                    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this opinion should not be published and is not precedent except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.

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