U.S. v. Cheely, Nos. 92-30257

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtFLETCHER; ALARCON; 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
Citation21 F.3d 914
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Raymond D. CHEELY, Jr.; Douglas P. Gustafson, Defendants-Appellees.
Decision Date11 April 1994
Docket NumberNos. 92-30257,92-30504

Page 914

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.

Page 915

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:

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. Sec. 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. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1988). It decided that the capital sentencing provisions under which Cheely was charged were unconstitutional, and that Cheely's statements to the postal inspectors should be suppressed. We have jurisdiction to hear the government's timely filed appeal of both issues. The provisions of 18 U.S.C. Sec. 3731 (1988) are "intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Woolard, 981 F.2d 756, 757 (5th Cir.) (finding jurisdiction under Sec. 3731 to review district court's order striking death as a permissible punishment for violation of 18

Page 916

U.S.C. Secs. 2, 1111, 1114), reh'g en banc denied, 990 F.2d 819 (5th Cir.1993); 1 United States v. Dominguez-Villa, 954 F.2d 562, 564 (9th Cir.1992) (government may appeal adverse ruling on suppression motion).
DISCUSSION

I. Challenge to the Death Penalty

A. Factual Background

In 1991, Cheely and Gustafson 2 were convicted of Jeffrey Cain's murder. George Kerr, a key witness at the trial, testified that he was in the car with Cheely and Gustafson when they shot and killed Cain. The indictment on which Cheely and Gustafson currently await trial alleges that, after their convictions for the Cain homicide, they devised plans to kill Kerr and others who participated in the trial. From behind bars, Cheely and Gustafson allegedly instructed Gustafson's older brother and sister in the construction of a mail bomb, which they directed be mailed to Kerr's Post Office box in Chugiak, Alaska. Kerr's parents, who were collecting his mail while he was out of the state, opened the box containing the mail bomb. David Kerr, George's father, was killed. Michelle Kerr, George's mother, was seriously injured. Cheely, Gustafson, and Gustafson's siblings were subsequently indicted for, among other things, the mail bomb murder of David Kerr.

B. Constitutionality of Capital Sentencing Provisions

We first consider Cheely's constitutional challenge to the capital provisions under which he was charged, 18 U.S.C. Secs. 844(d) and 1716(a) (1988). A challenge to the constitutionality of capital statutes presents a question of law; we review de novo the district court's resolution of this question. McKenzie v. Risley, 842 F.2d 1525, 1538 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988).

1. Death Penalty Jurisprudence

Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), "sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death." Johnson v. Texas, --- U.S. ----, ----, 113 S.Ct. 2658, 2664, 125 L.Ed.2d 290 (1993). 3 Furman held that a death sentence imposed by a jury exercising unbridled discretion as to whether death should be the penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Capital punishment is unconstitutional when it is "wantonly and ... freakishly imposed," Furman, 408 U.S. at 310, 92 S.Ct. at 2763 (Stewart, J., concurring), pursuant to statutes that provide "no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313, 92 S.Ct. at 2764 (White, J., concurring); see also Gregg v. Georgia, 428 U.S. 153, 196 n. 47, 96 S.Ct. 2909, 2936 n. 47, 49 L.Ed.2d 859 (1976) ("[W]here the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, 428 U.S. 280, 302, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) ("Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and

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Fourteenth Amendments.") (Stewart, Powell, and Stevens, JJ., concurring).

The post-Furman death penalty jurisprudential framework can be quickly sketched. See Blystone v. Pennsylvania, 494 U.S. 299, 308-09, 110 S.Ct. 1078, 1084-85, 108 L.Ed.2d 255 (1990) (quoting McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987)). Beyond the threshold requirement that death must be a penalty proportionate to the crime for which the defendant is convicted, 4 a statute that includes capital punishment as a possible penalty (1) must "genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder," Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), and (2) must not "prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty." Penry v. Lynaugh, 492 U.S. 302, 318, 109 S.Ct. 2934, 2946-47, 106 L.Ed.2d 256 (1989).

The Court noted in Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), that the requisite narrowing could be accomplished in one of two ways: either "[t]he legislature may itself narrow the definition of capital offenses ... so that the jury finding of guilt responds to this concern," 5 or "the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase." Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555. 6

2. Constitutionality of Secs. 844(d) and 1716(a)

The statutory provisions under which the government seeks the death penalty for Cheely are as follows:

Sec. 844. Penalties

....

(d) Whoever transports or receives, or attempts to transport or receive, in interstate commerce or foreign commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, shall be imprisoned for not more than ten years, or fined not more than $10,000, or both; and if ... death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title. 7

18 U.S.C. Sec. 844(d) (1988).

Sec. 1716. Injurious articles as nonmailable

(a) [A]ll explosives, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, ... are nonmailable matter and shall not be conveyed in the mails....

....

Whoever knowingly deposits for mailing or delivery, or knowingly causes to be delivered by mail, ... anything declared nonmailable by this section, whether or not transmitted in accordance with the rules ... with intent to kill or injure another, or

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injure the mails or other property, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.

Whoever is convicted of any crime prohibited by this section, which has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life, if the jury shall in its discretion so direct....

18 U.S.C. Sec. 1716(a), undesignated paragraphs following (i) (1988).

These provisions authorize the death penalty not only for persons who murder by means of mail bomb, but also for a much broader class of less culpable persons. Because these provisions require only an intent to damage property, transmission of explosive or...

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11 practice notes
  • U.S. v. Dickerson, No. 97-4750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 8, 1999
    ...from the Department of Justice. 15 Justice's refusal to invoke § 3501 has not been limited to this Circuit. In United States v. Cheely, 21 F.3d 914 (9th Cir.1994), the Ninth Circuit suppressed an incriminating statement that was obtained in technical violation of Edwards. Id. at 923. Althou......
  • U.S. v. Cheely, Nos. 92-30257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 3, 1994
    ...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): No petition for rehearing will be entertained. The mandate shall issue Page 1441 OPINION FLETCHER, Circuit Judge: The governm......
  • US v. Baker, Crim. No. 95-00416-01 DAE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 16, 1995
    ...101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (all questioning must cease if person in custody requests attorney); United States v. Cheely, 21 F.3d 914, 922-23 (9th It is clear that Detective Peterson's assistance to Special Agent Murphy throughout the investigation, as well as his actions du......
  • U.S. v. Lewis, No. 03-2097.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 19, 2005
    ...than one year.'" Correa, 220 F.Supp.2d at 66 n. 3 (quoting United States v. Cheely, 814 F.Supp. 1430, 1440 n. 8 (D.Alaska 1992), aff'd, 21 F.3d 914 (9th Cir.1994), opinion amended and superseded, 36 F.3d 1439 (9th 4. It is true that at least two courts have found that detention center emplo......
  • Request a trial to view additional results
11 cases
  • U.S. v. Dickerson, No. 97-4750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 8, 1999
    ...from the Department of Justice. 15 Justice's refusal to invoke § 3501 has not been limited to this Circuit. In United States v. Cheely, 21 F.3d 914 (9th Cir.1994), the Ninth Circuit suppressed an incriminating statement that was obtained in technical violation of Edwards. Id. at 923. Althou......
  • U.S. v. Cheely, Nos. 92-30257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 3, 1994
    ...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): No petition for rehearing will be entertained. The mandate shall issue Page 1441 OPINION FLETCHER, Circuit Judge: The governm......
  • US v. Baker, Crim. No. 95-00416-01 DAE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 16, 1995
    ...101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (all questioning must cease if person in custody requests attorney); United States v. Cheely, 21 F.3d 914, 922-23 (9th It is clear that Detective Peterson's assistance to Special Agent Murphy throughout the investigation, as well as his actions du......
  • U.S. v. Lewis, No. 03-2097.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 19, 2005
    ...than one year.'" Correa, 220 F.Supp.2d at 66 n. 3 (quoting United States v. Cheely, 814 F.Supp. 1430, 1440 n. 8 (D.Alaska 1992), aff'd, 21 F.3d 914 (9th Cir.1994), opinion amended and superseded, 36 F.3d 1439 (9th 4. It is true that at least two courts have found that detention center emplo......
  • Request a trial to view additional results

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