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

36 F.3d 1439 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 August 6, 1993. Decided April 11, 1994. Amended Oct. 3, 1994. Wevley William Shea, U.S. Atty., District of Alaska, Anchorage, AK, James S. Reynolds, Dept. of Justice, John F. De Pue, Dept. of Justice, Mark H. Bonner, Asst. U.S. Atty., Mary Incontro, Tammy Haimov, Dept. of Justice, Washington, DC, for plaintiff-appellant. Nancy Shaw, Federal Public Defender, Anchorage, AK, Richard Kammen, McClure, McClure & Kammen, Indianapolis, IN, James H. McComas, Schleuss & McComas, Richard H. Friedman, Friedman & Rubin, Rich Curtner, Asst. Public Defender, Anchorage, AK, for defendants-appellees. Appeal from the United States District Court for the District of Alaska. Before: SCHROEDER, FLETCHER, and ALARCON, Circuit Judges. 1 Opinion by Judge FLETCHER; Concurrence and Dissent by Judge ALARCON. ORDER 2 Although no petition for rehearing was filed, and no request for en banc rehearing was made by the parties, a member of the court requested en banc rehearing of…

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

ORDER

Although no petition for rehearing was filed, and no request for en banc rehearing was made by the parties, a member of the court requested en banc rehearing of this appeal. The request was put to a vote of all active non-reeused judges. The request did not secure the required majority vote of the active non-recused members of the court.

The panel, of its own motion, called for supplemental briefs on the possible effect of the Supreme Court’s decision in Davis v. United States, — U.S. -, 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994) on its affirmance of the district court order to suppress Cheely’s statements to postal inspectors. It now, by this order, reaffirms its holding but modifies the opinion, United States v. Cheely, 21 F.3d 914 (9th Cir.1994): [Editor’s Note: Amendment incorporated for purposes of publication].

No petition for rehearing will be entertained. The mandate shall issue forthwith.

*1441 OPINION

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…

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…