United States v. Damon Causey, United States of America v. Paul Hardy, Also Known as P, Also Known as Cool and Len Davis

DeMOSS, Circuit Judge,

concurring in part and dissenting in part:

I wholeheartedly concur in the majority’s conclusion that the evidence was insufficient to establish the federal nexus required to support Davis’ and Hardy’s convictions on count 3, which alleges tampering with a witness in order to prevent communication with a federal law enforcement officer. I also concur with the majority’s determination that Davis’ and Hardy’s death sentences must be set aside and a new penalty hearing conducted because it is not possible to separate the jury’s death penalty determination as to the various counts in the indictment. Finally, I concur with the majority’s treatment of various other issues in parts 2, 5, 6 and 7 of the majority opinion.

I disagree, however, and therefore must dissent from the majority’s decision to affirm Davis’ and Hardy’s convictions on counts 1 and 2, which alleges conspiracy to deprive and deprivation of Kim Groves’ civil rights in violation of 18 U.S.C. § 241 and § 242, on the theory that those defen *424 dants’ actions against Groves constituted conduct under color of state law. I also dissent from the majority’s spartan and eonclusory treatment of Causey’s compelling argument that the trial of the noncapi-tal charges against him should have been severed from the trial of the capital charges against Davis and Hardy.

Murder Under “Color of Law”

Conduct under color of law, or its equivalent state action, is an essential element for conviction under 18 U.S.C. §§ 241 and 242, and provides the federal nexus required to turn a garden-variety state law murder into a federal offense punishable by the death penalty. The majority opinion impermissibly and inadvisably waters down this historical and statutory requirement by holding that state action existed in this case because an “air of official authority pervaded the entire incident.” This ethereal and poorly defined test subverts the color of law inquiry, traditionally rooted in some assertion of actual or apparent official authority, and transforms every abuse of official position into conduct attributable to the state.

As the majority concedes, the relevant principles are to be derived in large part from a trilogy of Supreme Court cases. In United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941), the Supreme Court addressed the color of law requirement under the statutory predecessors to §§ 241 and 242. Classic held that election officials who altered ballots were acting under color of law because the acts were committed in the course of their performance of official duties. Id. at 1042-43. The Court held that “[mjisuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.” Id. at 1043.

Four years later, in Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), the Supreme Court found action under color of law in another criminal case involving the predecessor to § 242. In Screws the defendants, a sheriff, a policeman, and a special deputy, beat a young man to death in the course of effecting an arrest. The Court found action under color of law because the officers were acting pursuant to their “duty under Georgia law to make the arrest effective.” Id. at 1038. The Court took special pains to note that the criminal statutes must be construed in a manner that “respect[s] the proper balance between the States and the federal government in law enforcement.” Id. at 1039.

Finally, in United States v. Price, 383 U.S. 787 , 86 S.Ct. 1152 , 16 L.Ed.2d 267 (1966), the Supreme Court directly examined the color of law requirement embedded in §§ 241 and 242. Price involved the brutal murder of three civil rights activists at the hands of a Mississippi sheriff, two other officers and some private citizens. The civil rights activists had been arrested and held prisoner in the county jail. Law enforcement authorities subsequently pretended to release the men in the middle of the night, having arranged that they would be ambushed on the road. The men were intercepted on the road out of town and taken to a remote place where at least eighteen people participated in their murder. The Court found action under color of law, observing that the conduct “was made possible by state detention and calculated release of the prisoners by an officer of the State.” Id. at 1157.

The Classic/Screws/Price trilogy illustrates the principle embraced by our Court that a defendant is not acting under “color of law” when he or she is “pursuing private aims and not acting by virtue of state authority.” Harris v. Rhodes, 94 F.3d 196, 197 (5th Cir.1996) (quoting United States v. Tarpley, 945 F.2d 806, 809 (5th Cir.1991)); see also Price, 86 S.Ct. at 1157 n. 7. The Court has held that such defendants are not acting under color of law “purely because they are state officers.” Harris, 94 F.3d at 197 (quoting Tarpley, 945 F.2d at 808 ). To the contrary, conduct is not *425 committed under color of law unless the conduct includes some assertion of actual or apparent authority granted by the state. See Price, 86 S.Ct. at 1157 ; Screws, 65 S.Ct. at 1039 ; Classic, 61 S.Ct. at 1042-43 ; see also Tarpley, 945 F.2d at 809 (“Tarpley did more than simply use his service weapon and identify himself as a police officer. At several points during his assault of Vestal, he claimed to have special authority for his actions by virtue of his official status.”).

That principle is aptly illustrated by the Supreme Court cases. In Classic , Louisiana election officials charged with altering and falsely counting ballots cast in a primary election were acting under color of law because the conduct was “committed in the course of their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election.” Classic, 61 S.Ct. at 1042-43 (internal quotations omitted). Thus, it is clear that the defendants in Classic committed the offense while in the course of performing their official duties. They abused that position by exceeding the scope of the authority granted by the state. But it was more than the mere abuse of their position that caused the Supreme Court to hold that the defendants’ conduct was committed under color of state law. The Court’s analysis placed equal emphasis on the fact that the defendants’ conduct would not have been possible but for the state’s grant of access to and authority over the election ballots that were fraudulently altered or falsely counted. Id. at 1043-44.

The majority relies heavily upon Davis’ use of his police pager, radio, and patrol car to facilitate the offense. But these items did no more than just that. There is nothing about these items that rendered the offense possible and nothing about the absence of these items that would have rendered the offense impossible. This is because both Davis’ malevolent plan to execute Groves and his conduct to set that plan in motion were separate and apart from his status as a police officer. Davis’ reliance upon the accouterments of his office, such as his use of the police radio to confirm Groves’ murder, were matters of convenience or expediency, rather than matters of necessity. I conclude that the conduct in this case presents nothing more than abuse of position, which Classic teaches is insufficient standing alone to establish conduct fairly attributable to the state as state action.

In Screws , Georgia law enforcement officials who beat a young man to death in the course of an arrest were acting under color of state law because they were acting pursuant to “their duty under Georgia law to make the arrest effective.” Screws, 65 S.Ct. at 1038 . The color of law inquiry in Screws , like Classic , focuses upon the fact that the defendants had embarked upon the execution of some official duty when the breach of public trust or authority occurred. Id. at 1039 (“Classic is, therefore, indistinguishable from this case so far as ‘under color of state law is concerned. In each officers of the State were performing official duties; in each the power which they were authorized to exercise was misused.”).

Applying Classic and Screws to the case at hand, it is clear that Davis had not been delegated any authority or discretion though official channels to vindicate his personal animus against Groves by killing her. Indeed, such conduct is affirmatively prohibited by state law. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 481-86 (5th Cir.1994) (en banc) (Garza, J., concurring in part and dissenting in part) (citing Barney v. City of New York, 193 U.S. 430 , 24 S.Ct. 502 , 48 L.Ed. 737 (1904) for proposition that “state action does not exist when the act complained of was not only not authorized, but was forbidden by state legislation” (internal quotations and alterations omitted)). Davis’ fortuitous and dispensable use of the equipment issued to him was simply an abuse of his position, *426 rather than abuse in the course of some official duty.

In Price , Mississippi law enforcement officers asserted their official capacity to first detain, and then arrange a calculated release of, their intended victims for the purpose of assaulting, and ultimately killing, their victims. Price, 86 S.Ct. at 1155 . Price , which creates the possibility that ordinary citizens may act in concert with state officials under color of state law, hinges upon the defendants’ assertion of actual or apparent authority to arrest the victims, a duty delegated to the relevant law enforcement authorities as a matter of state law. Id. at 1156-57. Although state officials pretended to relinquish control over the victims in Price , the defendants/law enforcement officers in that case never actually relinquished control, but instead delivered the victims unto a brutal demise at the hands of other law enforcement officers and their co-conspirators. Thus, Price embodies those principles inherent in Classic and Screws . The incident would not have been possible but for the defendants’ controlled release of their intended victims from official police custody, and the incident was the direct result of the defendants’ assertion of actual or apparent authority to arrest.

This case involves none of those factors. There is no but for relationship between Davis’ status as a police officer and Groves’ murder. Davis’ conduct was not committed in the course of any ordinary police duty. 1 Moreover, neither Davis nor any other defendant asserted any actual or apparent authority granted by the state as an initial or final justification for Groves’ murder. Applying the principles established in Classic, Screws and Price, 2 I find the theory that the defendants (a rogue police officer, a drug dealer, and the drug dealer’s side kick) were in this case engaged in state action under color of state law to be nothing short of ridiculous.

Our Circuit authority is consistent. In United States v. Tarpley, 945 F.2d 806 , 808 & n. 2 (5th Cir.1991) a jealous husband lured his wife’s lover, Vestal, to the defendant’s home. When Vestal arrived, Tarp-ley beat him with “sap gloves” filled with lead and stuck his service revolver into Vestal’s mouth, telling Vestal that “he was a Sergeant on the police department, and that he would and should Mil Vestal, and that he could get away with it because he was a cop.” Id. at 808 . Defendant continued beating Vestal and then instructed his wife to call another police officer to the house. When that officer arrived, the officer confirmed to Vestal that the defendant *427 had shot people in the past. Id. The Court found action under color of law, in large part because Tarpley had claimed to have special power by virtue of being a police officer to beat, or even kill Vestal, with impunity. Id. (Tarpley told Vestal: “I’ll kill you. I’m a cop. I can.”). Similarly, in Bennett v. Pippin, 74 F.3d 578, 589 (5th Cir.1996), an analogous § 1983 case, a sheriff raped a witness whom he had just interviewed. When his victim resisted his advances, the sheriff told her “I can do what I want, I’m the Sheriff.” Id. The Court found action under color of law because the Sheriffs actions were an abuse of power uniquely held by virtue of the Sheriffs position, and because “the explicit invocation of governmental authority constituted a ‘real nexus’ between the duties of Sheriff and the rape.” Id. (citing Taylor Indep. Sch. Dist., 15 F.3d at 452 n. 4). In sum, Supreme Court and Fifth Circuit precedent are consistent — when the defendant is acting pursuant to state granted authority or an assertion of state granted authority, but exceeds or abuses that authority, the defendant is acting under color of law.

For example, the conduct of a bad law enforcement officer in the process of arresting someone or interviewing a witness, or even, under current precedent, the misconduct of a public school teacher who places a child’s physical well being in grave danger, see Taylor Indep. Sch. Dist., 15 F.3d 443 , may constitute conduct under color of state law. 3 When, however, the defendant is acting in an area that is completely apart from and derives no “color” from the state’s affirmative grant of authority or discretion to the official, the conduct is not committed under “color of law.” Our decision in Tarpley is the only binding case that even potentially deviates from that pattern, and that case is distinguishable (and was distinguished by the panel hearing the case) by the defendant’s express invocation of his police authority.

Our error in diminishing the test for conduct under color of law is compounded in this case because the majority has borrowed, without apology, elaboration, or explanation, from the host of § 241 and § 242 cases that involve a relatively minor penalty. Title 18 U.S.C. § 241 and § 242 were passed to address the residual effects of slavery. For most of the significant history of these civil and criminal provisions, the maximum penalty to be assessed was a fine and a term of imprisonment not to exceed ten years. While Congress increased the potential penalty under these statutes in the 1960’s, it was not until September 1994 that the death penalty became an available sanction, and this case appears to be the first case in which the death penalty has been imposed upon defendants charged with a deprivation of civil rights in violation of these Civil War reconstruction statutes. Surely where the ultimate penalty of death is at issue, for the crime of murder which is traditionally punished under state law, we should be *428 even more diligent in requiring that the evidence clearly support the hypothesis that the offender’s conduct was colored by some grant of state authority. Surely we should not be willing to torture the meaning ascribed by the Supreme Court to the requirement that conduct be committed under color of state law by adopting, sheared of its factual context, a new legal standard requiring only that an air of official authority pervade the incident, particularly when that standard is based upon a single descriptive phrase in this Court’s disposition in Tarpley .

The facts of this case are chilling. Davis and Hardy deserve the death penalty for their part in the premeditated murder of Kim Groves. But we should not dilute or obscure the statutory requirement that conduct be committed under color of state law just to save these federal convictions. The Supreme Court has cautioned that statutes requiring conduct under color of law “should be construed so as to respect the proper balance between the States and the federal government in law enforcement.” Screws, 65 S.Ct. at 1039 . If this concept of federalism is to have any meaning at all, then the State of Louisiana is the proper governmental entity to proscribe and punish the murderers in this case. As the Supreme Court said in Screws :

Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States. As stated in United States v. Cruikshank, 92 U.S. 542, 553, 554 , 23 L.Ed. 588 [(1875)], “It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.” It is only state action of a “particular character” that is prohibited by the Fourteenth Amendment and against which the Amendment authorizes Congress to afford relief. Thus Congress in § 20 of the Criminal Code did not undertake to make all torts of state officials federal crimes. It brought within § 20 only specified acts done “under color” of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States.

Id. (internal citations omitted); see also id. at 1037. I would hold that the government failed to satisfy its burden of establishing a sufficient federal nexus with respect to counts 1 and 2 against all defendants. I would therefore vacate the defendants’ federal convictions for violation of 18 U.S.C. §§ 241 and 242 and remand the case to the district court for dismissal of the indictments. Under our federal system, the State of Louisiana is the only right and proper forum for the trial and punishment of these defendants.

CAUSEY’S TRIAL WITH CAPITAL DEFENDANTS

I also dissent from that portion of part 4 of the majority opinion that affirms the district court’s refusal to sever the trial of the noncapital charges against Causey from the trial of the capital charges against Davis and Hardy.

The majority applies what appears to be an almost per se rule that the trial of a capital defendant with a noncapital defendant will never raise concerns sufficient to justify severance. The majority supports this remarkable position with Buchanan v. Kentucky, 483 U.S. 402 , 107 S.Ct. 2906 , 97 L.Ed.2d 336 (1987). But Buchanan involved Supreme Court review of a state law conviction. Moreover, the Supreme Court made express note of the fact that the noncapital defendant did not seek severance in that case. Id. at 2909. Rather, Buchanan involved only a state prisoner’s constitutional claim that his joint trial with capital co-defendants violated his Sixth Amendment right to an impartial jury *429 drawn from a fair cross section of the community. Id. at 2908.

This case is easily distinguishable. First, this is a direct appeal from federal convictions. Indeed, this is the first reported decision in which a noncapital defendant was tried with multiple capital defendants in federal court under the procedures set forth in the Federal Death Penalty Act, 18 U.S.C. § 3591-3598 . Thus, no federal appellate court has ever considered, as a matter of direct appeal, whether the trial of a noncapital defendant with multiple capital defendants under the Federal Death Penalty Act may infringe upon the trial rights of the non-capital defendant. Further, the Federal Death Penalty Act, which specified a number of the procedures and substantive issues material to Davis’ and Hardy’s capital trial, was not passed until 1994, long after the decision in Buchanan , and only one month before the offense at issue in this case. Even if Buchanan is binding as to the relatively modest principle that the trial of noncapital defendants with capital defendants is not per se error, that principle does nothing to preclude the possibility of error based upon the statutory structure of the Federal Death Penalty Act or the facts of this case. I think our review should acknowledge and meet head on the particular issues raised by application of this new federal sentencing scheme with its many requirements, in this trial involving a noncapital defendant.

Second, Causey sought and was denied severance. Unlike the relatively limited issue in Buchanan , Causey’s challenge to his federal conviction on direct appeal calls into question whether he was prejudiced with respect to a number of his statutory and constitutional trial rights. Indeed, the record in this particular case establishes that many of the federal district court’s decisions in this matter, from jury selection through jury submission, were driven by the fact that both Davis and Hardy faced the death penalty. Because I believe that these decisions compromised Causey’s right to a fair trial, I would hold that the district court’s refusal to sever noncapital defendant Causey’s trial from the trial of capital defendants Davis and Hardy constituted an abuse of the court’s discretion on the facts of this case.

I recognize that there is a preference for jointly trying defendants who have been jointly named in the same indictment. See Zafiro v. United States, 506 U.S. 534 , 113 S.Ct. 933, 937 , 122 L.Ed.2d 317 (1993); see also Fed. R.Crim. P. 8(b). But severance is appropriate when a joint trial will compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about the guilt or innocence of one of the defendants. See Zafiro, 113 S.Ct. at 938 ; see also Fed. R.Crim. P. 14 (permitting severance when joint trial would prejudice a party). Cau-sey contends that his statutory and constitutional rights to a speedy trial, his right to participate fully and fairly in the jury selection process, and his right to be free from the effect of unduly prejudicial and irrelevant spillover evidence with no relevance to his prosecution, were violated in this particular case by the district court’s refusal to sever his trial. The majority opinion states, in a single conclusory sentence, that Causey failed to make the showing of strong prejudice required to justify severance. I disagree. To the contrary, this case is rife with the type of prejudice that should cause us to hold that a noncapital defendant like Causey should not be tried together with capital defendants in federal court.

Causey’s joint trial with capital co-defendants operated to deprive him of his statutory and constitutional right to a speedy trial. Title 18 U.S.C. § 3161 (c)(1) provides the general rule that trial should.occur within seventy days of indictment or arraignment. Causey was indicted and detained on the charges in this case in December 1994. Causey was not tried on those charges until April 1996, a delay of sixteen months. Three of the four contin *430 uances sought in Causey’s case were expressly tied to the fact that the government was seeking the death penalty against Davis and Hardy. The last two continuances, which together engendered a delay of four months, were granted over Causey’s express objection that his speedy trial rights were being compromised and that severance was required. While the speedy trial statute permits “a reasonable period of delay” attributable to co-defendants, see 18 U.S.C. § 3161 (h)(7), I do not consider the extended period attributable to Davis’ and Hardy’ capital status reasonable in this case. Whatever judicial expedience might justify the joint tidal of capital and noncapital defendants, that expedience is severely undermined when the capital status of one defendant causes a delay of more than one year in the trial of a non-capital defendant.

Causey’s joint trial with capital co-defendants compromised his right to participate fully and fairly in the selection of his jury. The district court initially allowed each side twenty-six peremptory challenges. Causey complained in the district court, and urges again on appeal, that his non-capital status was used, first by his co-defendants and then by the district court, to deny his right to participate equally in the jury selection process. "When Causey raised this complaint, Causey maintains, and the government does not dispute, that the district court informed him that, if forced to intervene, the district court would allow Causey only six peremptory challenges, while permitting each of his capital co-defendants ten peremptory challenges each. There does not appear to be any sound justification for limiting Cau-sey’s participation in the process of jury selection in this manner.

Causey’s joint trial with capital co-defendants also raises important questions about the fundamental fairness of subjecting a noncapital defendant to the process required to assemble a death qualified jury in a capital case. The process of selecting a jury in a capital case is, and should necessarily be, different from the process involved in selecting the jury in a noncapi-tal case. To the extent that the prosecution exercises its rights to qualify all jurors on their ability to assess the death penalty, there will inevitably be individuals excluded on those grounds in a capital case who would not have been excluded in a noncapi-tal case. Consequently, if you try a non-capital defendant with a capital defendant the government will be permitted to exclude jurors for cause on grounds which it could not use as a grounds for exclusion if the noncapital defendant was being tried separately. Surely if a noncapital defendant were being tried separately, the government could not exclude jurors for cause on the grounds of their opposition to the death penalty since that would be a matter completely irrelevant to the decision in that particular case. Likewise, in a joint trial involving capital and noncapital defendants, the capital defendants can exercise peremptory challenges against prospective jurors who express sentiments in favor of the death penalty. These same jurors may be acceptable, or even desirable, to a noncapital defendant for reasons other than their being prepared to assess the death penalty. The noncapital defendant, therefore, gets whipsawed between the state’s objection for cause and the capital defendant’s peremptory challenge into having a jury composed of individuals who are entirely different from those who would be selected if the noncapital defendant was being tried without capital defendants.

This is precisely what Causey says happened in this case. Given the capital charges against Davis and Hardy, the district court permitted the parties to circulate an extensive questionnaire to potential jurors prior to the time formal voir dire began. Those questionnaires provide a great deal of insight into the potential jurors’ views as to the death penalty and other issues. The record reflects that Causey objected both to government strikes eliminating potential jurors ex *431 pressing sentiment against the death penalty, as well as to his co-defendants’ strikes eliminating jurors expressing sentiment in favor of the death penalty. Causey asserts that many of these jurors would have been acceptable, or even desirable, to him. For example, Causey claims that some of the jurors eliminated by the government for expressing anti-death penalty sentiment also expressed a skepticism about government testimony induced by a plea bargain. Causey also claims that his co-defendants eliminated certain African-American jurors who were perceived to be leaning toward the death penalty. Viewed as whole, the record reflects that Causey’s right to participate fully and fairly in the jury selection process was compromised by the capital nature of the charges brought against Davis and Hardy.

Another problem that raises its ugly head is the contention that a death qualified or capital jury is necessarily more conviction prone. I recognize that several courts, including this one, have expressed reservations about the scientific evidence supporting the proposition that a death qualified jury is necessarily more conviction prone. See, e.g., Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758, 1762-64 , 90 L.Ed.2d 137 (1986); Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770, 1774-75 , 20 L.Ed.2d 776 (1968); Spinkellink v. Wainwright, 578 F.2d 582, 593 (5th Cir.1978). Without regard to the empirical basis for the scientific evidence, I believe that most trial judges (including the district court judge in this case who said as much in the hearing on Causey’s motion to sever) would be willing to acknowledge the common sense proposition that death qualified juries tend to be more conviction prone. The real question is whether that fact necessarily operates to prejudice a noncapital defendant and whether there are strong governmental interests supporting the empanelment of a death qualified jury for trial of a noncapital defendant. See, e.g., Buchanan, 107 S.Ct. at 2913-16 .

Courts have been hesitant to indulge such a presumption, for example, when to do so would require that trial courts empanel a different jury for the guilt and punishment phases of a capital trial. See Lockhart, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 . In such eases, the government has a strong interest in its legislation specifying a unitary jury system. See id. at 1769-69. Moreover, the possibility that a capital jury which heard the guilt phase of the trial will entertain a residual doubt as to the defendant’s guilt, which might serve to benefit the capital defendant during the penalty phase of the capital trial, is used to justify the premise that the use of a death qualified jury during the guilt phase of the capital trial may be beneficial to a capital defendant. Id. Obviously, that justification for rejecting the common sense proposition that death qualified juries are more likely to convict is not applicable when the issue is whether a noncapital defendant should be tried with co-defendants who face the death penalty. In the federal system a noncapital defendant will never face a separate jury determination of punishment.

The empanelment of a death qualified jury in a case involving a noncapital defendant, or at least a refusal to sever, may also be supported by the state’s interest in avoiding the burden and expense of two trials. Buchanan, 107 S.Ct. at 2915 ; Lockhart, 106 S.Ct. at 1769 . However, that rationale is inapplicable in this case because the district court expressly found that the evidence to be offered at the guilt phase of trial was such that the burden of trying Causey separate would be minimal. I conclude, therefore, that there were no important governmental interests to be vindicated and no potential benefit to Cau-sey to be obtained from trying the noncap-ital charges against him before the death qualified jury empaneled to hear the capital charges against Davis and Hardy.

Moreover, and without regard to whether death qualified juries are more conviction prone in the run of cases, my review *432 of this record persuades me that the need to death qualify the jury in this case resulted in a panel that was clearly prosecution oriented and that was much more likely to convict. Of the twelve jurors selected, ten described themselves in the jury questionnaire as “pro-death penalty.” Eleven of the twelve jurors agreed that the “death penalty gives the criminal what he deserves,” and disagreed that the death penalty was unfair to minorities. Ten of the twelve jurors stated that they disagreed or strongly disagreed with the statement that our system should err on the side of letting a few guilty people go free rather than on the side of convicting the innocent. All twelve jurors were comfortable with the use of undercover agents and informants and ten of the twelve jurors had no objection to the use of government wire taps. Of the five jurors that gave responses, four indicated they would have no concern about government testimony induced by lenient treatment. These last responses are particularly troubling given the role that government undercover operations and induced testimony played in this case, and Causey’s assertion that certain pro-death penalty jurors eliminated by his co-defendants displayed a healthy measure of skepticism about the relative weight of testimony procured by those means. Having reviewed this record, including the questionnaires submitted by the larger venire panel as compared to the jury selected, it is clear to me that the jury selection process necessitated by Davis’ and Hardy’s capital status led to the em-panelment of a strongly pro-government or conviction-prone jury. Given that Cau-sey was not exposed to the death penalty, I do not feel that whatever societal or governmental interests may weigh in favor of permitting a death qualified jury to hear the guilt portion of a capital trial should have been permitted to operate to his detriment in this case. Cf. Spinkellink, 578 F.2d at 593-94 (commenting upon the absence in that case of evidence that death qualification led to a more conviction prone or impartial jury).

I am also concerned that death qualification may, in some cases, operate to systematically exclude certain distinctive groups from jury service. See Lockhart, 106 S.Ct. at 1771 (Marshall, J., dissenting) (“The data strongly suggest that death qualification excludes a significantly large subset — at least 11% to 17% — of potential jurors who could be impartial during the guilt phase of trial. Among the members of this excludable class are a disproportionate number of blacks and women.” (footnote omitted)). In this case, three African-American defendants were tried in New Orleans, Louisiana, a community with a very large African-American population. The jury selection process used in this case makes it difficult to set exact numbers, but it is clear that the panel of potential jurors included a significant number of African-American citizens. Of the 151 prospective jurors who answered the questionnaire, at least 42 (or 28 percent) were African-American. And yet only one African-American was selected to sit on the jury during the trial. I do not posit that race may be used as a proxy for determining how a particular juror will vote, or whether a particular jury is impartial. I do contend that death qualification may have unintended and undesirable consequences, such as those identified by the dissenting Justices in Lockhart and Buchanan , and those identified by Causey in this appeal. Once again, to whatever extent those consequences might be tolerable when balanced against the government’s strong interest in empaneling a qualified jury as to capital charges, I would hold that such a consequence is intolerable and impermissible when applied to a case such as Causey’s, in which the government did not seek the death penalty, and in which the burden of separate trial would be minimal.

I recognize that Causey’s evidence that the death qualification procedure in this case had the effect of producing a conviction prone jury or excluding African-American jurors may not be sufficient *433 standing alone to establish a Sixth Amendment claim that he was deprived of an impartial jury drawn from a fair cross section of the community. But we are dealing here with the narrower issue of severance. In this case, evidence that the death qualification procedure excluded African-American citizens tends to establish another form of prejudice required to support his motion for severance.

Finally, Causey was also prejudiced by a large quantity of prejudicial spillover evidence relating to the criminal relationship between Davis and Hardy that had little, if any, bearing upon Causey’s case. Causey points, for example, to the prejudicial testimony of Davis’ police partner, Sammie Williams, and of unindicted co-conspirator Steve Jackson, both of whom testified they had only very limited knowledge concerning Causey. Moreover, there was an amazing volume of evidence documenting the grisly details of the Davis/Hardy relationship and their brutal and mercenary crimes that had only tangential, if any, relevance to Causey.

There is also evidence in the record that the district court’s evidentiary rulings were guided by considerations relevant to Davis’ and Hardy’s capital status and without any consideration of Causey’s position or interest. For example, Causey objected to certain prejudicial evidence relating to the meaning of the phrase “rock-a-bye-baby.” Causey’s co-defendants desired to enter a stipulation as to the meaning of that phrase, to which Causey objected. At a hearing in which that stipulation was entered over Causey’s objection, the following exchange occurred:

Counsel for Causey: Yesterday the proposed stipulation about this roek-a-bye-baby came up. Nobody asked me, which is par for the course.

District Court: That’s because your client is not facing the death penalty.

This example, in which the district court expressly invoked Davis’ and Hardy’s capital status as a basis for providing notice of certain evidentiary decisions illustrates the extent to which those defendants’ capital status infused the entire trial and caused a subjugation of Causey’s rights to those of the capital defendants.

For the foregoing reasons, I would hold that the district court’s refusal to grant Causey a separate trial constituted • an abuse of discretion on the facts of this case. I think the majority opinion fails to grapple with the vexatious issues arising from the trial of a noncapital defendant such as Causey, who played a relatively minor role in the conspiracy, with capital defendants such as Davis and Hardy, against whom the government offered an impressive quantity of evidence relating to larger criminal enterprises in which defendant Causey had no role. I respectfully dissent from that portion of the majority’s decision affirming the district court’s denial of Causey’s motion to sever his trial from that of his co-defendants Davis and Hardy.

. The majority finds great significance in Davis' statement that he could get Hardy to murder Groves and then handle the "thirty.” But Davis' speculation to his partner was never borne out. Davis did not, in fact, handle the "thirty,” and there is no evidence in the record that he in fact would have had any authority to do so.

. Both the majority and concurring opinions purport to rely upon Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961) as breaking new ground for purposes of determining when conduct is committed under col- or of law. But Monroe does not purport to adopt any new standards relevant to the inquiry. To the contrary, Monroe merely reaffirms the principles previously announced in Classic and Screws. See Monroe, 81 S.Ct. at 484 ("We conclude that the meaning given 'color of’ law in the Classic case and in the Screws and Williams case was the correct one; and we adhere to it.”); see also Williams v. United States, 341 U.S. 97 , 71 S.Ct. 576, 577 , 95 L.Ed. 774 (1951) ("The question in this case is whether a special police officer who in his official capacity subjects a person suspected of crime to force and violence in order to obtain a confession may be prosecuted” for conduct under color of law.); id. at 578 (noting that the victim was interrogated pursuant to "an investigation conducted under the aegis of the State”); id. (noting that the defendant "had a semblance of policeman's power from Florida ... [;] acted under authority of Florida law; and ... was asserting the authority granted him and not acting in the role of a private person”). Monroe , which presented the question of whether police exceeded their authority in the scope of an official investigation, cannot faithfully be cited as extending or broadening the color of law concept as defined in earlier Supreme Court cases.

. Whatever color of law there is in this case must be derived from the conduct of Davis, the New Orleans police officer. It is true that even a patrolman at the bottom of the police totem pole, like Davis in this case, may exercise certain powers and duties which are derivative of his authority as a police officer and the exercise of these powers is clearly under "color of law." A patrolman may enforce the traffic laws of the city and issue a ticket or citation to a citizen whom he observes in violation of such laws; but Davis never issued any kind of citation or ticket to Groves in this case. A patrolman may make an investigative stop of a citizen if he has a reasonable suspicion that the citizen may be engaging in some sort of criminal activity; but Davis never made an investigative stop of Groves in this case. A patrolman may serve and execute a warrant for arrest upon a citizen; but Davis never executed any warrant for arrest on Groves in this case. A patrolman may arrest without a warrant and take into custody any citizen whom he observes to be committing a crime; but Davis never purported to arrest Groves and never had any custody of any kind of Groves. A patrolman may direct traffic, order individual citizens to stay behind police barricades at an accident or crime scene, and order individual citizens to leave or vacate certain premises on the grounds of public safety; but there is no evidence in this case that Davis ever exercised any such authority as to Groves.