema (brain swelling), caused by a blow to her head. The pathologist conservatively

counted nine head injuries, any one of which was sufficient to cause Jadasha’s death. He said that

the amount of force necessary to cause the brain to swell is equivalent to dropping a child on its head

from a height higher than three feet onto an uncarpeted floor. Further, the pathologist discussed

contusions on Jadasha’s forehead, on both cheeks, and over the bridge on her nose as well as




                                                  17
scratches and cuts in her face. He also said that several coat hanger type abrasions appeared in

Jadasha’s face.

       Neighbors and friends of the Lewises also attested to the history of abuse to which Jadasha

was subjected, primarily by Mrs. Lewis. Fo r example, Amber Nantz, who visited the Lewises

testified that she observed injuries on Jadasha on several occasions. When Mrs. Lewis explained in

Jadasha’s presence how a large black eye occurred, “Jadasha kind of had a funny expression on her

fac[e], a funny look on her face that she didn’t know what Debra was talking about.” Mrs. Nantz

also related that Mrs. Lewis withheld food from Jadasha for three days to teach her a lesson, and

during that time she would intentionally eat food in front of Jadasha to see if Jadasha would admit

to her hunger. Numerous other witnesses corroborated the signs of injury and abuse inflicted on

Jadasha. Another person witnessed Jadasha with a black eye. Several attested to seeing the burn on

Jadasha’s ear and hearing of the three days of starvation. Most indicated that Debra voluntarily

spoke of disciplining Jadasha, and they consistently indicated that the Lewises said they disciplined

Jadasha by spanking her with their hands or a fly swatter. A few remembered Debra stating that “if

she didn’t stop whipping Jadasha she would hurt her or kill her” and “she was going to let James whip

[Jadasha because] [s]he wasn’t going to go to jail for killing that child.” One witness testified that

when Mrs. Lewis discussed beating Jadasha, her demeanor demonstrated that Mrs. Lewis thought

the disciplining was funny. She also said Mrs. Lewis told her Jadasha had sores on her when she

came to live with the Lewises and it therefore was necessary to bathe her in bleach. Another witness

testified that she saw Mrs. Lewis strike Jadasha and burst her lip. At least one witness reported the

starvation incident to the sergeant, and a few suggested to the Lewises that they needed counseling.

       After viewing the evidence in favor of the government, we find the record abundant with

evidence to prove that the Lewises had specific intent to inflict great bodily harm upon Jadasha and

that they aided and abetted each other in the beatings. There was sufficient evidence regarding the

events of the day for the jury to conclude that the Lewises were aware that the other was beating

Jadasha and that they assisted each other in some capacity in the beatings. Mr. and Mrs. Lewis both


                                                 18
beat Jadasha repeatedly throughout the day of her death. There is no testimony that any other person

contributed to the beatings Jadasha endured the day of her death. Without question because of the

force accompanying their blows and the numerous beatings administered with that amount of force,

the Lewises intended to cause Jadasha serious bodily harm.

          The Lewises claim that they could not have known the effect of their blows because the deep

bruises did not surface until later. They also say that they could not have seen the bruises through

her clothes. We find this reasoning implausible and disingenuous. First, there was blood visible on

Jadasha, her clothes, the walls, floors, window curtain, and the instruments used to beat Jadasha.

Some of Jadasha’s injuries still oozed blood when she reached the emergency room. The jury could

infer that a blow from an adult to a forty-two pound four-year-old with enough force to draw blood

capable of leaving the trail described above comes with specific intent to inflict great bodily harm.

          Second, Jadasha had several old injuries on her body, especially on the cheeks of her buttocks.

The Lewises had proof that the force of their blows would produce injury to Jadasha. This proof did

not deter their beatings; instead, they administered many more blows of equal or greater force. We

find that the Lewises did not have to see the recently created bruises to know that their blows were

in fact causing serious internal injuries. Further, testimony revealed that the body blows would have

caused Jadasha’s death if the head injuries had not killed her. The jury could conclude t hat non-

accidental blows of this quantity and intensity on a forty-two pound four-year-old from an adult could

only come with the specific intent to inflict serious bodily harm on the child.13 Likewise, the jury

could find that blows from an adult to the abdomen of a child of this age and size came with like

intent.

          Finally, the Lewises struck Jadasha on the head and caused her brain to swell. Testimony from

the pathologist clarified the significance of this type of head injury. The jury reasonably could deduce



   13
     We are convinced that the Lewises would not have sought medical treatment and would have
treated the body bruises themselves with bleach and peroxide as they had treated Jadasha’s injuries
in the past.

                                                    19
that a non-accidental blow to a four-year-old’s head with force greater than a three-foot fall can only

come with specific intent to cause serious bodily harm.

       We conclude that there was more than enough evidence for a jury to find beyond a reasonable

doubt that Mr. and Mrs. Lewis possessed specific intent to inflict great bodily harm on Jadasha. We

reject the Lewises’ arguments that the evidence was insufficient; the evidence here allows more than

an inference that the defendants beat Jadasha mercilessly and repeatedly throughout the day on her

head and body, using far more force that would be acceptable to discipline a four-year-old child.

Thus, the Lewises’ convictions for first degree murder under Louisiana law could not be reversed on

this ground.

       2.      Admissibility of the Photographs.

       The Lewises argue that the prejudicial effect of the photographs outweighed their probative

value. Additionally, Mr. Lewis asserts that the autopsy photos, which were unusually gruesome and

inflammatory, were unfair because the dissections depicted the extent of the bruising, which he could

not have known prior to the autopsy.

       We review the admissibility of photographic evidence for abuse of discretion. United States

v. Follin, 979 F.2d 369, 375 (5th Cir. 1992). We find that the district court properly weighed the

probative value against the prejudicial effect when evaluating the admissibility of the photographs.

See Fed. R. Evid. 403. The court found the photos relevant to the issue of the defendants’ intent and

the issue regarding absence of accident. We agree that the photos are relevant for these reasons.

Grueso me photographs are relevant when they establish an element of the crime charged. United

States v. Bowers, 660 F.2d 527 (5th Cir. Unit B Sept. 1981); United States v. McRae, 593 F.2d 700,

707 (5th Cir.), cert. denied, 444 U.S. 862 (1979); and United States v. Kaiser, 545 F.2d 467, 476 (5th

Cir. 1977). We also agree with the government that under the facts of this case the photos were

relevant to counter claims that the Lewises’ employed normal disciplinary measures. The extensive

bruising divulges the excessive force behind the Lewises’ supposedly disciplinary blows. The photos

are the best means of conveying to the jury the force behind the blows.


                                                  20
         Furt her, we find that the potential prejudice was consciously minimized here. The district

court avoided duplication and limited the prejudicial effect of the photos by requiring the government

to reduce t he number of photos to be shown to the jury. Of the approximately 130 photos, the

government entered only 16 into evidence. In another child abuse case resulting in death, we

commented that the photos of the child’s lacerated heart

         had the potential to inflame the jury, but we consider it no more inflammatory than
         photographs that portray this sort of death suffered by the victim in this or any other
         case where the circumstances of the death are at issue. United States v. Kaiser, 545
         F.2d 467, 476 (5th Cir. 1977). The phot ograph, here, was essential to the
         government’s case if it was to meet its burden of showing that appellant brought cruel
         and excessive physical force to bear on her child.

Bowers, 660 F.2d at 529. Thus, the district court acted well within its discretion when allowing the

government to present the photos to the jury.

         3.     Admissibility of the Lewises’ Statements.

         The Lewises argue that the district court erred by overruling their objections to the adequacy

of the advice of rights given to them when they gave statements to investigators. Mr. Lewis asserts

that he was not informed that he had a right to a private attorney. Mrs. Lewis claims that she was

not advised of her rights until six hours after her initial detention at the hospital, that because of her

emotional state she could not comprehend the severity of the situation, that the length of time to give

the statement demonstrates the presence of coercion, that she believed the statement had to be given

before she could she her son and Jadasha’s body, and that she failed to understand the warnings

given.

         The Supreme Court in United States v. Miranda, 384 U.S. 436, 479 (1966) established the

warnings that a defendant must receive in order for his statement to be admissible at trial. The

defendant is free to waive the rights conveyed in the warnings if the waiver is done (1) voluntarily and

(2) knowingly and intelligently. United States v. Andrews, 22 F.3d 1328, 1337 (5th Cir.), cert.

denied, 115 S. Ct. 346 (1994).

         In the present case, the district court held a suppression hearing wherein he heard live

testimony from investigators and Mrs. Lewis regarding the warnings given to the defendants. The

                                                   21
testimony indicates that the Lewises each received a form containing the customary Miranda

warnings. The district court found that the military form given to Mr. Lewis adequately apprised him

of his rights and allowed him to knowingly waive his rights. Mrs. Lewis received the FBI Miranda

warnings form, which she initialed. Additionally, the district court questioned Mrs. Lewis regarding

her statements.14 The court concluded that Mrs. Lewis understood that she was waiving her rights

and voluntarily waived the rights after being adequately advised by an investigator. The district court

admitted the statements into evidence after making these determinations.

        The district court saw the live testimony and was in a position to factor body language into

its credibility determinations. Accordingly, with the exception of the voluntary issue, we must accept

the district court’s factual findings regarding the interrogations unless the findings are clearly

erroneous. United States v. Foy, 28 F.3d 464, 474 (5th Cir.), cert. denied, 115 S. Ct. 610 (1994).

We cannot say that these findings are clearly erroneous based upon the record before us.

        The issue of voluntariness is a legal question subject to de novo review. Andrews, 22 F.3d

at 1340 n.12. A waiver is voluntary when it is “the product of a free and deliberate choice rather than

intimidation, coercion, or deception.” Id. at 1337. Nothing in the record demonstrates that the

Lewises waived their rights because of intimidation, coercion, or deception. We cannot say that the

district court erred in denying the Lewises’ motions to suppress their statements.




        4.      The Battered Woman’s Syndrome Defense.

        Mrs. Lewis argues that she suffered from Battered Women’s Syndrome which diminished her

capacity to develop specific intent to kill of inflict great bodily harm on Jadasha or to aid and abet Mr.

Lewis to do the same. We concluded above that the government presented sufficient evidence to

allow the jury to find that Mrs. Lewis had specific intent to inflict great bodily harm on Jadasha. The


   14
    Mrs. Lewis actually gave two statements. Mrs. Lewis asked to give a second statement so that
she could correct inaccurate statements made in the first statement.

                                                   22
jury heard and evaluated the testimony regarding Battered Women’s Syndrome. The jury chose not

to believe that the Syndrome affected her ability to develop the intent necessary to commit murder.

We find no basis in the record to disturb the jury’s credibility choices. See United States v. Garcia,

86 F.3d 394, 398 (5th Cir. 1996) (noting that the appellate court must accept the credibility choices

supporting the verdict); and United States v. Straach, 987 F.2d 232, 237 (5th Cir. 1993) (noting that

the appellate court cannot weigh and assess the credibility of the witnesses).

       Based on our evaluations of the record, we find no merit to any of the Lewises’ evidentiary

claims of error. Therefore, we will not compel the government to waste time and resources

reindicting the Lewises, duplicating the trial, presenting the same sufficient evidence, and proving the

same elements where the jury has already spoken loudly, clearly, and correctly. The jury found the

Lewises guilty and, under the circumstances of this case, a new trial would not change this.




                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the convictions and sentences of James M. Lewis

and Debra Faye Lewis for murder of Jadasha D. Lowery even though the indictment erroneously

charged them with first degree murder under La. Rev. Stat. § 14:30A(5) pursuant to the Assimilative

Crimes Act rather than 18 U.S.C. § 1111.




                                                  23
