     Case: 12-30036        Document: 00512075279        Page: 1     Date Filed: 12/06/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 6, 2012

                                       No. 12-30036                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

PAUL HARDY,

                                                  Defendant - Appellant



                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:94-CR-381-2


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
       Sixteen years ago, Paul Hardy (“Hardy”) was tried and convicted for his
role as the shooter in a plot to prevent a witness, Kim Groves (“Groves”), from
testifying against then-police officer Len Davis (“Davis”).1 Several appeals later,
Hardy challenges his conviction and sentence of life imprisonment, after having
been found ineligible for the death penalty pursuant to Atkins v. Virginia, 536
U.S. 304 (2002). We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
           A third co-conspirator, Damon Causey (“Causey”) was also involved.
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                                     No. 12-30036

                              I. Facts and Background
       The facts of this case and its procedural history to that point are described
in detail in our prior opinion in one of the several appeals by Davis and Hardy.
United States v. Davis, 380 F.3d 821 (5th Cir. 2004) (Davis I). We thus provide
only those facts and the procedural history necessary to understand the discrete
issues here presented.
       Groves was a witness to police brutality by Davis. Davis solicited Hardy
and Causey to obtain Groves’s silence by killing her. Ultimately, Hardy shot
Groves, who died shortly thereafter. Hardy, Davis, and Causey were charged
with three federal counts in a third superceding indictment: conspiring to violate
Groves’s civil rights by use of excessive force resulting in death (18 U.S.C. § 241);
violating Groves’s civil rights by use of excessive force by shooting her with a
firearm resulting in death (18 U.S.C. §§ 2, 242); and willfully killing Groves to
prevent her communication regarding a possible federal crime (18 U.S.C. §
1512(a)(1)(C), (a)(2)). Hardy and Davis were convicted of all three counts and
sentenced to death. On appeal, we affirmed the convictions on the first two
counts, but vacated them on the third count as to Hardy and Davis.2 United
States v. Causey, 185 F.3d 407, 410 (5th Cir. 1999). We thus remanded for
resentencing.
       On remand, Hardy and Davis argued for the first time that the indictment
was insufficient to support the death penalty because it lacked certain
aggravating statutory factors. The district court agreed and concluded that the
death penalty was unavailable against both Hardy and Davis, although it
concluded that the indictment would support the sentence of life imprisonment.
The Government appealed. We vacated the district court’s order, concluding
that the indictment deficiencies were constitutional error but that the error was

      2
         The jury found Causey guilty on the first two counts, but it was unable to reach a
verdict as to him on the third count.

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                                     No. 12-30036

harmless because the Government had given pre-trial notice of its intent to seek
the death penalty and provided a detailed list of the aggravating factors on
which it relied. Davis I, 380 F.3d at 829.3 In so doing, we relied upon our then-
recent case of United States v. Robinson, 367 F.3d 278, 285 (5th Cir. 2004).
      On the subsequent remand, the district court did not conduct the
contemplated new jury trial on the death penalty because it found after an
Atkins hearing that Hardy could not receive the death sentence due to his
mental retardation. The district court then sentenced him to the advisory
guidelines-recommended term of life imprisonment. This timely appeal followed.
                                    II. Discussion
      On appeal, Hardy again challenges the indictment, contending that it was
insufficient to support the elements of the offense that would support life
imprisonment. In Davis II, Davis advanced similar arguments in support of his
attack on the indictment. We concluded that the law of the case doctrine
foreclosed his attack on the indictment. 609 F.3d at 693.
      We similarly conclude that Hardy’s challenge to the indictment is barred
by Davis I. Hardy argues that Davis I held only that the indictment errors did
not prevent imposition of the death penalty, not life imprisonment. This is a
puzzling argument to say the least, and he fails to cite any authority for the
proposition that harmless error for imposition of the death penalty can suddenly
become reversible error for a lesser sanction.
      Even if we were to determine that Davis I does not bind us, we are bound
by the analysis in Robinson.          Hardy essentially concedes that Robinson
forecloses his argument, but he argues that Robinson was wrongly decided,
citing precedent from other circuits and a dissenting opinion from Justice Scalia
in United States v. Resendiz-Ponce, 549 U.S. 102, 116 (2007). What he does not

      3
        Thereafter, Davis was sentenced to death. We affirmed his conviction and sentence.
United States v. Davis, 609 F.3d 663 (5th Cir. 2010) (Davis II).

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                                       No. 12-30036

do is cite to intervening binding precedent from the United States Supreme
Court or our en banc court or some applicable change in the statutory law, as
required by our rule of orderliness. See Jacobs v. Nat’l Drug Intelligence Ctr.,
548 F.3d 375, 378 (5th Cir. 2008).
       Under Robinson, we analyze a defective indictment4 for harmless error
under a two-part test: (1) whether the defendant had notice of the charges
sufficient to prepare a defense; and (2) whether a grand jury would have indicted
using the proper elements. 367 F.3d at 287.5 We have little difficulty dispensing
with the former prong, as we did in Davis I, since the Government’s pre-trial
notice gave adequate notice of the allegations against Hardy (and he has never
contended otherwise). As far as the latter prong, Hardy argues that we must
analyze the question of what a reasonable grand jury would have done by
looking at the actual evidence presented to the grand jury, not the available
evidence that could have been presented. He concedes that Robinson looked at
the evidence that “would have been available,” see 367 F.3d at 288-89 (using the
petit jury’s findings as “persuasive evidence of how a grand jury would find”),



       4
            Because of our analysis here, we need not determine the question left open in
Davis I—whether the indictment error alleged is indeed constitutional error when the case is
not a death penalty case. See 380 F.3d 821. Additionally, we need not decide whether there
actually was an error in the indictment and whether Hardy adequately briefed this point. We
also need not decide whether Hardy waived this point by failing to cross-appeal during the
2003 appeal that resulted in Davis I. We simply note that only in passing does Hardy state
what he claims is wrong with the indictment: that it failed to contain an “allegation that death
resulted from the acts committed in violation of the pertinent statute” and “that defendants
intended that a death result from acts committed in violation of the statute.” We observe that
the indictment charged Hardy with conspiring to deprive Groves of constitutional rights, that
“part . . . of the purpose of this conspiracy [was] that . . . Groves would be killed, and that
Hardy “shot . . . Groves in the head with a 9 mm firearm, which resulted in her death.”
       5
          The second Robinson element is whether the defendant has had the benefit of
interposing the public in the charging decision such that a defendant does not stand trial on
the prosecutor’s charge alone. 367 F.3d at 287. In turn, this question is assessed by looking
at whether no rational grand jury would fail to indict upon the evidence for the charges
correctly stated. Id. at 288.

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and we must do so here as well. See United States v. Dentler, 492 F.3d 306, 311
(5th Cir. 2007).     There was ample evidence to support Hardy’s intent to
kill—indeed, he was the triggerman who stalked Groves before fatally shooting
her—as well as the other factors that support the higher statutory maximum of
life imprisonment.
      AFFIRMED.




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