### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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

r o l e as the shooter in a plot to prevent a witness, Kim Groves (“Groves”), fro m 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. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 6 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this opinio n shoul d not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4.

A t hirdc o-c ons pir ator , Da mo n Caus ey ( “Caus ey”) w as als o i nvolved

. 1 Case: 12-30036 Document: 00512075279 Page: 1 Date Filed: 12/06/2012No. 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 t h ereafter. Hardy, Davis, and Causey were charged with three federal counts in a thir d 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 c ivil 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 f e d e r al 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 co nv i c t i o n s on the first two counts, but vacated them on the third count as to Hardy an d D avi s
. 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 t o s u pport 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 a n d 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 fou nd Cause y guilty on the fir s t tw o count s, but it wa s unable to reac h a 2 verd ictas t o h imont he thir d count

. 2 Case: 12-30036 Document: 00512075279 Page: 2 Date Filed: 12/06/2012No. 12-30036

harmless because the Government had given pre-trial notice of its intent to seek t h e d eath penalty and provided a detailed list of the aggravating factors o n 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. 200 4). On the subsequent remand, the district court did not co n d u c t the contemplated new jury trial on the death penalty because it found after an Atkins he a ring that Hardy could not receive the death sentence due to his mental retardation. T h e d i s trict court then sentenced him to the advisory guidelines-recommended term of lif e i m p ri s o n m e nt

. Thi s ti m e ly ap p e al f o ll o w e d. II. Discussion On appeal, Hardy again challenges the indictment, contending that it was insuffici e n t 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 la w 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 a n y a u t h ority 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 argume n t , b u t 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

There aft er, Da vis wa s se nten ced to dea th. We aff irm ed his convic tio n and se nten ce. 3 Uni ted Sta tes v. D av is , 609 F.3d663 ( 5th Cir. 201 0) (Da vi s II ). 3 Case: 12-30036 Document: 00512075279 Page: 3 Date Filed: 12/06/2012No. 12-30036

d o is cite to intervening binding precedent from the United States S u p r e m e Court or our en banc court or some applicable change in t h e s t a t u tory law, as required by o u r r u le of orderliness. See Jacobs v. Nat’l Drug Intelligence Ctr. , 548 F.3d 375, 378 (5th Cir. 2008). Under Robinson , we analyze a def e c tive indictment for harmless error 4

un d er 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 d i d i n Da v is 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 jur y w o u l d have done by looking at the actual evidence pr e s e n t e d 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”),

Becaus e of o u r a n a l y s i s here , we need not det erm ine the ques tio n lef t ope n in 4 Da vi s I —w heth er the indi ctm ent err or allege d is inde ed cons tit utio nal err or wh en the cas e is not a dea th pen alty cas e. See380 F.3d 821. Add itio nally, we neednot dec idewhet her the re act ually wa s an err or in the indi ctm ent and wh ethe r Ha rd y ade quate ly brie fed this poi nt. We als o need not dec ide wh ethe r Ha rdy wa ived this po i n t by fai ling to cro ss -ap pea l dur ing the 2003 app eal that res ulte d in Da vi s I

. We sim ply note that only in pas si n g d o e s H a r d y st ate wh at he clai ms is wr ong wi th the indi ctm ent: that it fai led to cont ain an “all egatio n that dea th
res ulte d fr om the acts com mi tte d in violat ion of the per tine nt st atut e” and “th at def enda nts inte nded that a dea th res ult fr om act s com mit ted in violat ion of the st atut e.” We obs erve that the indi ctm ent char ged Ha rd y wi th cons pir ing to dep rive Gr oves of cons tit utio nal right s, that “p art

. . . of the pur pos e of this cons pir acy [w as] that

. . . Gr oves wo uld be ki lled , and that Ha rd y “ sho t

. . . Gr oves int he headw ith a 9 mm f irea rm , wh ich res ulte d in her dea th. ”
The se cond Robi nson elem ent is wh ethe r the def enda nt has had the benef it of 5 inte rp os ing the publ ic in the cha rging dec isi on suc h that a def enda nt doe s notstandtrial on the pr os ecut or’ s char ge al one. 367 F. 3d at 287. In tur n, this que st ion is ass es se d by lo ok ing at wh ethe r no rat ional grand jury wo uld fai l to indi ct upon the evide nce for t h e c h arges cor rec tly st ated

. Id. at288

. 4 Case: 12-30036 Document: 00512075279 Page: 4 Date Filed: 12/06/2012No. 12-30036

and we must do so here as well. See United States v. Dentler , 492 F.3d 306, 311 (5th Cir. 2007). There was am p l e e v i d e nce 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.

5 Case: 12-30036 Document: 00512075279 Page: 5 Date Filed: 12/06/2012