Opposition Brief — Lewis v. United States

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ee Nos. 96-7151 and 96-7726 MAR 28 1997

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aS CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

DEBRA FAYE LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

JAMES M. LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA .

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER

Acti Solicit e }

JOHN C. KEENEY

Acting Assistant Attorney General

DEMETRA LAMBROS

QUESTION PRESENTED

Whether petitioners were properly charged,

convicted,

and

sentenced for the murder of their four-year old daughter under the

Assimilative Crimes Act, 18 U.S.C. 13, and the Louisiana child

murder statute, 14 La. Rev. Stat. Ann. § 30A(5).

(I)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-7151

DEBRA FAYE LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 96-7726

JAMES M. LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-28)' is

reported at 92 F.3d 1371. The opinion of the district court

denying petitioners’ pretrial motions to dismiss the indictment is

reported at 848 F. Supp. 692.

* "Pet. App.” refers to the appendix to the petition in No.

96-7151.

“™

2

JURISDICTION

The judgment of the court of appeals was entered on August 19,

1996. Petitions for rehearing were denied on September 16, 1996

(Pet. App. B) and October 30, 1996 (96-7726 Pet. App. B). The

petition for a writ of certiorari in No. 96-7151 was filed on

December 16, 1996. The petition for a writ of certiorari in No.

96-7726 was filed on January 28, 1997. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for

the Western District of Louisiana, petitioners James M: Lewis and

Debra Faye Lewis were convicted of first degree murder of Jadasha

D. Lowery, in violation of 14 La. Rev. Stat. Ann. § 30A(5), and

pursuant to the Assimilative Crimes Act, 18 U.S.C. 13, 7, and 2.

Petitioners were sentenced to life imprisonment. The court of

appeals affirmed the convictions and sentences. Pet. App. 1-28.

1. Jadasha Lowery was the four-year-old -daughter of

petitioner James Lewis. Petitioner Debra Lewis was her stepmother.

Her death occurred in the family’s home at Fort Polk, a United

States military reservation, where petitioner James Lewis was

stationed with the U.S. Army. Pet. App. 2.

Jadasha was killed at the hands of petitioners on December 20,

1993, as the result of repeated and severe beatings. The forensic

pathologist who examined Jadasha counted over two hundred injuries

on her body. Jadasha received most of those injuries within 24

hours of her death, although raw sores, lacerations and callouses

3

on her body evidenced chronic and repetitive injuries. Pet. App.

2, 21.

Petitioners admitted that they had beaten Jadasha numerous

times within the 24-hour period before her death. Petitioner James

Lewis shook the little girl and beat her with his hand or a fly

Swatter. Petitioner Debra Lewis beat Jadasha with a fly swatter,

hit her across the face with a coat hanger, and also used switches

to whip the child. Because the three spent the day of Jadasha’s

death together, each petitioner was aware of the beatings

administered by the other. Indeed, once during the day, the little

girl ran into her room following a beating by James Lewis -- only

to have Debra Lewis summon her again for another round of beatings

by her father. Pet. App. 19.

Investigators at the crime scene found blood throughout the

house: on the floor of the living room, on the floor in Jadasha’s

room, on the sofa, window curtair, closet doors in the hallway,

master bedroom closet, on the walls, on clothing, on blankets.

Blood was found on pieces of a curtain rod found crumpled in the

Lewises’' garbage can. One blood spot on the wall looked like a

child’s smeared hand print. Pet. App. 20.

The pathologist testified that Jadasha had died of a cerebral

edema -- a swelling of the brain that ultimately causes respiratory

functions to cease -- caused by a blow to the head. He

conservatively counted nine head injuries, any one of which was

sufficient to cause death. He testified that such a blow was the

equivalent of dropping a child on her head from more than three

feet onto an uncarpeted floor. Pet. App. 2, 21. Jadasha also

suffered massive hemorrhaging, losing one- to two-thirds of her

entire blood volume from her circulatory system, which was

redirected into the tissues underlying her injuries. The

pathologist testified that the hemorrhaging could have eventually

caused the girl’s death if the head injuries had not killed her

first. Id. at 21.

Neighbors and friends attested to a history of child abuse by

petitioners. One had observed injuries on Jadasha on several

occasions, including a large black eye and burst lip. Another told

of how petitioner Debra Lewis withheld food from Jadasha for three

days, and how she bathed the little girl in bleach. Others

corroborated signs of injury and abuse, including a burn on

Jadasha’s ear caused by hot liquid. A few remembered hearing

petitioner Debra Lewis state that "if she didn’t stop whipping

Jadasha she would hurt her or kill her," and that “she was going to

let James whip [Jadasha because) [s)he wasn’t going to go to jail

for killing that child." Pet. App. 21-22.

2. The indictment charged petitioners with first degree

murder under Louisiana law’ pursuant to the Assimilative Crimes Act

* The Louisiana first degree murder statute provides, in

pertinent part:

A. First Degree Murder is the killing of a human being:

e . e e _

(S) When the offender has the specific intent to kill or to

ro so great bodily harm upon a victim under the age of

twelve.

14 La. Rev. Stat. Ann. § 30A(5). The Louisiana statute provides

for a mandatory sentence of life imprisonment “if the government

5

(ACA or Act).* Before trial, petitioners filed motions to dismiss

the indictment. They argued that the federal murder statute, 18

U.S.C. 1111, provides for the specific crime of first degree

murder, and that the assimilation of the Louisiana murder statute

under the Assimilative Crimes Act was therefore improper.‘ 96-7726

Pet. 3-4; Debra Lewis C.A. Record Excerpts q 5.

The district court denied the motions, holding that

petitioners were properly charged under the Louisiana statute,

which classifies as first degree murder the killing of a victim

does not seek the death penalty. 14 La. Rev. Stat. Ann. § 30C.

> The Assimilative Crimes Act provides in pertinent part:

(a) Whoever within or upon any of the places now existing

or hereafter reserved or acquired as provided in section 7 of

this title, is guilty of any act or omission which, although

not made punishable by any enactment of Congress, would be

punishable if committed or omitted within the jurisdiction of

the State, Territory, Possession, or District in which such

place is situated, by the laws thereof in force at the time of

such act or omission, shall be guilty of a like offense and

subject to a like punishment.

18 U.S.C. 13. The Act applies within the “special maritime and

territorial jurisdiction of the United States," as defined by 18

U.S.C. 7. That area includes, inter alia, "[a]ny lands reserved or

acquired for the use of the United States * * * for the erection of

a fort, magazine, arsenal, dockyard, or other needful building."

18 U.S.C. 7(4).

* The federal murder statute provides, in pertinent part:

(a) Murder is the unlawful killing of a human being with

malice aforethought. Every murder perpetrated by poison,

lying in wait, or any other kind of willful, deliberate,

malicious, and premeditated killing * * * is murder in the

first degree.

Any other murder is murder in the second degree.

18 U.S.C. 1llll(a). Like the Assimilative Crimes Act, the federal

murder statute applies "“(w)ithin the special maritime and

territorial jurisdiction of the United States." 18 U.S.C. 1111(b).

6

under the age of 12 when committed with specific intent to kill or

to inflict great bodily harm. United States v. Lewis, 848 F. Supp.

692, 695 (W.D. La. 1994); see note 2, supra. The court concluded

that although the federal murder statute encompasses all murders,

the “precise act" prohibited under Louisiana law -- the murder of

a child under 12 -- is not murder in the first degree under federal

law. Ibid. The Louisiana statute, the court explained, aims

specifically to deter child abuse, a purpose not addressed by its

federal counterpart. JIbid.

3. Following their convictions, petitioners were sentenced to

life imprisonment under the federal Sentencing Guidelines. Pet.

App. C. They were each assigned a base offense level of 43,

pursuant to the Guideline for first degree murder, § 2Al.1. Both

were given two additional points under Guidelines § 3Al1.1

(vulnerable victim), for a final offense level of 45. Both were

placed in Criminal History Category I. The resulting Guidelines

sentence for each petitioner was life imprisonment. Debra Lewis

Presentence Report (PSR) at 14-15; James Lewis PSR at 14-15. The

district court sentenced each petitioner to life imprisonment.

Pet. App. 3.

4. The court of appeals affirmed petitioners’ convictions and

sentences. Pet. App. 1-28.

The court of appeals first held that petitioners should have

been charged under the federal murder statute rather than the

Louisiana murder statute and the Assimilative Crimes Act. The

court asserted that the Assimilative Crimes Act "fills in gaps

7

existing in federal statutes regarding criminal law," but that

“where Congress has enacted legislation criminalizing conduct on

the enclaves, the federal statutes preempt the state laws regarding

those crimes." Pet. App. 4. In the view of the court of appeals,

no "gap" in federal law existed because the conduct at issue was

proscribed by 18 U.S.C. 1111. Pet. App. 9. The court concluded

that "the federal murder statute preempts the Louisiana first

degree murder statute because the killing of a human being is

punishable under the federal statute and because the nature of the

crime ‘murder of a child’ does not differ substantially from the

nature and theory of murder in general." Jd. at 12.

The court held, however, that the government’s reliance on the

Assimilative Crimes Act did not require reversal of petitioners’

convictions. The court explained that

{t]he basic elements are the same for second degree murder

under 18 U.S.C. § 1111(a) and first degree murder under La.

Rev. Stat. § 14:30A(S). Both statutes require proof of

specific intent and the killing of a human being. Regarding

intent, 18 U.S.C. § 1111 requires proof of “specific intent to

inflict serious bodily injury," and La. Rev. Stat. § 14:30A(5S)

requires proof of “specific intent to inflict great bodily

harm." * * * Though labeled somewhat differently, “intent to

inflict serious bodily injury” and “intent to inflict great

bodily harm" represent parallel intents for purposes of

evaluating these murder statutes.

Pet. App. 14-15 (footnote omitted). Based on the statutory

elements of the state and federal crimes, and the instructions

given to the jury at petitioners’ trial, the court of appeals

concluded that the elements of second degree murder under federal

law had been proved by the government and found by the jury. ld.

at 15-16.

8

The court of appeals also concluded that a remand for

resentencing was not required. The court stated that

"(r)esentencing is only required where the district court has

imposed a sentence that exceeded the maximum sentence that the

defendant would have received if sentenced under the applicable

federal statute." Pet. App. 16. The court observed that

petitioners “did not receive a sentence exceeding the maximum

sentence allowed under the federal murder statute," because federal

law provides that persons convicted of second degree murder may be

imprisoned “for any term of years or for life." Jd. at 17 (quoting

18 U.S.C. 1111(b)). The court concluded on that basis that it

“need not remand for resentencing." Pet. App. 17.°

ARGUMENT

Petitioner Debra Lewis contends (96-7151 Pet. 9-14) that her

conviction should be reversed and the case remanded for a new

trial. Both petitioners argue that the court of appeals erred in

affirming their sentences. 96-7151 Pet. 9, 14-18; 96-7726 Pet. 6-

11. Those arguments are premised on the court of appeals’

determination that petitioners should have been tried under the

federal murder statute rather than the Assimilative Crimes Act and

the Louisiana child murder statute. As we explain below, however,

petitioners were properly charged, convicted, and sentenced under

the Assimilative Crimes Act and the Louisiana child murder statute.

* The court of yee also rejected petitioners’ challenges

to the sufficiency of the evidence and to the admission into

evidence of certain photographs and of petitioners’ own statements

to investigators. Pet. App. 17-28. Petitioners do not press those

challenges in this Court.

9

Thus, although we disagree with the court of appeals’ reasoning on

that point, the court’s judgment affirming petitioners’ convictions

and sentences is correct. Further review is not warranted.‘

1. The Assimilative Crimes Act "use[s]) local statutes to fill

in gaps in the Federal Criminal Code where no action of Congress

has been taken to define the missing offenses," Williams v. United

States, 327 U.S. 711, 719 (1946), by making the penal laws of a

State applicable to crimes committed in federal enclaves. See

United States v. Hall, 979 F.2d 320, 322 (3d Cir. 1992);-United

States v. Brown, 608 F.2d 551, 553 (Sth Cir. 1979); see also United

States v. Sharpnack, 355 U.S. 286, 293 (1958) ("within each federal

enclave, to the extent that offenses are not pre-empted by

congressional enactments, there shall be complete current

conformity with the criminal laws of the respective States in which

the enclaves are situated"). The Act applies to any "act or

omission" occurring within a fede-al enclave “which, although not

made punishable by any enactment of Congress, would be punishable

if committed or omitted within the jurisdiction of the State * * *

in which such place is situated.” 18 U.S.C. 13(a).

This Court’s most thorough discussion of the ACA was set forth

in its decision in Williams. The defendant in that case was

charged with having intercourse with a female between the ages of

16 and 18 in Indian country. He was convicted of statutory rape

* The prevail party defend a judgment before this Court

on any ground Vom es y raised below, whet relied upon, rejected,

or even cons by the district court or court of appeals. See,

e.9., Bennett v. Spear, No. 95-813 (March 19, 1997), slip op. 11.

10

under an Arizona statute that set the age of consent at 18. At the

time of the prosecution and conviction, federal law defined the

separate crimes of rape, assault with intent to commit rape, carnal

knowledge of a girl less than 16 years old, adultery, and

fornication. 327 U.S. at 713-714 & nn. 4-8. This Court agreed

that the ACA applies to crimes committed in Indian country, id. at

713, but concluded that the state law setting the age of consent at

18 could not be assimilated under the ACA in light of Congress’s

decision to set the age of consent at 16. id. at 717-718. As the

Court explained, where "(1) the precise acts upon which “the

conviction depends have been made penal by the laws of Congress"

and "(2) the offense known to [state law] has been defined and

prohibited by the Federal Criminal Code," the federal offense

cannot “be redefined and enlarged by application to it of the

Assimilative Crimes Act." Id. at 717. “Because Congress intended

to “cover rape and all related offenses fully" and "gave special

attention to the age of consent," id. at 724, the Court held, the

Arizona statutory rape law could not be applied to the federal

enclave under the ACA.

The ACA is not rendered inapplicable Simply because the

primary conduct that is the subject of the prosecution might also

violate some federal criminal law.’ Rather, the ACA applies unless

” The courts of appeals have frequently sustained convictions

for assimilated state crimes under the ACA, even where the

defendant’s conduct would also have been subject to prosecution

under a federal criminal statute. See, e.g., United States v.

Sasnett, 925 F.2d 392, 396 (11th Cir. 1991) ("precise act" of

causing death while driving under the influence of alcohol was

properly prosecuted under state law even though defendant’s conduct

11

Congress has addressed the specific problem that is the subject of

the state law sought to be assimilated, in a manner that conflicts

with the policies reflected in the state enactment. Thus, in

Williams, assimilation of the Arizona statutory rape offense would

have frustrated Congress’s decision to set the age of consent at

16. See 327 U.S. at 718 ("a conflicting State definition does not

enlarge the scope of the offense defined by Congress").

No such conflict exists in this case. Louisiana has made the

murder of a child -- either with specific intent to kill or to

cause serious bodily injury -- a separate and distinct crime,

punishable as first degree murder. 14 La. Rev. Stat. Ann. §

30A(S). The State has evidently determined that killing a child,

whether deliberately or through intentional abuse, is a distinct

offense warranting a distinct penalty. See Louisiana v. Weiland,

505 So.2d 702, 709 & n.31 (La. 1987) (passage of child murder

Statute reflects the view that "[c]hildren * * * are in the

category of persons needing special protection"). The State’s

was also covered by federal involuntary manslaughter statute; state

law was “designed to punish specific conduct which is not

specifically addressed by federal law"); United States v. Griffith,

864 F.2d 421, 423-424 (6th Cir. 1988) (ACA prosecutions may

appropriately be brought for various forms of aggravated assault,

even where conduct in question also violates federal assault

statute), cert. denied, 490 U.S. 1111 (1989); v.

Kaufman, 862 F.2d 236, 237-238 (9th Cir. 1988) (per curiam) (ACA

prosecution was brought under an assimilated Oregon law that

prohibited pointing a loaded or unloaded firearm at another; court

held that the ACA charge was proper even though defendant might

have been prosecuted under federal assault statute) ; i Vv.

, 438 F.2d 205, 207 (2d Cir.), cert. denied, 403 U.S.

907 (1971) (assimilation of state malicious shooting statute was

proper even though acts committed were criminal under federal

assault statute; state statute "provides a theory essentially

different from that provided in the federal statute").

12

decision is not in conflict with any federal enactment: Congress

has not addressed the subject of child murder in a direct or

specific manner.

The court of appeals decisions most closely on point have

recognized that state laws prohibiting the abuse of children may

properly be applied in federal enclaves under the Assimilative

Crimes Act, even where the conduct at issue is also violative of a

more general federal law. In United States v. Brown, the defendant

was convicted under a Texas child abuse statute, pursuant to the

ACA, for beatings inflicted upon her two-year-old stepson. She

argued that the ACA was inapplicable because her alleged conduct

was covered by the federal assault statute. 608 F.2d at 553. The

court rejected that contention. It recognized that the defendant

could have been charged under the federal statute -- which

Criminalized, jnter alia, “assault by striking, beating, or

wounding." Id. at 554 (quoting 18 U.S.C. 113(d)). It held,

however, that assimilation of the state statute was proper because

the “precise act" of injury to a child was not proscribed by

federal law. Ibid. Child abuse, the court explained, is "specific

‘conduct of a different character" than that criminalized by the

federal assault statute. Ibid.

Similarly, in United States v. Fesler, 781 F.2d 384 (Sth

Cir.), cert. denied, 476 U.S. 1118 (1986), two parents convicted of

federal involuntary manslaughter and state child abuse challenged

their state law convictions under the Assimilative Crimes Act.

They argued that their alleged conduct -- the fatal scalding of

13

their infant daughter -- could not be prosecuted under the

Assimilative Crimes Act because it was also violative of the

federal manslaughter statute. Id. at 390. The court rejected that

claim, explaining that "the criminal acts charged are distinct"

because, inter alia, "(t]he Texas penal code states that the victim

must be under 14 years old or under before all the elements of

child abuse are satisfied." Id. at 391. The court deemed it

"important that the state statute seeks to punish a particular

offense at which the federal {involuntary manslaughter] statute is

not aimed, child abuse." Ibid. Similarly here, the relevant

Louisiana Code provision is directed to an evil -- the murder of

children -- that is not the subject of any distinct federal

prohibition.

In explaining its contrary conclusion in this case, the court

of appeals stated that the "different nature of the ‘act’ regarding

child abuse does not eliminate the need for seeking punishment for

murder under the federal statute when the abuse results in death."

Pet. App. 7. In support of that proposition, the court cited

United States v. Webb, 796 F.2d 60, 62 (Sth Cir. 1986), cert.

denied, 479 U.S. 1038 (1987), in which the defendant was charged

both with federal murder and child abuse under Texas law; United

States v. Phillip, 948 F.2d 241, 245 (6th Cir. 1991), cert. denied,

504 U.S. 930 (1992), in which defendants were charged under the

federal murder statute as well as the Kentucky criminal abuse

statute; and United States v. Harris, 661 F.2d 138, 139 (10th Cir.

1981), where the Wyoming child abuse statute was assimilated under

14

the ACA and charged in addition to federal murder. Pet. App. 7.

The court’s reliance on those decisions was misplaced. The

question in this case is not whether petitioners’ conduct could

have been prosecuted under the. federal murder statute. Such a

prosecution would assuredly have been proper. As we explain above,

however, the potential applicability of a general federal criminal

statute does not foreclose assimilation of a state law that is more

precisely directed at a particular evil.* Indeed, the courts in

Webb, Phillip, and Harris affirmed the defendants’ convictions on

the assimilated state charges notwithstanding the fact that in each

case the conduct at issue was also violative of the federal murder

statute. Similarly in the instant case, the fact that petitioners’

conduct was subject to prosecution under the federal murder statute

did not preclude assimilation, under the ACA, of a state law

specifically directed to the murder of children.

Because petitioners were properly tried and convicted pursuant

to the Louisiana child murder statute and the ACA, their sentences

of life imprisonment were consistent with -- indeed, dictated by --

applicable law. The Assimilative Crimes Act provides that a person

who commits a state crime on a federal enclave "shall be guilty of

a like offense and subject to a like punishment." 18 U.S.c. 13 (a).

In sentencing a defendant convicted of an assimilated state crime,

* At the time of the prosecutions and convictions in Webb,

Phillip, and Harris, Texas, Kentucky, and Wyoming had not

Ccriminalized child murder. See Tex. Penal Code Ann. § 1902; Ky.

Rev. Stat. Ann. § 507.020. The Wyoming murder statute currently

classifies as first degree murder the killing of a child in the

course of child abuse. Wyo. Stat. § 6-2-101. That provision was

added to the code in 1994, well after the 1981 decision in Harris.

15

a court generally applies the Sentencing Guidelines provisions

applicable to the most closely analogous federal crime. State law,

however, establishes both the minimum and maximum penalties to

which the defendant may be exposed. See United States v. Pierce,

75 F.3d 173, 176 (4th Cir. 1996); United States v. Garcia, 893 F.2d

250, 254 (10th Cir. 1989), cert. denied, 494 U.S. 1070 (1990);

United States v. Leake, 908 F.2d 550, 553 (9th Cir. 1990); United

States v. Marmolejo, 915 F.2d 981, 984 (Sth Cir. 1990).

The Louisiana first degree murder statute provides for a

mandatory life sentence if the government does not seek the death

penalty. 14 La. Rev. Stat. Ann. § 30C. The United States did not

seek the death penalty in this case. The district court was

therefore required to sentence petitioners to life imprisonment.

The court’s consideration of the Sentencing Guidelines (see page 6,

Supra) was thus superfluous; but the sentence imposed by the court

was mandated by Louisiana law and was therefore correct under the

ACA.

2. Petitioner Debra Lewis contends (96-7151 Pet. 9-11) that

the court of appeals erred in affirming her conviction. The

premise of petitioner’s argument is that the court of appeals

correctly concluded that assimilation of the Louisiana child murder

statute was improper. As explained above, that premise is

mistaken. Even if that premise were correct, however, it would not

Support reversal of petitioner’s conviction.’ The courts of

* Petitioner James Lewis concedes that the “appropriate remedy

is not reversal of the conviction." 96-7726 Pet. 9.

16

appeals agree that a conviction pursuant to an improperly

assimilated state statute may be affirmed where the essential

elements of the preemptive federal crime have been proved at trial

and found by the jury. See United States v. Hall, 979 F.2d 320,

323 (3d Cir. 1992); United States v. Lavender, 602 F.2d 639, 641

(4th Cir. 1979); United States v. Walker, 557 F.2d 741, 746 (10th

Cir. 1977); United States v. Chaussee, 536 F.2d 637, 644-645 (7th

Cir. 1976); United States v. Word, 519 F.2d 612, 618 (8th Cir.),

cert. denied, 423 U.S. 934 (1975); United States v. Olvera, 488

F.2d 607, 608 (Sth Cir. 1973), cert. denied, 416 U.S. 917 (1974);

Hockenberry v. United States, 422 F.2d 171, 174 (9th Cir. 1970).

Petitioner Debra Lewis cites no contrary authority.

In this case, the court of appeals correctly held that the

government had proved, and the jury had found in returning its

verdict on the assimilated state charge, all of the elements of

federal second degree murder. Pet. App. 12-16. The court focused

in particular on the federal statute’s requirement that the

defendant act with "malice aforethought." 18 U.S.C. llll(a). In

Lara v. Parole Comm'n, 990 F.2d 839, 841 (Sth Cir. 1993), the court

outlined the three distinct mental states encompassed by malice

aforethought: 1) intent to kill; 2) intent to do serious bodily

injury; and 3) extreme recklessness and wanton disregard for human

life. See also United States v. Shaw, 701 F.2d 367, 392 n.20 (Sth

Cir. 1983) (malice does not require subjective intent to kill, but

may be established by evidence of conduct which is "reckless and

wanton and a gross deviation from the reasonable standard of care"

17

such that a jury can infer that defendant was aware of serious risk

of death or bodily harm), cert. denied, 465 U.S. 1067 (1984) ;

accord United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir.

1995), cert. denied, 116 S. Ct. 749 (1996); United States v. Ryan,

9 F.3d 660, 671 n.11 (8th Cir. 1994), on rehearing en banc, 41 F.3d

361 (8th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995); United

States v. Sides, 944 F.2d 1554, 1558 (10th Cir.), cert. denied, 502

U.S. 989 (1991); United States v. Fleming 739 F.2d 945, 947-948

(4th Cir. 1984), cert. denied, 469 U.S. 1193 (1985); United States

v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974).

In accordance with the languaye of the Louisiana child murder

Statute, the district court instructed the jury that it could

convict petitioners only if it found that they had "acted with

specific intent to kill or inflict great bodily harm." Pet. App.

16. In light of the comparable intent standards embodied in the

state and federal laws, petitioner Debra Lewis’s claim of

prejudice, because of a purportedly “easier burden of proof"

required of the government under the Louisiana law, 96-7151 Pet.

12, is without merit. There would consequently be no basis for

reversal of petitioner’s conviction even if the assimilation of the

Fad

Louisiana child murder statute were improper. *

© If the application of the ACA to petitioners had been

improper, the appropriate remedy would be to remand for

resentencing, pursuant to the Sentencing Guidelines, on the federal

offense of second degree murder. See 96-7726 Pet. 9-10;

States v. Lavender, 602 F.2d at 641; United States v. Walker, 557

F.2d at 746; United States v. Chaussee, 536 F.2d at 644-45; United

States v. Word, 519 F.2d at 618; v. , 422

F.2d at 174. We do not agree with the court of appeals’ conclusion

(see Pet. App. 16-17) that resentencing would be unnecessary simply

18

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

DEMETRA LAMBROS

Attorney

MARCH 1997

because the terms of imprisonment imposed by the district court

fell within the statutory maximum sentence for second degree murder

under federal law.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

Nos. 96-7151 and 96-7726

DEBRA FAYE LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

JAMES M. LEWIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

CERTIFICATE OF SERVICE

It is hereby certified that all parties required to be served

have been served copies of the BRIEF FOR THE UNITED STATES IN

OPPOSITION by first class mail, postage prepaid, on this 28th day

of March, 1997.

See Attached Service Lists

dtiv D ans, ©

Acting Solicitor General

March 28, 1997

96-7151

LEWIS,

USA

DEBRA FAYE

GRANGER

203 WEST CLARENCE STREET

LAKE CHARLES, LOUISIANA

96-7726

JAMES M.

REBECCA L. HUDSMITH

FEDERAL PUBLIC DEFENDER

102 VERSAILLES BLVD. SUITE 816

LAFAYETTE, LOUISIANA 70501