IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30036

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”). Several appeals later, 1

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.

United States Court of Appeals

Fifth Circuit

F I L E D

December 6, 2012

Lyle W. Cayce

Clerk

 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.

 A third co-conspirator, Damon Causey (“Causey”) was also involved.

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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. United 2

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

The jury found Causey guilty on the first two counts, but it was unable to reach a

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verdict as to him on the third count.

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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. In so doing, we relied upon our then- 3

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 appealfollowed.

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

Thereafter, Davis was sentenced to death. We affirmed his conviction and sentence. 3

United States v. Davis, 609 F.3d 663 (5th Cir. 2010) (Davis II).

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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 indictment for harmless error 4

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. We have little difficulty dispensing 5

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”),

Because of our analysis here, we need not determine the question left open in 4

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.” 

The second Robinson element is whether the defendant has had the benefit of 5

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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