United States v. Raymond D. Cheely, Jr. Douglas P. Gustafson

21 F.3d 914 62 USLW 2687 UNITED STATES of America, Plaintiff-Appellant, v. Raymond D. CHEELY, Jr.; Douglas P. Gustafson, Defendants-Appellees. Nos. 92-30257, 92-30504. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 6, 1993. Decided April 11, 1994. Wevley William Shea, U.S. Atty., Dist. of Alaska, Anchorage, AL, James S. Reynolds, John F. De Pue, Dept. of Justice, Washington, DC, Mark H. Bonner (argued), Dept. of Justice, Washington, DC, Mary Incontro, Tammy Haimov, Dept. of Justice, Washington, DC, for plaintiff-appellant. Nancy Shaw, Federal Public Defender, Anchorage, AL, Richard Kammen, McClure, McClure & Kammen, Indianapolis, IN, James H. McComas, Schleuss & McComas, Richard H. Friedman, Friedman & Rubin, Anchorage, AL, Rich Curtner, Asst. Public Defender, Anchorage, AL, for defendants-appellees. Appeal from the United States District Court for the District of Alaska. Before: SCHROEDER, FLETCHER, and ALARCON, Circuit Judges. Opinion by Judge FLETCHER, Concurrence and Dissent by Judge ALARCON. FLETCHER, Circuit Judge: 1 The government brings an interlocutory appeal to challenge the district court's pretrial rulings that (1) Cheely cannot be…

Opinion by Judge FLETCHER, Concurrence and Dissent by Judge ALARCON.

The government brings an interlocutory appeal to challenge the district court’s pretrial rulings that (1) Cheely cannot be subjected to the death penalty, and (2) Cheely’s statements to investigating postal inspectors are inadmissible at trial because his Miranda rights were violated. We affirm.

PROCEDURAL HISTORY

Before the commencement of trial, the district court directed the parties to address the applicability of the capital punishment provisions of the relevant federal statutes. It did this because several procedures different from those for an ordinary criminal trial would be implemented were this a death penalty case. For example, Cheely would be entitled to extra peremptory challenges if the offenses for which he is charged are “punishable by death,” Fed.R.Crim.P. 24(b), and he would also be entitled to have two attorneys represent him. 18 U.S.C. § 3005 (1988). The government, on the other hand, would be allowed to seek a “death qualified” jury, one free of jurors so absolutely opposed to the death penalty that they would not impose it regardless of the strength of the government’s case. Cf.…

dissenting:

The majority has concluded that Congress violated the Eighth Amendment by making punishable by death the intentional killing of a human being by sending a bomb through the United States mails. In reaching this result, the majority has ignored the presumption that “a punishment selected by a democratically elected legislature is constitutionally valid.” Campbell v. Wood, 18 F.3d 662, 682 (9th Cir.1994) (en banc).

I respectfully dissent because, in enacting sections 844(d) and 1716(a), Congress limited the death penalty to those who kill in a particularly appalling and heinous manner. As applied to Cheely, these statutes fully comply with the Eighth Amendment as interpreted by the Court in Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), and Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988).

I. The Indictment

Cheely was indicted on April 14, 1992. The indictment alleges in Count 1 that

Count 4 of the indictment charges that

Unlike the majority’s negligent idealist whose sole goal was to damage a football field, Cheely is charged in Count 1 with sending an explosive device through the mails with the intent to injure and…