U.S. v. Harper

• Decision Date: 24 April 1984
• Docket Number: 84-1037 and 84-7111,Nos. 84-1010,s. 84-1010
• Citation: 729 F.2d 1216
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1216

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:

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 provision constitutional. Harper appeals the order, as well as a subsequent amendment to the order, and also seeks a writ of mandamus directing the district court to vacate the order. On appeal, both parties continue to assert that the death penalty provision of the espionage statutes is unconstitutional. However, the government argues that we do not have jurisdiction over the appeals and that this is not an appropriate case in which to issue a writ of mandamus. We conclude that we lack jurisdiction over the appeals because no final judgment is involved. We hold, however, that this is an appropriate case in which to exercise our mandamus jurisdiction. We further hold that the death penalty provision of the Espionage Act is unconstitutional and void. Accordingly, we direct the district court to vacate its pretrial order.

FACTS

Harper is a defendant in a criminal case set for trial before the United States District Court for the Northern District of California a few weeks hence. He is accused of violating 18 U.S.C. Sec. 794 (1982) by obtaining secret national defense information and knowingly and wilfully transmitting it to an officer of the Polish Intelligence Service with intent and reason to believe that the information would be used The Espionage Act, 18 U.S.C. Secs. 791-99 (1982), provides that a person convicted of violating section 794 "shall be punished by death or by imprisonment for any term of years or for life." 18 U.S.C. Sec. 794(a), (b), (c) (1982). However, the Act contains no guidelines to control the sentencing authority's discretion in determining whether the death penalty is to be imposed.

                to the injury of the United States and to the advantage of the Polish People's Republic and the Union of Soviet Socialist Republics. 1   He allegedly received $250,000 from the Polish government for the information he conveyed. 2
                

At Harper's arraignment, the district court asked both parties for briefs on the applicability of the death penalty provision. Both parties took the position that section 794's death penalty provision had been rendered unconstitutional by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny.

Subsequently, the district court issued an "Order Re Penalty Provision of 18 U.S.C. Sec. 794," in which he determined that the death penalty provision was constitutional. ³ His purpose in issuing the order was two-fold: "(1) to provide the defendant with certain knowledge of the penalties which may be imposed upon conviction; and (2) to determine whether the additional procedural safeguards afforded defendants in capital cases are warranted in the case at hand." The court first determined that capital punishment for acts of espionage is [I]f the penalty stage of this proceeding is reached, the court will apply sentencing guidelines designed to comply with both the legislative mandate requiring that the death penalty be considered when sentencing a defendant upon conviction for espionage, and the eighth amendment requirement that the sentencing authority be suitably guided in determining whether the death penalty, or a lesser penalty, is the appropriate punishment in a given case. The court believes that the articulation of such guidelines, if necessary, will render the penalty provision of section 794 constitutional as applied in its present form.

                not uniformly disproportionate to the severity of the offense and is therefore not unconstitutional per se.    It then proceeded to determine whether the specific provision in section 794 was valid.  The court recognized that the eighth amendment requires that a sentencing authority's discretion to impose the death penalty must be " 'suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,' " (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion)), and it acknowledged that "the sentencing discretion afforded it by section 794 necessitates the formulation of sentencing guidelines which will ensure the reliable imposition of punishment."    The court, however, found section 794 constitutional by reading the section as delegating to district courts faced with death penalty trials the duty to formulate and apply the necessary guidelines
                

Accordingly, in its order the court notified Harper that he was charged with capital crimes punishable by death and that he was entitled to the statutory safeguards applicable in capital cases. The court subsequently issued an amendment clarifying its order. ⁴

Harper originally filed a notice of appeal from the district court's order. He subsequently filed a petition for writ of mandamus and a motion to consolidate his petition with his previously-noticed appeal. He has also filed an appeal from the district court's order amending its previous order. We hereby consolidate the two appeals and the petition for writ of mandamus.

DISCUSSION

I. INTERLOCUTORY APPEAL UNDER 28 U.S.C. Sec. 1291

Harper first asserts that this court has jurisdiction over his appeals under 28 U.S.C. Sec. 1291 (1982), which gives the Court of Appeals jurisdiction to review "all final decisions of the district courts," both civil and criminal. The Supreme Court has recognized that section 1291 authorizes review of some types of interlocutory orders. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ("collateral order" exception to the final judgment rule). Harper argues that his appeals fall within the exception to the final-judgment rule articulated in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

Abney involved an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds. The Court in Abney noted the "firm congressional policy against interlocutory or 'piecemeal' appeals," id. at 656, 97 S.Ct. at 2038, and pointed out that "[a]dherence to this rule of finality has been particularly stringent In arriving at its holding, the Court discussed three aspects of the type of order at issue. First, it noted that the order "constitute[s] a complete, formal, and, in the trial court, final rejection of" the claim the order addresses. Id. at 659, 97 S.Ct. at 2040. Second, it said that "the very nature of [the claim] is such that it is collateral to, and separable from the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged." Id. Finally, the order involved "rights ... [that] would be significantly undermined if appellate review ... were postponed until after conviction and sentence." Id. at 660, 97 S.Ct. at 2040. In subsequent cases, the Court has made it clear that a pretrial order is not appealable if it does not share all three of those characteristics. See United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982); Flanagan v. United States, --- U.S. ---, ---, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984).

                in criminal prosecutions."    Id. at 657, 97 S.Ct. at 2039.  The Court found, however, that the order at issue was within the " 'small class of cases' ... beyond the confines of the final-judgment rule."    Id. at 659, 97 S.Ct. at 2040
                

The instant order clearly satisfies the first two requirements. It constitutes a "complete, formal, and, in the trial court, final rejection of" the defendant's claim that this is not a death penalty case because section 794's death penalty provision is unconstitutional. And the "very nature of" the claim that the death penalty provision is unconstitutional "is such that it is collateral to, and separable from the principal issue at [Harper's] impending trial," i.e., whether or not Harper is guilty of espionage.

It is the third requirement, however, that precludes an interlocutory appeal here. In Abney, the Court said that the rights involved in that case would be significantly undermined if review were postponed until final judgment because the double jeopardy clause protects individuals from "being twice put to trial for the same offense." 431 U.S. at 661, 97 S.Ct. at 2041 (emphasis in original). "Consequently," the Court stated, "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." 431 U.S. at 662, 97 S.Ct. at 2041 (emphasis in original). Similarly, the right guaranteed by the Speech or Debate Clause, which the Court has held may also be vindicated through an interlocutory appeal, see Helstoski v. Meanor, 442 U.S. 500, ...