concurring and dissentmg:

The majority has concluded that Congress violated the Eighth Amendment by making pumshable by death the intentional killing of a human being by sending a bomb through the Urnted 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 , 1994 U.S.App. LEXIS 1964, at *1964 (9th Cir. Feb. 8, 1994) (en banc).

*1449 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 kill the person who opened the package. In Count 4, Cheely is charged with sending an explosive device intentionally designed to Mil the recipient. The indictment in each count expressly alleges that Cheely acted with the intent to kill another human being. Our responsibility in this case is to determine whether the death penalty can be applied to a person who committed the crime described in the indictment.

II. The Presumptive Constitutional Validity of Sections 844(d) and 1716(a)

The majority correctly explains that we cannot defer to the trial judge’s interpretation of the Eighth Amendment, nor to the district court’s determination that Congress exceeded its constitutional powers in enacting sections 844(d) and 1716(a). In carrying out our independent appellate responsibility in reviewing a constitutional challenge to the punishment prescribed by Congress, we must faithfully apply the decisions of this nation’s highest court. These decisions instruct us that we must presume that Congress lawfully performed its constitutional duties. In Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), the Supreme Court cautioned courts charged with determining the constitutionality of a death penalty statute as follows:

Id. at 175 , 96 S.Ct. at 2926 (emphasis added).

Cheely does not argue that the death penalty is cruelly inhumane. Instead, Cheely contends that these statutes are unconstitu *1450 tional because they cover “a wide range of acts ... where there is no intent to Mil, but solely the intent to damage property.” Ap-pellee’s Brief at 29. Although never ae-Imowledged by the majority, it is Cheely who bears the heavy burden of demonstrating that section 844(d) and section 1716(a) are unconstitutional. He has not met that burden.

III. Cheely Lacks Standing to Challenge the Statute as Applied to Others

Cheely contends that sections 844(d) and 1716(a) do not meet the narrowing requirement imposed by the Eighth Amendment because they are so broad in their scope that they would permit a jury to recommend the death penalty arbitrarily and capriciously, in violation of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972).

In adopting Cheely’s contention, the majority argues that the statutes are unconstitutional because the jury in this matter will be presented “with a broad class, composed of persons of many different levels of culpability, and [will be] allowed to decide who among them deserves death.” Majority opinion at 1445. The majority maintains that “[t]he statute before us is unconstitutional because it utterly fails to foreclose this prospect.” Id. The majority concludes that the statutes permit a wanton and freaMsh application of the death penalty in violation of the Eighth Amendment because they “are broad enough to authorize death for persons guilty of no more than involuntary manslaughter.” Id. at 1443.

The majority’s analysis confuses the requirement that statutes narrow the class of persons subject to the death penalty with the rule prohibiting a punishment that is grossly disproportionate to the crime involved. See Coker v. Georgia, 433 U.S. 584, 592 , 97 S.Ct. 2861, 2866 , 53 L.Ed.2d 982 (1976). In Coker , the Supreme Court held that the death penalty was a grossly disproportionate and excessive punishment for the crime of rape. Id. In this matter, the majority essentially concludes that the statutes at issue may subject to the death penalty persons for whom death would similarly be a disproportionate punishment. For the majority, tMs demonstrates that the statutes fail to narrow the class of persons eligible for the death penalty. However, this line of analysis more properly relates to the question of proportionality, a requirement which is fulfilled in this case. As the district court noted in its June 3, 1992 minute order: “[T]he defendants are charged with what would have been premeditated murder at common law_ Consequently, their crime, if proved to the satisfaction of a petit jury, satisfies the proportionality analysis employed by the Urnted States Supreme Court.” Minute Order from Chambers at 1-2 (June 3, 1992).

Furthermore, the majority’s analysis ignores the fact that Cheely was not charged with conduct that might be characterized as involuntary manslaughter. He is charged with what would have been identified as an especially vicious form of deliberate, premeditated, intentional murder at common law. TMs stands in stark contrast to the straw man created and triumphantly destroyed by the majority.

The majority argues that a sentence of death would be “impermissibly disparate and irrational” for a person who umntentionally Mils a human being with an explosive device sent through the mails as part of an academic protest. Majority opirnon at 1444. The Supreme Court instructed us long ago, however, that we lack the jurisdiction to give advisory opmions on hypothetical questions. Our authority is limited to actual cases and controversies presented by persons who have a concrete interest in the outcome of the litigation because of an alleged or threatened injury. The constitutionality of the portions of these statutes that make an intentional killing puMshable by death is the sole issue before this court. Cheely simply lacks standing to challenge these statutes “on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt.” 1 Broadrick v. *1451 Oklahoma, 413 U.S. 601, 610 , 93 S.Ct. 2908, 2915 , 37 L.Ed.2d 830 (1973). Accordingly, the distracting hypothetical posed by the majority concerning the impact of these statutes on a bumbling academic protestor who kills unintentionally is not properly before this court under the clear teaching of Broadrick .

IV. Eighth Amendment Jurisprudence

A. Furman v. Georgia

An examination of the development of Eighth Amendment jurisprudence readily demonstrates that the challenged statutes meet the narrowing requirement first recognized by the Supreme Court’s plurality opinion in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). In Fur-man, the defendants were convicted and sentenced under Georgia statutes which permitted the trier of fact to select the punishment of death or a lighter punishment in its unfettered discretion. Id. at 240 , 92 S.Ct. at 2727 (Douglas, J., concurring). Three members of the Court concluded that the failure of the Georgia statutes to guide the jury in the exercise of its discretion violated the Eighth and Fourteenth Amendments. Id. at 256-57 , 92 S.Ct. at 2735 (Douglas, J., concurring) (“[Tjhese discretionary statutes are unconstitutional in their operation.”); id. at 310 , 92 S.Ct. at 2763 (Stewart, J., concurring) (“I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed.”); see id. at 313 , 92 S.Ct. at 2764 (White, J., concurring) (“[A]s the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.”). Justice Brennan and Justice Marshall were of the view that capital punishment is cruel and unusual, and therefore cannot be imposed for any crime. Id. at 305 , 92 S.Ct. at 2760 (Brennan, J., concurring); id. at 360 , 92 S.Ct. at 2788 (Marshall, J., concurring).

Left unresolved by Furman was the question whether the narrowing of the jury’s discretion could be performed by the definition of the crime itself, or whether it was necessary for the statute to recite a specific set of factors to guide the trier of fact’s discretion in making its sentencing decision, after finding the defendant guilty of a homicide. In subsequent decisions, the Court has held that the narrowing function can be provided in the definition of the crime applied during the guilt phase of trial, or in the specification of aggravating circumstances to be considered during sentencing proceedings.

B. Georgia’s Response to Furman v. Georgia

Following the Court’s determination that its capital punishment procedures were unconstitutional, Georgia amended its laws to place limitations on the jury’s discretion in capital cases. Although no change was made in the definition of the felonies for which a person could receive the death penalty, Gregg v. Georgia, 428 U.S. 153 , 163 n. 6, 96 S.Ct. 2909 , 2920 n. 6, 49 L.Ed.2d 859 (1976), 2 the 1972 Georgia legislation required that the trier of fact find the existence of certain specified aggravating circumstances before the death penalty could be imposed. See id. at 165-66 , 96 S.Ct. at 2921-22. The Georgia statute also permitted the jury to consider “nonstatutory aggravating or mitigating circumstances,” although the nature or scope of the nonstatutory aggravating or mitigating circumstances was not set forth in the statute. Id. at 164, 96 S.Ct. at 2921. Moreover, the Georgia statute provided that if the sentence imposed was death, the judge or jury must specify the aggravating circumstanee(s) found to justify the penalty. Id. at 166, 96 S.Ct. at 2922.

The Supreme Court reviewed the constitutionality of the penalty phase procedures of *1452 this new legislation in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). The Court first confronted the question that was left unresolved in Furman , namely, whether “the punishment of death for the crime of murder is, under all circumstances, ‘cruel and unusual’ in violation of the Eighth and Fourteenth Amendments of the Constitution.” Id. at 168, 96 S.Ct. at 2922. The Court determined that it was not. Id. at 187, 96 S.Ct. at 2931-32.

The Court next considered whether the 1972 Georgia statute had overcome the constitutional deficiencies of the procedures followed in the Furman prosecution. Furman , the Court noted, prohibited the imposition of the death penalty where the “sentencing procedures ... created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Id. at 188, 96 S.Ct. at 2932. The Court further explained that “Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Id. at 189, 96 S.Ct. at 2932.

The Court ruled that the sentencing procedures devised by the State of Georgia met the requirements prescribed in Furman , reasoning that:

Id. at 206-07, 96 S.Ct. at 2940-41.

C. Texas’ Response to Branch v. Texas

In Branch v. Texas, which was consolidated with Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), the Court held unconstitutional Texas’ system for imposing capital punishment. Id. at 239-40 , 92 S.Ct. at 2727 . In response, the Texas Legislature revised its death penalty statute. With regard to murder, Texas redefined capital homicide, limiting the punishment of death to:

See Jurek v. Texas, 428 U.S. 262, 268 , 96 S.Ct. 2950, 2954-55 , 49 L.Ed.2d 929 (1976).

Texas also adopted a new procedure to be followed in cases wherein the jury found the defendant guilty of a capital homicide. Id. at 269 , 96 S.Ct. at 2955. This procedure required the jury to answer the following questions:

Id. (quoting Tex.Code Crim.Proc., Art. 37.-071(b) (Supp.1975-76)). If a Texas jury found that the prosecution had proved beyond a reasonable doubt that the answer to *1453 each question was yes, the death penalty was imposed. Id. If the answer to any question was no, a sentence of life imprisonment was imposed. Id.

In Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), the petitioner was convicted of killing a woman during the perpetration of a kidnapping and rape. Id. at 264-67 , 96 S.Ct. at 2953-54. After considering evidence of mitigating and aggravating circumstances submitted during the punishment phase of the bifurcated proceedings, the jury answered yes to the following applicable questions:

Id. at 267-268, 96 S.Ct. at 2954. In accordance with the jury’s unanimous affirmative vote, the state trial court sentenced the petitioner to death. Id. at 268, 96 S.Ct. at 2954-55.

On certiorari to the United States Supreme Court, the petitioner argued that the Texas statute violated the Eighth and Fourteenth Amendments because it did not eliminate the arbitrary and capricious nature of the system found unconstitutional in Branch and Furman. Id. at 274, 96 S.Ct. at 2957. The Court rejected this argument, concluding that

Id. at 270, 96 S.Ct. at 2955. The Court noted that “the principle difference between Texas and [Georgia and Florida] is that the death penalty is an available sentencing option— even potentially — for a smaller class of murders _ Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.” Id. at 271, 96 S.Ct. at 2956. Thus, in defining the crime, the Texas statute adequately narrowed the class of murderers subject to the death penalty.

The Court also concluded that to meet the constitutional requirement of individualized sentencing,

Id. Unlike the Georgia statute that directed the jury to consider mitigating factors, Texas law “[did] not explicitly speak of mitigating circumstances.” Id. at 272, 96 S.Ct. at 2956. Nevertheless, the Court upheld the constitutionality of the Texas statute because the Texas Court of Criminal Appeals had interpreted the second statutory question “so as to allow a defendant to bring to the jury’s attention whatever mitigating circumstances he may be able to show.” Id.

The Court summarized its holding in Jurek in the following passage:

Id. at 273-274 , 96 S.Ct. at 2957.

The Court concluded that “[b]ecause [the Texas] system serves to assure that sen *1454 tences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution.” Id. at 276, 96 S.Ct. at 2958.

D. Application of the Narrowing Principle to Louisiana Law

In Lowenfield v. Phelps, 484 U.S. 231 , 108 S.Ct. 546 , 98 L.Ed.2d 568 (1988), the Supreme Court reviewed Louisiana’s death penalty scheme. Louisiana law divided homicide into five grades: first-degree murder, second-degree murder, manslaughter, negligent homicide, and vehicular homicide. Id. at 241 , 108 S.Ct. at 553 . Second-degree murder included intentional murder and felony murder. The punishment for second-degree murder was life imprisonment without the possibility of parole. Id. First degree murder was limited to a narrower class of homicides — the killing of a human being:

Id. at 241-42 , 108 S.Ct. at 553 (quoting La. Rev.Stat.Ann. § 14:30A (West 1986)).

Under this statutory scheme, after a jury found an individual guilty of first-degree murder during the guilt phase of the trial, the jury selected the punishment in a separate proceeding. Id. at 242, 108 S.Ct. at 553 . Louisiana law provided that “ ‘[a] sentence of death [could] not be imposed unless the jury [found] beyond a reasonable doubt that at least one statutory aggravating circumstance exist[ed] and, after consideration of any mitigating circumstances, recommend[ed] that the sentence of death be imposed.’ ” Id. (quoting La.Code Crim.Proc.Ann., Art. 905.3 (West 1984)). If the jury was not persuaded that at least one of the ten aggravating circumstances identified by statute had been proved, it could only impose a sentence of imprisonment without benefit of parole, probation, or suspension of sentence. Id.

The petitioner in Lowenfield was found guilty of three counts of first-degree murder under section 14.30A(3), an essential element of which was a finding that he intended “ ‘to kill or to inflict great bodily harm upon more than one person.’ ” Id. at 233 , 108 S.Ct. at 549 (quoting La.Rev.Stat.Ann. § 14.30A(3) (West 1986)). During the penalty phase of the trial, the jury found that the evidence demonstrated the existence of one of the aggravating circumstances listed by statute — the offender knowingly created “ ‘a risk of death or great bodily harm to more than one person.’” Id. at 235, 108 S.Ct. at 549 (quoting La.Code Crim.Proc.Ann., Art. 905.-4(d) (West 1984)). Under Louisiana law, section 14.30A(3) and article 905.4(d) were “interpreted in a ‘parallel fashion.’ ” Id. at 243-44 , 108 S.Ct. at 554 (citing State v. Williams, 480 So.2d 721, 726-27 (La.1985)). The petitioner was sentenced to death. Id. at 235, 108 S.Ct. at 549 .

Before the Supreme Court, the petitioner argued that the death sentence imposed by the trial court violated the Eighth Amendment because the aggravating circumstance found by the jury “merely duplicate^] an element of the underlying offense of first-degree murder of which he was convicted at the guilt stage.” Id. at 233 , 108 S.Ct. at 548 . In rejecting this contention, the Court summarized its prior analysis of the narrowing requirement of the Eighth Amendment in capital cases as follows:

Id. at 246 , 108 S.Ct. at 555 . The Court concluded that Louisiana’s death penalty scheme was constitutional because the statutes narrowed the class of persons eligible for the death penalty and thereby limited the jury’s discretion. Id.

In so doing, the Court made it clear that its decisions have not diluted the principle first announced by the plurality opinion in Furman that state laws which allow juries to recommend the penalty of death arbitrarily and capriciously violate the Eighth and Fourteenth Amendments. Since Furman was decided, the Court has upheld state laws that restrict or guide the exercise of discretion in capital murder cases. In Gregg , the Court instructed that a state may, without violating the Constitution, continue to define the crime of murder as it was at common law if its laws also require the jury to find expressly the existence of an aggravating circumstance that narrows the class of persons eligible for the death penalty. In Jurek , the Court ruled that a state may eliminate the possibility that a jury will act capriciously or arbitrarily by “narrowing the categories of murders for which a death sentence may ever be imposed,” without requiring that the jury also find the existence of an aggravating circumstance. Jurek, 428 U.S. at 270 , 96 S.Ct. at 2955 . The Court further confirmed the constitutional validity of this approach in Lowen-field. Thus, a death penalty statute which limits the discretion of the trier of fact, either during the guilt phase by narrowly defining the class of capital crimes, or during the penalty phase by specifying aggravating circumstances, may be upheld.

The Court cautioned in Gregg that “each distinct [capital sentencing] system [of restraining jury discretion] must be examined on an individual basis.” Gregg, 428 U.S. at 195 , 96 S.Ct. at 2935 . An examination of the federal statutes challenged in this matter, as applied to Cheely, reveals that the imposition of capital punishment is restricted to a particularly heinous form of homicide.

Y. The Crime of Sending an Explosive Device to Kill or Injure Property Which Results in Death is Narrowly Defined

Critical to the resolution of the issues presented in this appeal is that we are not reviewing a federal statute which purports to punish all forms of homicide regardless of the intent of the perpetrator and without any guidelines to limit the jury’s discretion. Such a statute would unquestionably violate the plurality opinion in Furman . Furthermore, Congress has not in these statutes purported to punish common law murder committed within a state’s territorial jurisdiction. The exercise of the police power is not included in the enumerated powers of Congress set forth in Article I, Section 8 of the Constitution. The Tenth Amendment makes this restriction quite clear by providing that “[t]he powers that are not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” U.S. Const, amend. X. Unlike the States, which possess the power to enact broad homicide statutes which specify aggravating circumstances to narrow the class of murderers subject to the death penalty, Congress, in lawfully exercising its authority to regulate the mail and commerce, is limited to the enactment of statutes which narrowly define capital crimes. As discussed above, we must presume it did so in adopting sections 844(d) and 1716(a), mindful of its duty to comply with the Eighth Amendment. Gregg v. Georgia, 428 U.S. at 175, 96 S.Ct. at 2926 .

Cheely argues that sections 844(d) and 1716(a) are unconstitutional because they were enacted before the publication of Furman v. Georgia in 1972. Appellee’s Brief at 3, 11. The district court appears to have been persuaded by this argument. In justifying its ruling, the trial judge commented as follows:

Transcript of Proceedings, May 28, 1992, at 48-49. The majority apparently shares the view that all pre-Furman federal statutes are per se unconstitutional. See Majority opinion at 1444 n. 12. The only authority cited by the majority for this novel proposition is the dissenting opinion of Chief Justice Burger in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). Chief Justice Burger speculated that the plurality opinion in Furman would require state legislatures and Congress “to make a thorough re-evaluation of the entire subject of capital punishment.” Id. at 403, 92 S.Ct. at 2811 (Burger, C.J., dissenting).

Chief Justice Burger’s obiter dictum assumed that the Court’s three-judge plurality opinion effectively declared that all state and federal statutes not reviewed by the Court in Furman violated the Eighth Amendment. Unfortunately, Chief Justice Burger did not cite any authority to support his suggestion that the plurality opinion in Furman invalidated all existing state and federal death penalty legislation. Furthermore, I am unaware of any authority that holds that a dissenting judge’s dire prediction of the woeful consequences that will flow from the majority’s constitutional interpretation has any precedential value.

In fairness, it should be noted that Chief Justice Burger could not have anticipated the subsequent evolution of death penalty jurisprudence. He could not have anticipated that three years later, in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), the Court would hold that death penalty statutes are presumed to be valid, or that an accused faces a heavy burden in challenging their constitutionality. Chief Justice Burger also had no way of knowing in 1972 that the Supreme Court would hold 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), that a statute may comply with the Eighth Amendment by narrowly defining a capital crime, although not requiring the jury to find an aggravating circumstance. Furthermore, the notion that the Court’s decision in Furman also invalidated every existing state and federal statute whose validity was not being challenged in the matter before the Court, is contrary to the Court’s later admonition in Gregg that “each distinct [capital sentencing] system [of restraining jury discretion] must be examined on an individual basis.” Gregg, 428 U.S. at 195, 96 S.Ct. at 2935 (emphasis added).

Having individually examined sections 844(d) and 1716(a), I would hold that they comply with the narrowing standard set forth in Jurek and Lowenfield . In Lowenfield , the Supreme Court explained that the constitutional requirements set forth in Furman are satisfied by a system which limits the discretion of the trier of fact either during the guilt phase by narrowly defining the class of capital crimes, or during the penalty phase by specifying aggravating circumstances. Lowenfield, 484 U.S. at 246 , 108 S.Ct. at 555 . The Court has ruled that by making the death penalty a sentencing option for a smaller class of murderers, a statute may sufficiently channel the jury’s discretion at the guilt phase. Jurek, 428 U.S. at 270-71 , 96 S.Ct. at 2955-56 . In enacting sections 844(d) and 1716(a), Congress has confined the imposition of capital punishment to a person who has sent an explosive device through the mails with the intent to injure or kill the recipient and has succeeded in his plan. In so doing, Congress narrowly defined the type of offenders who may be subject to the death penalty — those who intentionally kill by use of a mail bomb. No further narrowing is required.

Through sections 844(d) and 1716(a), Congress targeted a particularly depraved type of killer — the cowardly assassin who intentionally and furtively kills from afar by means of a lethal device, disarmingly concealed in a wrapped container. Contrary to the majority’s suggestion, there is no possibility that the jury to be selected someday to *1457 try this case will be permitted to render a wanton and freakish recommendation that would result in the death penalty for a person “guilty of no more than involuntary manslaughter.” Majority opinion at 1444. Because these statutes do not permit the trier of fact to act arbitrarily and capriciously, Cheely has failed to meet his heavy burden of demonstrating a violation of the Eighth Amendment.

VI. The Majority’s Reliance on United States v. Harper is Misplaced

The majority finds support for its determination that the mail bomb statutes are unconstitutional in this court’s decision in United States v. Harper, 729 F.2d 1216 (9th Cir.1984). This reliance is misplaced. In Harper , the appellant was charged with espionage, in violation of subsections (a) and (e) of 18 U.S.C. § 794 . Id. at 1218 n. 1. Pursuant to section 794(a), any person who is convicted of transmitting to a foreign nation anything relating to the national defense, “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation,” is subject to punishment by death or life imprisonment. Id.

The analysis employed in Harper to declare this statute unconstitutional does not support the majority’s decision in this case. If anything, the Harper rationale requires this court to uphold the constitutionality of the penalty provisions of sections 844(d) and 1716(a). In section 794(a), Congress lumped together in one statute all forms of espionage. Congress did not distinguish the types of espionage that in its judgment required the death penalty from other forms less threatening to our national defense or public safety. For example, Congress did not focus on spies whose betrayal directly caused the death of another person. Unlike the mail bomb statutes, section 794(a) did not require any demonstration that anyone was injured. A mere showing that the espionage communication assisted another nation was sufficient to trigger the imposition of the death penalty. 3

Unlike section 794(a), the mail bomb statutes involved in this case narrowly define the type of conduct that must be proved before the jury can find the accused guilty and thereby subject to the death penalty. Thus, Congress, in its definition of the crime, has confined the jury’s ability to recommend the death penalty to a case wherein the defendant mailed a bomb with the intent to injure or kill the recipient, and caused the death of a human being. This method of narrowing the jury’s discretion in death penalty cases is consistent with the statutes upheld 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). Because sections 844(d) and 1716(a) do not violate the Eighth Amendment, congressional amendment of these *1458 statutes after the Supreme Court announced its decision in Furman was unnecessary. I would hold that Cheely has failed to bear his heavy burden of overcoming the presumption of constitutionality of a punishment prescribed by the duly elected members of Congress.

VII. The Statutes Need Not Explicitly Provide for the Consideration of Mitigating Evidence

Cheely also argues that the mail bomb statutes violate the Eighth Amendment because they do not expressly require that the jury consider mitigating evidence in choosing between life imprisonment and the death penalty. This contention lacks merit.

Rule 402 of the Federal Rules of Evidence provides that all relevant evidence is admissible. Fed.R.Evid. 402. Under the Eighth Amendment, evidence that might cause a jury to decline to impose the death penalty must be admitted. McCleskey v. Kemp, 481 U.S. 279, 304 , 107 S.Ct. 1756, 1773-74 , 95 L.Ed.2d 262 (1987). Therefore, the Constitution dictates that any evidence which might reasonably be deemed to have mitigating value is relevant and admissible, McKoy v. North Carolina, 494 U.S. 433, 440 , 110 S.Ct. 1227, 1232 , 108 L.Ed.2d 369 (1990), and the exclusion of such evidence would violate the Eighth Amendment. Lockett v. Ohio, 438 U.S. 586, 608 , 98 S.Ct. 2954, 2966-67 , 57 L.Ed.2d 973 (1978). Contrary to Cheely’s contention, Congress, in adopting Rule 402 of the Federal Rules of Evidence, has provided for the admission of mitigating circumstances in federal death penalty eases.

Cheely further contends that the mail bomb statutes are unconstitutional because Congress failed to spell out the procedure that must be followed during the sentencing phase. We rejected a similar argument in McKenzie v. Risley, 842 F.2d 1525 , 1542 n. 35 (9th Cir.) (en banc), cert. denied, 488 U.S. 901 , 109 S.Ct. 250 , 102 L.Ed.2d 239 (1988). We disposed of this issue with the following words:

Id. (emphasis added).

The trial in this matter has been delayed pending resolution of this appeal. We therefore have the opportunity to direct the trial court to conduct sentencing proceedings if the jury returns a guilty verdict, to admit all mitigating evidence pursuant to Rule 402, and to instruct the jury according to the Eighth Amendment jurisprudence of the Supreme Court. Since the mail bomb statutes already narrow the class eligible for the death penalty in the definition of the crime, they are constitutional “even though [they] clearly did not channel the jmy’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances.” Zant v. Stphens, 462 U.S. 862, 875 , 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 (1983).

Conclusion

In sections 844(d) and 1716(a), Congress has focused on a vicious type of killer whose conduct endangers all persons who come into contact with his lethal package, whether or not they are the target of his depraved intent. The statutes comply fully with the Supreme Court’s decisions that statutes may narrowly define capital crimes as a means of preventing juries from arbitrarily and capriciously recommending the death penalty.

The fact that the mail bomb statutes do not specify statutory mitigating circumstances does not conflict with the Eighth Amendment. The rules of evidence presently allow for the admission of mitigating evidence. Any error in the exclusion of mitigating evidence that may occur at trial may be appealed as a matter right to this court. This court can also direct the district court to the body of law that has evolved since Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), regarding the manner of conducting sentencing proceedings and the *1459 instructions that should be provided to the jury-

Cheely has failed to meet the heavy burden of overcoming the presumption of constitutionality of an act of Congress. I would reverse the district court’s determination that the mail bomb statutes violate the Eighth Amendment.

I concur in the majority’s judgment that the district court properly granted the motion to suppress.

. The majority argues that Cheely has standing to attack these statutes because ''[ejven those convicted of heinous crimes ... have a constitutional right to be sentenced in the consistent, rational manner prescribed in Furman." Majority opinion at 1444 n. 11. Although this statement is *1451 true, none of the cases cited by the majority support the contention that a defendant may challenge a statute by recasting a proportionality argument, which he lacks standing to present, in the form of a claim that the statute fails to comply with the mandate of Furman .

. At the time Gregg was decided, Georgia provided for the alternative punishment of death for six crimes: murder, kidnapping for ransom or where the victim was harmed, armed robbery, rape, treason, and aircraft hijacking. See Gregg, 428 U.S. at 162-63 , 96 S.Ct. at 2920 .

. It should be noted that section 794(a) authorized the imposition of the death penalty in the absence of proof that any person was injured or killed as the result of the accused's alleged espionage activities. In Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977), decided seven years before Harper, the Supreme Court held that "death is ... a disproportionate penalty for the crime of raping an adult woman.” Id. at 597 , 97 S.Ct. at 2869 . In Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), the Supreme Court held that the Eighth Amendment does not permit the imposition of the death penalty on one who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Id. at 797 , 102 S.Ct. at 3376 . These Supreme Court decisions suggest that the death penalty may not be imposed absent a homicide.

The appellant in Harper was not accused of taking a human life in the perpetration of the crime of espionage. Section 794(a) did not require proof that another person was killed before the death penalty could be imposed. The panel that decided Harper failed to consider or apply the principle set forth in Coker and Enmund that the death penalty is an excessive punishment for someone who has not taken human life. Perhaps this court's failure in Harper to apply dis-positive decisions of our nation's highest court was caused, at least in part, because counsel for both parties believed that section 794(a) was unconstitutional solely because the statute failed to provide statutory guidelines to control the trier of fact's discretion. Harper, 729 F.2d at 1218, 1225-26 . Had the panel in Harper applied Coker and Enmund , it would have been unnecessary for it to reach out to decide whether section 794(a) was unconstitutional because Congress did not provide guidelines to limit the jury's discretion.