United States v. James Durward Harper, James Durward Harper v. United States District Court for the Northern District of California, United States of America, Real Party in Interest

729 F.2d 1216 UNITED STATES of America, Plaintiff-Appellee, v. James Durward HARPER, Defendant-Appellant. James Durward HARPER, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest. Nos. 84-1010, 84-1037 and 84-7111. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 1, 1984. Decided April 3, 1984. As Amended April 24, 1984. John C. Gibbons, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. Jerrold M. Ladar, San Francisco, Cal., for defendant-appellant. Appeals from the United States District Court for the Northern District of California and Petition for Writ of Mandamus. Before SNEED, FLETCHER, and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 James Durward Harper is charged with obtaining and selling national defense information to Polish agents in violation of United States espionage statutes. In the district court, the government and Harper agreed that the death penalty provision of the espionage statutes involved is unconstitutional. The district judge nevertheless issued a pretrial order in which he held the relevant death penalty…